Most “Free speech” advocacy is demanding the right to preach hatred, contempt, or fear-mongering about vulnerable groups, but harassing trans people should no more be protected speech than shouting “Fire!” in a crowded theatre.
Under the law of British Columbia, no-one should publish a statement indicating discrimination or an intention to discriminate. These are as offensive as the “Whites Only” signs that used to disfigure some businesses. Morgane Oger stood for election in British Columbia, and William Whatcott published a leaflet attacking her as immoral because she is trans. So she sued. In Oger v Whatcott, the judge Devyn Cousineau explained the rules: The question of whether transgender people exist and are entitled to dignity in this province is as valuable to ongoing public debate as whether one race is superior to another.
She said the long fight for equality of trans people is bearing fruit, as society increasingly tolerates different gender expression, but some like Whatcott insist on debating and condemning us, arguing we are less worthy of dignity, respect and rights. We suffer disadvantage, prejudice, stereotyping, and vulnerability, discrimination in employment, housing, health care and other services, and violence. This results in social isolation and higher rates of poverty and substance use. In the Human Rights Code the Legislature intended to foster a society where we are equal in dignity and freedom.
Whatcott sought to argue that our poverty was an argument against our “lifestyle choice” which he said should be discouraged. He argued our transition, rather than his and others’ oppression, was the problem.
We are underrepresented in political life. Democracy is enhanced when a diverse populace participates. Power from social status can overwhelm political discourse- at one time most MPs were upper class white men. There are no trans MLAs in Canada. This undermines the integrity and effectiveness of democratic institutions. Whatcott’s flyer was intended to continue trans exclusion.
The law against discriminatory statements, and its purpose of achieving equality, had to be balanced against Whatcott’s right to freedom of religion and freedom of expression. Whatcott’s sincere religious belief is that it is his duty to preach against trans people. He said he produced the leaflet after asking God how he could help in the election. His belief that trans people are a falsehood is based on his understanding of the Bible. The right not to be discriminated against, and the rights to freedom of religion and expression, both promote a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. The Human Rights Code, and the Canadian Charter of Rights and Freedoms, both have the purpose of eliminating discrimination.
British Columbia has prohibited discriminatory publications since 1961, originally modelled on Ontario’s Racial Discrimination Act, intended to combat those “Whites Only” signs. Free speech was as subject to the prohibition of discrimination as it is to slander. Tribunal cases have found against campaigns against First Nations peoples and LGBT+ people, but not against Mormons for alleging they were marrying girls aged 14. So the Human Rights Code is not targeting hate speech, but discrimination: it is not just offensive, but it intends to produce a real-world effect.
The right to free expression, guaranteed by s. 2(b) of the Charter, serves three purposes: fostering Canada’s democracy, enabling the search for truth, and nourishing self‐fulfillment. These values are essential to a free and democratic society: respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. Speech which detracts from these values has less value as “free speech”.
Whatcott claimed his flyer, published during an election campaign, was political speech, having the highest value as free speech enriching democracy. Ms Oger claimed the flyer was intended to exclude trans people from the political process and reject diversity. The judge agreed. Merely arguing how people should vote does not give the flyer inherent value.
Free expression allows people to participate in politics. Hate speech and discriminatory speech prevents that. Free speech lets voters weigh the candidates and parties, and consider opposing views of issues. The flyer aims to exclude marginalised trans people. It ignores Ms Oger’s inherent dignity. The flyer is not political speech because it does not engage in debate about social policy.
Whatcott argued the flyer concerned the issue of Ms Oger’s character. The only alleged problem with her character was that she is trans. The judge left open the possibility that debate about conflicting rights of different groups in society was protected, but the desire to debate whether trans people are deluded or deceiving is at the root of anti-trans prejudice and oppressive stereotypes. Being trans is not a moral choice or a measure of integrity, but part of one’s identity, said the judge.
Freedom of religion should not protect Whatcott. He can still hold his repulsive beliefs, but not express them in a way which infringes other people’s rights, such as trans people’s right to be treated as “human beings equally deserving of concern, respect and consideration”. This small infringement of Whatcott’s rights is necessary in a multicultural, democratic society.
BC law does not require proof that the discriminatory publication had its intended discriminatory effect. It deals with the objective intention of the flyer.
The prohibition on hate speech has a different purpose. Hate speech curtails the ability of affected groups to participate in debate. Some of the most damaging hate rhetoric can be characterized as ‘moral’, ‘political’ or ‘public policy’ discourse.
We should not overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred or discrimination against an identifiable group are true, or that their vision of society will lead to a better world.
Hate speech is, at its core, an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. When people are vilified as blameworthy or undeserving, it is easier to justify discriminatory treatment. The objective of the law may be understood as reducing the harmful effects and social costs of discrimination by tackling certain causes of discriminatory activity.
Hate speech harms individuals who are humiliated and degraded, and society by making particular groups be treated as inferior. It desensitises people to the humanity of the persecuted. It might be difficult to prove any hate speech caused particular harm, and therefore it should not be necessary. Its effects are insidious.
The effect of prohibited hate speech is to create an out-group, of people whom the haters will look down and despise. It incites abhorrence and rejection, enmity and extreme ill-will. Hate vilifies, abuses, denigrates or delegitimises, rather than merely discrediting, humiliating or offending.
The aim is to expose the target group to detestation, not mere disdain and dislike, to render them unworthy of the protection of the law or society, to call them dangerous. Hate denies our worth as human beings, and accuses us of being disgusting, immoral, deficient or vile. It sets us apart, not proper members of society.
Hate can blame us for problems in society, and say we are all as bad as the worst of us. Hate talks of a trans rapist and says non-trans women should be as frightened of any trans woman as of her. Or gay men are compared to paedophiles, Jews to a global conspiracy, Tutsi to cockroaches. None of this hate deserves the protection of free speech, because it damages society as well as hurting individuals.
Even if it is true that Ms Oger was “born male”, that makes no difference. Truth can be presented in a way that foments hate. The use of any true statements in the flyer poses the same risk of harmful effects that false statements provoke. Whatcott may have succeeded in turning true statements into a hateful message, but it is still hateful. The judge found against Whatcott, and ordered him to pay $55,000.