I trust that our online paths have crossed often enough for you to know that I generally enjoy your work and I think you produce essays which stand on their own merits. I was not kept abreast of the Facebook “shitstorm,” as you put it, because I am never on Facebook except when I’m shamelessly promoting a blog post such as this, but I did think the vitriol of some of the comments on your “How to save the Canadian Theatre” piece seemed outbalanced and unfair.
All that being allowed, I have to say that your latest column in the Toronto Sun, in which you offer a stumbling defence of Jordan Peterson, is an unfortunate work; as a piece of argumentation it is ill-informed, lazy, and well beneath the standard which I’ve become accustomed to enjoying from you.
You remarked lately on Twitter that you’re a “disillusioned liberal gone left,” and indeed, you seem to be undergoing some effort to let everyone know it; well, to borrow a potentially spurious tag about a certain Teamsters representative: being a leftist is a bit like being ladylike; if you have to say that you are, you probably ain’t. No matter how many times you repeat your claim to “leftist” bona fides, you can’t simply affirm what has to be proven. It’s not that I doubt you; it’s just that I sort of wish you wouldn’t keep saying it all the time.
Jordan Peterson has lately appointed himself a critic of the federal Liberal government’s proposed Bill C-16, a brief amendment to the Canadian Criminal Code and Human Rights Act. The amendment consists in adding “gender identity” and “gender expression” – previously non-enumerated by the Charter – to those sections of the relevant legislation that prohibit discrimination and “hate speech” towards identifiable groups. The thrust of Peterson’s advocacy, echoed and enthusiastically embraced by you, is that this constitutes a “serious restriction of freedom of speech”. You write that it is “necessary,” therefore, to defend Jordan Peterson. Plainly, such a thing is “necessary” if and only if the following conditions can be satisfied:
- his factual claims (premises) are true;
- his assumptions are reasonable;
- his conclusions are justifiable.
This being the case, let us turn now to a more careful study of what it is we’re meant to be “defending.”
Central to Peterson’s objection, and yours, is the claim that Bill C-16 marks “[the first time that] the government, advised by radical leftist social justice warriors, has decided what we must say, instead of what we can’t say.” Or, as you put it (rather more hysterically):
The left should be freaking out over a federal law proposing not just to restrict speech…but require it. A legal principle has a lasting and general applicability. Today that principle could make it criminally punishable not to call someone “ze” if that’s what ze wants…
It’s unclear which “radical leftist social justice warriors” now populate the center-right administration of the Trudeau government, but never we mind. The propositions you both make here can be easily tested against the existing facts. The text of the Bill itself, readily available to anyone with access to Google and a clue, contains no mention of gender pronouns whatsoever. We must look elsewhere for proof of your claims.
As you know, the relevant sections of the Canadian Criminal Code are §318 and §319. The former reads as follows:
As there is no conceivable way the use or misuse of pronouns can be construed as “advocating genocide”, your claim fails its first test. Perhaps it will fare better w/r/t §319. Let us examine both of its concomitant parts in order:
The relevant phrase here, of course, is “breach of the peace.” As we’ll continue to see, both you and Mr. Peterson rely on prima facie readings of the specific text of legislation as the source of its meaning; this is not at all how laws function, as you would know had either of you bothered to do even basic research on the matter. “Breach of the peace,” while prima facie vague and undefined, has a specific legal meaning which has been determined by decades of juridical precedent.
We find the salient definition in Frey v. Fedoruk et al., a 1950 Supreme Court of Canada case in which the presiding judge, Justice Kerwin, defined a “breach of the peace” with reference to the 10th edition of Clerk and Lindsell on Torts:
This remains standard. It is, I think quite obviously, an extraordinarily high burden of proof for any accuser to bear. Moreover, it puts you and Mr. Peterson in a rather uncomfortable conceptual pretzel: in order to prove that Bill C-16 risks the kinds of censorship you describe, you have to prove that the refusal to use particular personal pronouns carries a probable risk of physical violence against trans people and the gender-nonconformist; then, in order to defend the position you began with, you need to demonstrate that this violence is preferable to the curtailing of free pronoun-use. This is the essence of the Oakes test, and not only have neither you nor Mr. Peterson attempted it, it seems to not have even occurred to you that might need to.
So far, Peterson’s claims have turned out to be factually incorrect, in a very basic sense, when tested against the actual text, context, intent, and praxis of two thirds of the relevant sections of the Canadian Criminal Code. We shall now direct our attention to the last third, §319(2), which is a more complicated matter and deserves serious consideration:
There are principled and sophisticated arguments to be made against the inclusion of §319(2) in the Criminal Code, not least by the Canadian Civil Liberties Association, of which I am a member. Sadly, neither you nor Mr. Peterson appear interested in making them. I don’t see any particular need to make them for you; you may seek them out, should you care to.
As it stands, we must address your actual claims and actual arguments w/r/t Bill C-16, and compare them against the facts of the matter: how §319(2) has been used and interpreted in the past (it’s juridical precedent), and what reasonable assumptions there are to be made about its use post-Bill C-16.
Peterson’s claim, which you amplify, is that Bill C-16 would make it “illegal” for an individual to refuse to use the chosen pronouns of a trans person or gender non-conformist. Given that the text of the Bill – and the sections of the Criminal Code and Human Rights Act it affects – make not a single mention of pronouns, what is his evidence of this? He refers only to a single line of definitional text in the Ontario Human Rights Code:
Here we see quite clearly that Jordan Peterson – and by extension, you, in this instance – is quite simply a vulgar propagandist and not a scholar. If he had bothered to learn anything about the way Canadian law works, he would know that the Ontario Human Rights Code is a piece of provincial legislation (hence “Ontario”) designed to remedy civil grievances. That you both fail to apprehend even the most basic difference between federal criminal law and provincial civil law is really quite remarkable.
In his YouTube lecture of September 27th, whence this whole business began, Peterson attempts to bridge the space between these two discrete pieces of legislation by employing equal measures of dishonesty and paranoia, evoking a sense of conspiracy that would be at home in any Donald Trump speech. He claims that, despite not having time “to do this properly” (20:10) and without having read “extensively (because extensively would be a lot)” (5:10) about the issues underlying the matter – in other words, without knowing what he’s talking about – he feels “scared” by the new legislation. He feels that the Ontario Human Rights Commission is “the biggest enemy of freedom currently extant in Canada” (31:39), which is the sort of thing one expects to find written in feces on the wall of a bathroom stall. Then again, what else could one expect from a man who finds a bank’s decision to no longer use the word “flip-chart” (because “flip” is a derogatory term for people from the Philippines) as “reminiscent of the worst of the ideologues in the 1980s and before that” (13:50 – referring I guess to Ceaușescu or something)? It’s a comparison that would make Lady Bracknell proud.
According to Peterson, “social justice warrior-type activists are overrepresented in the current provincial government” (31:56 – names, please?). This, according to him, is because “the current premiere is a lesbian in her sexual preference” (32:09). It follows, in the peyote dream of Peterson’s logic, that because the LGBT community has a “very sophisticated radical fringe” and he “can’t help but see the hand of that” in the relevant portions of human rights law he cites (32:35), that the same cabal of SJWs who wrote the OHRC legislation are also behind Bill C-16 and the relevant changes, and (we might suppose) are also fixing the global market and replacing politicians with lizardmen as well.
He says all of that while presenting a slide that looks like this:
“Wording on their site…is identical to that on the Canadian Department of Justice.”
Note that this is the sole piece of evidence Peterson gives to support his claim that Bill C-16 will incorporate the policing of pronouns into the Criminal Code: that the Department of Justice has “identical wording” in its definition of gender expression to the Ontario Human Rights Commission. I feel the need to stress this a third time. He claims that in 2013, “radical SJW-type activists” wrote changes to the OHRC; he then claims that these same people contributed to Bill C-16, three years later, and that therefore (!?) it “criminalizes” pronoun misuse, and his proof of this is that a section of text from the Department of Justice (!?!?) is “identically” worded. This is so logically tenuous, to say nothing of legally and politically ignorant, that it’s frankly shocking that Peterson is allowed anywhere near a classroom.
More to the point: it isn’t even true.
Here is gender expression as defined by the Canadian Department of Justice:
Here are the two definitions side-by-side:
Clearly, Jordan Peterson uses the word identical differently than we do on planet Earth.
Section 7.4 of the Ontario Human Rights Code states that gender-based harassment can include “Refusing to refer to a person by their self-identified name and proper personal pronoun.” This is the only piece of legislation that mentions this. It is a piece of provincial civil legislation, and has no established binding force on Bill C-16.
Nevertheless, let’s humour Mr. Peterson and take a closer look at it. The dichotomy both he and you have erected between “restrict[ing] speech” and “requir[ing] it” is a false and sophistic one, based purely on semantics, as quickly becomes apparent when one thinks about it for more than the thirty seconds it takes to dismiss it as a nefarious creation of the “censorious left.” Consider the following thought-experiment:
Suppose I am a professor of some scientifically dubious field like, say, clinical psychology. Suppose it is my radical, countercultural view that black people are not truly human. Sure, there is an enormous body of scientific and conceptual work that seems to indicate otherwise – but I remain unconvinced. I’ve read books that seem to show that black people are more stupid than white people. In fact, there are scientific studies that suggest that black people are genetically more similar to bonobos and chimps.
I have friends and colleagues who are also not convinced that black people are human, really, but are afraid of the PC backlash from radical, SJW neo-Marxists should our views become public. Sometimes I go home after work and make excruciatingly dull YouTube videos in which I talk about how I don’t think black people are human, and sometimes the university at which I teach sends me letters telling me to stop.
However, I am principled, so I continue to persist in my view that black people aren’t human. Now, there is a student in my class who is black. I am not mean to this student. I don’t treat the student any differently than I do the others. However, the student insists on having me refer to it as “Michael.” It also takes offense when I refer to it as “it,” even though this is the pronoun I use when I encounter animals in other circumstances. I find it silly to imagine that an animal should be able to choose its name and pronoun. Instead, I call it Barnabas, which is a much funnier name than Michael, and anyway he looks like a Barnabas. Besides which, if I had to learn a new name to refer to everything well – that would just be untenable!
So every class, this student comes and sits in my lecture and I wave and say, “Hello Barnabas!” And when Barnabas pouts and says, “My name is Michael,” I say to it: “It is my sincere, reasoned, philosophical belief that you are not capable of determining your own name. I do not accept that your name is Michael. To me you are, and will always be, Barnabas. I will continue to call you Barnabas, as is my preference, and I resent your attempts, and the attempts of neototalitarian organizations like the Ontario Human Rights Commission, to require me to call you anything other than what I wish to call you, including Barnabas Mambo-Jambo Diggereedoo!”
Wouldn’t I be just such an asshole?
This is, of course, exactly what resisting the requirements of §7.4 entails. Jordan Peterson does not have the moral authority to decide which name or pronoun to refer to trans people, just as he does not have the moral authority to decide which name or pronoun to refer to black people, no matter how sincere or deeply felt his philosophical view of the matter.
§7.4, like the rest of the OHRC is a civil law intended to govern the daily interactions between individuals. It does not criminalize thought; Peterson is perfectly free to express whatever opinion about trans people he may wish (provided they do not meet the standards of hate speech described below), but in his day-to-day interactions with them, he is bound to behave, to use his word, in a “civilized” fashion.
You may claim that this is still an undue limitation on free speech. You may claim that not being able to refer to a black person as “it” is some fundamental encroachment from the “censorious left.” You may argue that society, “Marxist” or otherwise, suffers when we are not able to demean, dehumanize, and humiliate others whenever we feel the need. Yes, if you’d like, you may argue this – best of luck with it.
Now that we’ve shown Peterson’s reading of the Ontario Human Rights Code to be so much sophistic, intellectually fraudulent garbage, we can move on to more productive efforts. Namely, assessing the likelihood of pronoun misuse being criminalized under the only other piece of legislation relevant to the matter: §319(2) of the Criminal Code.
Had you been interested in discussing the merits or demerits of the legislation actually under discussion – instead of simply regurgitating right-wing faux-libertarian platitudes – you would have done the reading necessary to understand how §319(2) is applied in the real world (as opposed to Peterson’s imaginary one). It is this labour to which we turn our efforts now.
Under the proposed legislation, the misuse of pronouns would be considered criminal hate speech if and only if it constitutes a wilful promotion of hatred. Again, you and Mr. Peterson have chosen to rely purely on prima facie readings of the literal text. As we have seen, this is not how law functions, and it is facile and ridiculous – to say nothing in of intellectually dishonest – to pretend otherwise.
Clarification can be found in R. v. Keegstra (1990):
Here we see that by “wilful,” the courts mean to say that it must be shown that the accused possessed mens rea, the standard determinant for the criminal act. In other words, it is up to the Crown to show that misusing pronouns is a tactic intended to increase “the most severe and deeply felt” hatred of transpeople and gender nonconformists. It needs to be proven that pronouns were misused out of active hatred, and not just conceptual or philosophical differences. This, again, as in any criminal case, is a very high burden of proof indeed. We find an even clearer definition of “hatred” in a recent civil case, Saskatchewan (Human Rights Commission) v. Whatcott (2013):
Are the gender nonconformist “vilified” by the misuse of pronouns? Are they made to appear evil, villainous, vile? Can you adduce anything that would make such an interpretation tenable?
When I mentioned my opposition to your defense of Peterson on Twitter (I decline to call it a “disagreement” – disagreement implies conflicting interpretations of the facts; since Peterson’s view is not supported by any facts, the gulf between us here is better characterized as a difference in degrees of ignorance), you directed me to a Facebook conversation between yourself and NOW writer Jonathan Goldsbie. Goldsbie endeavored to correct you on many of the same points as I do here (though, there are places Goldsbie and I strongly disagree , mostly in terms of his reading of §319(2)). Your response to Goldsbie is startling.
First, answering the charge that your column refers not one jot to the actual text and praxis of the Bill itself, you claim that “[i]f the Sun‘s word limit had been 1000 and not 575, [I] would’ve be quacking all over the Bill.” To say that you couldn’t discuss what the Bill actually said and meant, in an article about the Bill, because of word limits is, frankly, total bullshit and well beneath your dignity to offer as a defense.
Then, when pushed to offer evidence of your point of view (i.e., cases which demonstrate that the hate speech laws in question unduly curtail freedom of expression), you offer two. Interestingly, neither of them have anything whatsoever to do with gender identity or expression, a point that seems not to bother you. Nevertheless, let’s assess them on their own merits.
In the first, we find National Socialist Party of Canada-founder Terry Tremaine being sent to jail for violating a court order instructing him to remove certain online messages he’d posted in which he’d said the kinds of things about Jews we’d expect such a man to say. Had you done a basic amount of research on the matter, instead of just posting the first thing that showed up on your Google search, you’d find that the relevant section of the Human Rights Act under which he was charged – Section 13 – was stricken from the Act in 2013; Terry Tremaine is now free to publish anti-Semitic messages to his (very tiny) heart’s desire. His case, therefore, is not evidence of anything other than your inability to locate better evidence.
The second instance you cite is summed up (by you) in two words :”Mark Steyn?” Nobody (including you, I suspect) knows what you’re alluding to, here. I can only assume you’re referring to the 2007 suit brought against him by the Canadian Islamic Congress, a suit that was wholly dismissed by the Canadian Human Rights Commission in 2008. I don’t care to speculate on how you’ve managed to not know that.
Having enumerated these two pieces of non-evidence, mostly without comment, you then effect some rather unlettered sophistry:
I guess out of the “lots of” examples which you could employ in your service, you decided to go with the two that fail to support your argument in any way. I’m not sure what I should make of that. True, it might be difficult to “prove conclusively that uv been denied housing bc ur non-binary”, though this just as true of any other identifiable group. Do you believe that landlords should have the right to deny black people housing on racial grounds? If so, you have very seriously misread the Adolph Reed article you yourself cited. I don’t know what the “vast majority of cases” are that you deem “injudicable,” since you don’t cite a single one.
Given that Jordan Peterson’s factual claims are totally false, his assumptions and speculations unreasonable and verging on the deranged, and his conclusions baseless and empty – why, again, did you feel it was necessary to defend him? You claim to be offering a “Marxist” defense, or at least to defend him “from the left”. Let’s take a closer look at what you think this means.
The first half of your column you spend repeating Peterson’s false claims and amplifying his hysterical, propagandistic conspiracy theories. There’s nothing at all leftist about it, and certainly nothing “Marxist” – they’re standard and decades-old right-wing talking points .
You attempt, falteringly, to reduce efforts to protect the civil liberties of marginalized groups to mere “liberal ‘diversity’ politics,” apparently ignoring what Adolph Reed actually wrote on the matter (really, you should go back and read that article, this time not just paying attention to the parts that vindicate your own feelings of perceived injustice).
You write things like “…you can be fined or thrown in jail for offering any criticism of [what you call “liberal ideals” but what are really just basic civil liberty protections, emphasis mine]…” which is unambiguously, factually false. Then, in a final struggle to work in some language that reads anything at all like it could rest apposite Karl Marx, you write:
But it’s no accident that many of his “oppressed critics, whatever their race or gender, are kids of the Canadian elite. If Peterson wanted to resist from the left instead of the libertarian right, he could argue – and he’d be damn correct – that he’s taking a stand against an arrogant, repressive ruling class.
First of all, it’s by no means clear that “many” of Peterson’s critics are “kids of the Canadian elite” (names, please?), but even if they were, why should that matter? Is that not just the essence of the ad hominem fallacy – to discredit the opinion of another not because of the substance of that opinion but because of some inalienable part of who they are?
Besides, even if many of Peterson’s critics are “elites” – so are many of his supporters, including you. I would hope it wouldn’t be too much for a political science major to understand that a property shared by two distinct objects cannot be of use in distinguishing between them. I guess it’s only elites other than you whom we should ignore. That you fail to get even a fallacious argument to work out in your favor speaks, I think, to just how crude and reductive your analysis of these matters is.
I am sympathetic to much of what thinkers like Adolph Reed and Rania Khalek have expressed w/r/t “identity politics.” I think you have very seriously misread them. How you have managed to convince yourself that transpeople represent the “ruling class” and that the “bloody-toothed Leviathan of government” is somehow working to their benefit at the expense of Jordan Peterson’s right to be a colossal douchebag is well beyond my powers of intellection. The one in every three transpeople each year who commit suicide (more than twice the national rate) must not have been kept abreast of how cushy they had it as the new Canadian elites; the 20% who were physically or sexually abused last year for being trans and the 24% who were harassed by the police must not have been doing it right. The two-thirds of all transpeople in Ontario who avoid public spaces for fear of exactly people like Jordan Peterson must just not be, I don’t know, bougie enough.
The truth is, if you were interested in protecting free expression, you wouldn’t be expending energy defending charlatans and ideologues like Jordan Peterson. You wouldn’t be writing columns lambasting innocuous human rights legislation designed to protect the marginalized. You wouldn’t be contorting into intellectual pretzels in an effort to convince yourself that by speaking out against laws designed to protect transpeople, you were speaking out against neoliberal power centres. You wouldn’t be writing about Bill C-16
You’d be writing about Bill C-51, supported by the federal Liberals, which criminalizes “advocating or promoting terrorism,” and increases the state’s already sweeping surveillance powers. You’d be writing about the Trans-Pacific Partnership, which will severely limit, among other things, internet freedom and expression.
Granted, writing about those things – effected by the ultra-wealthy and powerful – would be less likely to earn you a paycheck from right-wing publications like the Toronto Sun. I wonder what Marx would say about that.