CARPAY: Free speech trampled in the name of human rights

My 2019 new year’s wish is for more freedom in Canada, particularly freedom of expression. 

But the continued regulation of speech by Human Rights Commissions and Tribunals make it unlikely that my wish will come true this year.

The Oger v. Whatcott trial

Case in point: the self-described “Christian truth activist” William Whatcott awaits a verdict from the British Columbia Human Rights Tribunal. 

The legality of the flyers he peacefully distributed during BC’s 2017 provincial election is at stake.

Whatcott’s flyers criticized Morgane Oger, NDP candidate for Vancouver-False Creek. 

Oger was born biologically male, and has fathered two children before identifying as female.  After losing the election, Oger filed a human rights complaint against Whatcott, whose flyers expressed Whatcott’s concern about “the promotion and growth of homosexuality and transvestitism in British Columbia.” 

The flyer states that Oger’s DNA “will always be male” and “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.” 

Whatcott argues that transgenderism is an impossibility: “A male cannot ‘transition’ into a female, nor can a female ‘transition’ into a male. One can only cross dress and disfigure themselves with surgery and hormones to look like the gender they are not.”

Questions about gender and transgenderism are the subject of heated debates among parents and the public at large, as well as medical doctors, psychiatrists, and other scientists, not to mention psychologists, theologians, and lawyers. 

Oger and Whatcott have competing and irreconcilable opinions about what is true.  As do all Canadians, about many topics, not just transgenderism.

But Oger was not – and is not – satisfied with allowing unsupervised public debate to continue freely. 

Flaws with the human rights tribunal

Oger claims a legal right to compel others to use the right pronoun, and to be regarded as being female. 

Those who boldly assert that Oger is masculine and male can find themselves on the receiving end of a human rights complaint.

In a free society, citizens decide for themselves what is true or false; government does not dictate the “correct” answers. 

Many debates are never fully settled; discussions about right and wrong continue indefinitely. 

Vigorous debate empowers citizens with the opportunity to think critically, and allows for truth to emerge from the clash of ideas. 

In contrast, when everyone thinks alike, nobody thinks very much.

This healthy process of argument and counter-argument is seriously harmed when Human Rights Tribunals are empowered to settle the public debates about transgenderism on behalf of everyone, for example, by ruling on whether Whatcott’s flyers violate BC’s Human Rights Code.

There are at least two problems with the tribunal’s power to punish politically incorrect speech it views as discriminatory or hateful. 

The biggest problem is a government body using the state’s coercive power to settle a raging public debate. 

A second problem is that when the Tribunal settles the debate over transgenderism, it makes no effort to review and evaluate scientific evidence in order to determine truth. 

Feelings trump facts in tribunals

Feelings matter more than science.

At the December 11-17 hearing, Oger explained at length and in great detail that Whatcott’s flyer was very hurtful and offensive. 

The Tribunal expressly refused to hear testimony from expert witnesses as to whether Oger’s beliefs or Whatcott’s beliefs are true. 

Faced with Oger’s human rights complaint, based in essence on hurt feelings, Whatcott could not call upon truth as a defence in those proceedings. 

In fact, tipping its hat to how it will likely decide this case, the Tribunal insisted that all participants in the legal proceedings refer to Oger with female pronouns.

For the state to compel people to say things they believe to be false, under threat of penalty, is a violation of human dignity. 

When government bodies have the power to punish “incorrect” speech, it becomes impossible to engage in the essential democratic discourse and debate that is necessary in order for truth to emerge from the clash of ideas. 

Freedom of expression is especially important during an election campaign. 

The public have a right to hear differing views on candidates and political parties.

Ultimately, Canadians will have to decide what matters more: the right to express unpopular or offensive opinions in a peaceful manner, or a legal right to be free from hurt feelings.  We can’t have both.

John Carpay is president of the Justice Centre for Constitutional Freedoms, which intervened before the BC Human Rights Tribunal in the Oger v. Whatcott.