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Where's the line of hate speech?

9/23/2013

The Supreme Court of Canada has drawn the line between what counts as 'hate speech' - and is therefore prohibited - and what is protected 'free speech'. In Saskatchewan v Whatcott, Whatcott had circulated pamphlets saying things like "Keep Homosexuals out of schools" and "Keep Sodomites Out of Schools".
The court said that free speech, including free speech about political issues, and freedom of religion are protected rights -- but subject to the limitation that it not be hate speech.
How do you tell if speech is hate speech? The court said that the test is an objective one: Would a reasonable person, aware of the relevant context and circumstances, find the speech to expose or likely to expose people to detestation and vilification. Speech which merely ridicules someone is not hate speech. Speech in private is not hate speech; and speech directed personally at an individual is not hate speech.

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Trans Rights Bill Passes In House of Commons

3/22/2013

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Gender Identity added to Federal Laws

Yesterday, the House of Commons passed a law adding ‘gender identity’ to the list of protected grounds under the Canadian Human Rights Act and the Criminal Code.

NDP MP Randall Garrison introduced the legislation as a private member’s bill. In his version, the words ‘gender identity and gender expression’ would have been added to both laws.

But in the process of getting the law passed, compromises were made. The law now extends only to ‘gender identity’, and that term (unlike other prohibited grounds) is defined. The definition says “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

The result of the amendments is two fold. Though trans people have been consistently successful complaining about discrimination under the Canadian Human Rights Act on the grounds of ‘sex’, the addition of this new ground makes it visible to everyone that trans people are protected. That is an important public education function.

The second protection for trans people is in the ‘hate crimes’ section of the Criminal Code. That section provides for increased sentencing where it can be shown that a crime was motivated by bias, prejudice or hatred against an identifiable group. ‘Gender identity’, defined in the same way as in the Canadian Human Rights Act, has been added to the list.

The change to the Criminal Code is important, but applying it is sometimes a problem, since assailants do not necessarily shout “I am beating you up because of your gender identity!” Unless there is some evidence that that was the motive, courts have not used the sentencing provisions much.

The bill will not take effect until it is considered by the Senate (who can amend it) and given royal assent.

You can find the full bill at http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6053237

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No to Hate Speech about Queers, says Supreme Court of Canada (but...)

2/27/2013

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The Supreme Court of Canada today issued an important decision about hate speech directed at queers.

The background to the case concerned four documents: two flyers, one called "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools"; and two flyers which were the reprint of a classifed ad with handwritten comments added.

Under the Saskatchewan Human Rights code, it is illegal to circulate publications which "expose a person to hatred and ridicule" on a protected ground - here, sexual orientation.

So the big question for the court was: where does prohibited hate speech end, and where does freedom of speech begin?

The Supreme Court of Canada analyzed what a publication must be like in order to contravene the hate speech provisions. It said that there must be three main elements. First, the person judging whether the publication contains hate speech must do so from an 'objective' point of view, asking themselves whether a 'reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred'. (In other words, you cannot only ask queers what they think about that question). Second, it is only hateful and contrary to the protections in Saskatchewan's human rights legislation if it is really hateful...in the sense captured by the words 'detestation' and 'vilification'. It's not hate speech just because it is repugnant or offensive. And finally, the decision maker must look to see what the effect of the hate speech is: is the probably effect that it will expose the targeted person or group to hatred by others?

The complainants had argued that the section of the human rights law under which they had been convicted was a breach of their constitutionally protected right to freedom of speech. True, said the Supreme Court of Canada: but, your right to freedom of speech has to be balanced against the right to be free from speech which is likely to cause hatred; and in this case, most of the human rights law is appropriate and impairs one's freedom of speech minimally.

Part of the Saskatchewan human rights legislation outlawed speech which "ridicules, belittles or otherwise affronts the dignity of" a person. That part of the law, said the Supreme Court of Canada, is too broad. And they struck it down.

This case has been long-awaited. Queers have been holding our breath to see whether the Supreme Court of Canada would uphold our right to be free from malicious homophobic speech, or whether once again our rights would be seen as subordinate to someone else's rights to free speech, or freedom of religion.

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Mistaken Identity: when a woman is read as a man

11/1/2012

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Sheila Gilhooly has published a fabulous new book, "Mistaken Identity" , stories about her life being (mis)taken for a man. Though cisgendered Sheila is read as male about 70% of the time.
The stories are chilling, hilarious, triumphant.
There will be a launch at Little Sisters - we'll keep you posted. And the book is available for preview - go to Sheila's website
http://sheilagilhooly.wordpress.com, and click at the bottom of the page.
Full disclosure: I am Sheila's partner and wrote the afterword.

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University must permit anti-gay leafletting

5/11/2012

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Whatcott went to the University of Calgary to distribute anti-gay leaflets. The University charged him with trespassing. Whatcott argued successfully that the university cannot charge him with trespassing in those circumstances, because his right to distribute anti-gay leaflets is protected by the guarantee of freedom of expression in the Charter of Rights.
For the complete decision: R v Whatcott
http://www.canlii.org/eliisa/highlight.do?text=whatcott&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ab/abqb/doc/2012/2012abqb231/2012abqb231.html

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Where's the line of hate speech?

Trans Rights Bill Passes In House of Commons

No to Hate Speech about Queers, says Supreme Court of Canada (but...)

Mistaken Identity: when a woman is read as a man

University must permit anti-gay leafletting

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