Transgenderism vs. Free Speech in BC
The British Columbia Human Rights Tribunal (BCHRT) recently decided a case involving a flyer distributed by a street preacher, William Whatcott,
challenging the candidacy for provincial office of a man who identified
publicly as a woman. Whatcott apparently handed out 1500 flyers on
street corners, stuffed them in mailboxes, taped them to doors and even
put a copy on the internet, things that many political campaigners do
today.
Whatcott’s
target was Morgane Oger, a trans-woman running for the leftist New
Democratic Party (NDP) in the 2017 British Columbia election. His flyer
(“Transgenderism vs. Truth in Vancouver-False Creek”) exposed Oger’s
claim to be “a woman born into a male body” as fraudulent. “The truth”
he said, “is there are only two genders, male and female and they are
God-given and unchangeable. Morgan’s DNA will always be male, he will
never have a uterus and no amount of cosmetic surgery, fake hormones, or
media propaganda is going to be able to change these facts.” He
concluded by calling on people not to vote for the Oger or the NDP.
Oger lost the election.
Oger
then filed a complaint with the BCHRT, alleging the flyer violated
section 7 of the Provincial Human Rights Code which, among other things,
prohibited publication of any statement that “indicates discrimination
or an intention to discriminate.” Whatcott defended by denying that the
flyer violates s. 7 and contended that the section itself violates the
Charter’s freedom of speech and religion guarantees along with his right
to distribute it, which is especially important given the electoral
context in which it was disseminated.
A
panel of three concluded, against Whatcott, that the flyer “indicated
an intention to discriminate against Ms. Oger and is likely to expose
her and other transgender people to hatred or contempt.” Whatcott was
ordered to pay Oger $35,000 plus $20,000 in costs. As he is penurious,
the likelihood is that neither amount will ever be paid, and he will
face jail time.
The
panel held that Whatcott discriminated against Oger by stating that
transgenderism is “immoral,” and that “[t]o cast a transgender person as
immoral purely because of their gender identity is the very essence of
discrimination.” It held that the discrimination was “severe,” that it
was “intentional and designed to interfere with her participation in the
political life of this province.” Drawing on “the most insidious myths
about transgender people,” it admonished the electorate to conclude that
Oger “was by sole virtue of her gender identity, unsuitable for public
office.” Oger claimed “the discrimination was ongoing,” that its effects
are “never going to go away,” and that the indignity she suffered “was a
direct result of the discrimination.”
particularly bothered the BCHRT was not that by publicly distributing
the flyer Whatcott created a danger of “imminent lawless action,” or a
clear and present danger -- only that the flyer’s message was
“unacceptable.” Its objections were strictly to the flyer’s substance,
especially to its warning to recipients that transgenders and their
allies might die a second death in Revelation 2:8’s “fire lake,” and its
call to action urging them to tell NDP campaigners that “you won’t vote
for them because you believe in God’s definition of gender and
marriage.” In point of fact, the Tribunal’s objections were strictly
viewpoint-based. If the flyer would have supported transgenderism or
urged people to vote for Oger and the NDP, it would obviously have
passed muster.
The
tribunal found the flyer’s message despicable but was it
“discriminatory?” Citing biblical passages in support of one’s political
preferences or calling on people to vote a for or against a candidate
are not normally considered punishable acts. If they were, the first
would impugn the sermons of almost any evangelical pastor or Muslim
Imam, and the second, almost any political campaigner.
The
tribunal also said that the flyer is but a “modern version of a whites
only sign...an attempt to block the doors of government with the message
that the political realm is for ‘cisgender people only.’” This analogy
reveals more than intended, for it casts Whatcott’s flyer not as the
work of the private individual he is, but as an order of a duly
authorized and empowered state official he isn’t.
Consider
the following: if, without your permission Whatcott put a sign in the
front of your house which says “whites only” would it have the legal
effect of preventing non-whites from entering your premises? Or a sign
saying “cisgender people only” on the front door of the city hall?
Obviously neither sign would carry any legal weight requiring obedience,
and the reason they wouldn’t is the reason why the panel’s entire
“discrimination” argument fails.
We
know what it means to say a state official, ruling, or law
“discriminates” against an individual or a group -- it occurs every time
a state official, policy, or law advantages or disadvantages one
individual or group over another by the exercise of its legal power. And
we know what it means to say a hotel, restaurant owner, or landlord
illegally discriminates against potential customers or tenants by
refusing them service or accommodations; but what does mean to say that
the speech of a private individual like Whatcott, who lacks even the
authority or power of a landlord, is “discriminatory” in any sense other
than the most trivial and nonpunitive? (E.g., “I don’t like [choose
your favorite “vulnerable” group]; I prefer to hang with Asians.” I am
“discriminating” here; should I be forced to hang with you?)
The
ultimate irony in the tribunal’s discrimination argument is that it
isolates the wrong target, for while Whatcott’s public statements carry
no authoritative “discriminatory” weight, those of the tribunal’s
members do, and, what’s more, they carry the police power of the state
to enforce them.
The
tribunal falls back on the claim that, even if unsuccessful, Whatcott
still violated the code because he “intended” to discriminate against
Oger. However, its argument for this proposition depends on the
ludicrous proposition that he should be punished for intending something
he couldn’t plausibly accomplish.
I
conclude: Whatcott’s words discriminated against no one in any sense
other than the most trivial. Nor was any evidence submitted to show they
caused anyone to discriminate against anyone else. Unfortunately, the
same cannot be said for the court, which used its legal authority to
discriminate against him, his allies, his religious, educational, and
political messages, and anyone else holding similar views. So much for
Canada’s vaunted free expression “guarantee.” Its message to Canadians
is: “say what we want or shut up altogether.”
challenging the candidacy for provincial office of a man who identified
publicly as a woman. Whatcott apparently handed out 1500 flyers on
street corners, stuffed them in mailboxes, taped them to doors and even
put a copy on the internet, things that many political campaigners do
today.
Whatcott’s
target was Morgane Oger, a trans-woman running for the leftist New
Democratic Party (NDP) in the 2017 British Columbia election. His flyer
(“Transgenderism vs. Truth in Vancouver-False Creek”) exposed Oger’s
claim to be “a woman born into a male body” as fraudulent. “The truth”
he said, “is there are only two genders, male and female and they are
God-given and unchangeable. Morgan’s DNA will always be male, he will
never have a uterus and no amount of cosmetic surgery, fake hormones, or
media propaganda is going to be able to change these facts.” He
concluded by calling on people not to vote for the Oger or the NDP.
Oger lost the election.
Oger
then filed a complaint with the BCHRT, alleging the flyer violated
section 7 of the Provincial Human Rights Code which, among other things,
prohibited publication of any statement that “indicates discrimination
or an intention to discriminate.” Whatcott defended by denying that the
flyer violates s. 7 and contended that the section itself violates the
Charter’s freedom of speech and religion guarantees along with his right
to distribute it, which is especially important given the electoral
context in which it was disseminated.
A
panel of three concluded, against Whatcott, that the flyer “indicated
an intention to discriminate against Ms. Oger and is likely to expose
her and other transgender people to hatred or contempt.” Whatcott was
ordered to pay Oger $35,000 plus $20,000 in costs. As he is penurious,
the likelihood is that neither amount will ever be paid, and he will
face jail time.
The
panel held that Whatcott discriminated against Oger by stating that
transgenderism is “immoral,” and that “[t]o cast a transgender person as
immoral purely because of their gender identity is the very essence of
discrimination.” It held that the discrimination was “severe,” that it
was “intentional and designed to interfere with her participation in the
political life of this province.” Drawing on “the most insidious myths
about transgender people,” it admonished the electorate to conclude that
Oger “was by sole virtue of her gender identity, unsuitable for public
office.” Oger claimed “the discrimination was ongoing,” that its effects
are “never going to go away,” and that the indignity she suffered “was a
direct result of the discrimination.”
What
particularly bothered the BCHRT was not that by publicly distributing
the flyer Whatcott created a danger of “imminent lawless action,” or a
clear and present danger -- only that the flyer’s message was
“unacceptable.” Its objections were strictly to the flyer’s substance,
especially to its warning to recipients that transgenders and their
allies might die a second death in Revelation 2:8’s “fire lake,” and its
call to action urging them to tell NDP campaigners that “you won’t vote
for them because you believe in God’s definition of gender and
marriage.” In point of fact, the Tribunal’s objections were strictly
viewpoint-based. If the flyer would have supported transgenderism or
urged people to vote for Oger and the NDP, it would obviously have
passed muster.
The
tribunal found the flyer’s message despicable but was it
“discriminatory?” Citing biblical passages in support of one’s political
preferences or calling on people to vote a for or against a candidate
are not normally considered punishable acts. If they were, the first
would impugn the sermons of almost any evangelical pastor or Muslim
Imam, and the second, almost any political campaigner.
The
tribunal also said that the flyer is but a “modern version of a whites
only sign...an attempt to block the doors of government with the message
that the political realm is for ‘cisgender people only.’” This analogy
reveals more than intended, for it casts Whatcott’s flyer not as the
work of the private individual he is, but as an order of a duly
authorized and empowered state official he isn’t.
Consider
the following: if, without your permission Whatcott put a sign in the
front of your house which says “whites only” would it have the legal
effect of preventing non-whites from entering your premises? Or a sign
saying “cisgender people only” on the front door of the city hall?
Obviously neither sign would carry any legal weight requiring obedience,
and the reason they wouldn’t is the reason why the panel’s entire
“discrimination” argument fails.
We
know what it means to say a state official, ruling, or law
“discriminates” against an individual or a group -- it occurs every time
a state official, policy, or law advantages or disadvantages one
individual or group over another by the exercise of its legal power. And
we know what it means to say a hotel, restaurant owner, or landlord
illegally discriminates against potential customers or tenants by
refusing them service or accommodations; but what does mean to say that
the speech of a private individual like Whatcott, who lacks even the
authority or power of a landlord, is “discriminatory” in any sense other
than the most trivial and nonpunitive? (E.g., “I don’t like [choose
your favorite “vulnerable” group]; I prefer to hang with Asians.” I am
“discriminating” here; should I be forced to hang with you?)
The
ultimate irony in the tribunal’s discrimination argument is that it
isolates the wrong target, for while Whatcott’s public statements carry
no authoritative “discriminatory” weight, those of the tribunal’s
members do, and, what’s more, they carry the police power of the state
to enforce them.
The
tribunal falls back on the claim that, even if unsuccessful, Whatcott
still violated the code because he “intended” to discriminate against
Oger. However, its argument for this proposition depends on the
ludicrous proposition that he should be punished for intending something
he couldn’t plausibly accomplish.
I
conclude: Whatcott’s words discriminated against no one in any sense
other than the most trivial. Nor was any evidence submitted to show they
caused anyone to discriminate against anyone else. Unfortunately, the
same cannot be said for the court, which used its legal authority to
discriminate against him, his allies, his religious, educational, and
political messages, and anyone else holding similar views. So much for
Canada’s vaunted free expression “guarantee.” Its message to Canadians
is: “say what we want or shut up altogether.”
