Limiting Transphobic Speech


Limiting Transphobic Speech

Recently, there have been a number of cases dealing with the intersection of freedom of speech and the rights of transpeople in Canada. Most of these cases have recognized that the constitutional guarantee to freedom of expression must give way to the rights of transpeople to be free of speech that challenges their very existence. These rulings have begun to establish a floor for what the basic right to exist with dignity looks like for transpeople.

The most significant case in this trend is the BC Human Rights Tribunal’s (the “Tribunal”) decision in Oger v Whatcott (No 7), 2019 BCHRT 58 (“Oger”). The complainant was a transgender woman who ran in BC’s 2017 provincial election. During her campaign, the respondent, Mr. William Whatcott1, created and disseminated a flyer that referred to the complainant by her dead name2 and described transpeople as an “impossibility.” The complainant filed a human rights complaint against Mr. Whatcott under s.7(1) of BC’s Human Rights Code, RSBC 1996, c 210 (the “Code”), which protects against publications that are hateful and that evince an intention to discriminate.

The Tribunal agreed that the flyer violated s.7(1) of the Code. In reaching this decision, the Tribunal held that speech that challenges or denies the existence of transpeople cannot receive any protection under the right to freedom of speech. In particular, the Tribunal found that this speech cannot constitute political speech, as it is no longer legitimate to debate the existence of transpeople. It also found that the myth that transpeople are impossible dehumanizes transpeople and exposes them to vilification and contempt, and likely constitutes hate speech.

Another important case for transrights in Canada, and in particular the rights of transgender children, is the BC Court of Appeal’s decision in A.B. v C.D., 2020 BCCA 11 (“A.B.”). A.B. is the transgender son of C.D. and his ex-spouse. C.D. was opposed to A.B. accessing gender-affirming medical care, and sought to enjoin A.B. from doing so. As the matter was proceeding, C.D. spoke publicly about the case and refused to refer to A.B. by his preferred name and pronouns.

The BC Supreme Court found that C.D.’s behaviour constituted family violence (A.B. v C.D. and E.F., 2019 BCSC 254) and issued a protection order barring C.D. from misnaming and misgendering A.B. and speaking about the case (A.B. v C.D. and E.F., 2019 BCSC 604). In A.B., the Court of Appeal overturned both decisions, but reinstated many of the restrictions on C.D.’s speech via a conduct order. The Court acknowledged that C.D.’s right to freedom of speech was engaged, but held that the limitation was justified as it was in A.B.’s best interests. The Court ordered C.D. to acknowledge A.B.’s gender identity, to refer to A.B. by his chosen name and pronouns and to refrain from speaking to the media about A.B. and the case.

There is another case pending in BC that raises questions regarding how far the legal protection against transphobic speech extends when the speech is political. In 2018, the BC Teachers’ Federation filed a human rights complaint against an elected school trustee in Chilliwack, BC, claiming that a number of public comments he made about the Chilliwack School District’s adoption of policies to promote the inclusion of LGBTQ+ students constituted hate speech. If it proceeds, the Tribunal will have to determine whether elected officials are entitled to engage in transphobic speech by virtue of their position as political office-holders.

The decisions in Oger and A.B. recognize the right of transpersons to exist without existential challenge, and have established a foundation for the meaningful legal protection of transpersons in Canada. Hopefully, the scope of this protection will continue to expand as decision-makers grapple with the line between free speech and transphobia.  

  1. Mr. Whatcott and his flyers have previously been the subject of a human rights case in Saskatchewan, which ultimately resulted in the Supreme Court of Canada’s ruling in Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11, in which the Court established the threshold for hate speech under Canadian human rights law. |
  2. A “dead name” refers to the birth or otherwise former name of a trans or non-binary person. |