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.”

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 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.”

Terrence Heinrichs, Ph.D., M.A. (University of Toronto), B.A. (California-Berkeley). Heinrichs taught at Glendon College, York University in Toronto, Ontario, Canada, from which he recently retired as Professor Emeritus. His early publications include essays in the history of political theory, but most recently, his interests have turned to civil liberties, specifically and mainly to issues concerning freedom of expression. His publications in this area include his latest book, On Resurrecting Beauharnais: Jeremy Waldron & Group Libel, along with various law review and online articles as well. His early life was dominated by his interests in sports, specifically in basketball and baseball, which he played at the University of California.

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