In 2016, academic Jordan Peterson rose to prominence by opposing Canada’s C-16 Bill:a Bill he erroneously claimed would compel speech from citizens by forcing them to address transgender students by their preferred pronouns. Of great angst to Peterson was a piece of advice from Toronto University that, should he fail to address transgender students by their preferred pronoun, he would potentially face an anti-discrimination claim from the Ontario Human Rights Commission (HRC). His public opposition to the laws turned Peterson into a darling of conservatives and advocates of unfettered free speech, and launched Peterson into super stardom. But to what extent are Peterson’s claims correct? Is free speech really under threat by left-wing governments across the world?
Firstly, it’s important to understand Peterson’s position. He argued on CBC news that “I am opposed to legislation which determines what words myself and others are required to utter…because I do not believe that other people have the right to determine what language I use…when the words being used are artificial constructions of people I regard as radical ideologues whose viewpoint I do not share”.
By asking citizens in public spaces not to deliberately misgender, Peterson claims that the State is compelling citizens to say something they may not wish to say – that they may fundamentally disagree with. This, he claims, is an unacceptable intervention by the State.
To best analyse his claims, we have to understand how these laws are truly being operationalised. Peterson makes it sounds as though he could be arrested for accidently addressing a Trans* person incorrectly. This is not so. Rather, this speech is being regulated under the ambit of anti-discrimination law. Human Rights Commissions consider a broad factual matrix when asking whether a person with a ‘protected characteristic’ has been discriminated against in the public sphere (‘gender identity’ is a protected characteristic in most jurisdictions). Deliberately, rather than accidentally, misgendering someone would very likely be seen to be discriminating against someone based on their gender identity.
Why is this discrimination? Well, to deliberately misgender someone is to know that such speech would cause them harm, and to do it anyway. It is capricious in its very nature. It is derogatory, because it targets an individual and denies them their fundamental right to equality by suggesting that their identity does not exist, and positively imposes on them another identity. It mocks them, by calling them something they are not (such as a ‘man in a wig’ rather than a woman). This is discrimination, because those whose gender identity aligns with the gender they were assigned at birth are referred to as such, while transgender persons are not afforded this right. It is discrimination because transgender persons who are misgendered deliberately in the public sphere are ostracised from their capacity to engage in public life by making that space hostile to them. Consider an example: if an African-American man was to continually be referred to as ‘boy’ or ‘n**ger’ while attending lectures, few would disagree it constitutes a discriminatory act. The reason for this is that the space would become hostile to them, limiting their ability to safely access the public forum. Deliberately misgendering people creates the same hostility. Anti-discrimination bodies such as Human Rights Commissions have every obligation to investigate such behaviour.
But even assuming a law that compels people to address Trans* persons by their proper pronoun, Peterson’s arguments are misguided. It is important here to recognise the similarities between this speech and other forms of protected speech, such as hate speech. Firstly, free speech is not absolute. Rather, it is instrumental––a factor in the utilitarian calculus. That is, there are laws limiting speech rights to protect from incitement to violence, defamation claims, or holocaust denial. States have to balance the value of the speech and its harmful impacts (particularly against vulnerable groups for whom public narratives can ostracise, demean, and exclude). Peterson himself accepts this. He made the following comments on free speech in an address to the Oxford Union:
I think the best thing to do is to leave free speech alone as much as you possibly can. Not because that will result in the perfect conditions for free speech, but because anything else that you’re likely to do is going to make it worse, rather than better…my sense is that you let those who wish to utter hateful things do so, and let everyone hear them. That’s the best way to ensure that what they’re saying will be understood and rejected. Now in order to posit that, you have to assume that the population, composed of sovereign individuals, is wiser than it is foolish. That’s a hope. You might think of it as an axiom of faith, but I do believe it to be the case…I think that if you put the evidence in front of people, by and large, they will do the right thing. I think that the problem with regulating hate speech is very simple. Who defines “hate?” The answer to that is, “over any reasonable period of time, exactly the people you would least want to have define hate….I know what the consequences of the arbitrary regulation of hate speech are: things get a lot worse, because “hate” is very difficult to define. That’s actually a real problem, when you’re trying to regulate it, because you have to be able to define it.
Jordan Peterson
In effect, Peterson argues that free speech is instrumental by arguing that the consequences of banning speech is worse than the consequences of allowing hateful speech. He does not see the right to free speech as an end to be protected at all costs, but makes a utilitarian trade-off regarding its benefits and harms . The first problem with his claims, however, is that they are a very basic ‘slippery slope’ argument – generally considered a logical fallacy. “Where will this stop?!’ is a common refrain by people unable to accept that on any given subject matter, rights rub against each other. One’s right to free speech is weighed against the harm that speech causes, and the value of that speech. This ought to be considered on a case by case basis, as is the case with all laws. It is lazy argumentation to say ‘this law may be ok, but others laws may not be, so let’s play it safe’. (See, for example, people who did not want to legalise gay marriage for fear it will lead to people in incest relationships wishing to be married. This is logic is erroneous[Office1] – governments are capable of weighing the value of given acts based on a factual matrixes of those acts).
This leads to the more interesting claim Peterson makes. He claims, essentially, that government can’tbe entrusted to make the above determinations, and so should therefore not involve itself. But consider how he justifies free speech being made in the alternative: he believes that the community is capable of assessing free speech and coming to the ‘truth’ of the matter. Firstly, there is much research to suggest that people are in fact poor regulators of speech, especially in a social media world where people are less open to being persuaded, and more inclined to find facts to fit their current beliefs. Secondly, it is unclear why, if society has this debate, and determines in its collective wisdom that certain speech is harmful, it cannot decide that such speech should not be regulated in the future. Most importantly though, if Peterson is convinced people are ‘more wise than they are foolish’, it is unclear why he trusts the population to regulate speech, but not to regulate a government making laws about speech. Surely if people are wise as a community, we will ensure our governments are not overstepping its bounds and unduly limiting our own speech rights.
Moreover, there are a number of considerations that Peterson chooses not to consider when he considers free speech against Trans* rights. Laws dissuade people from committing speech acts which cause harm in the immediate term – to the student who no longer feels they can go to lectures, or participate in civic discourse. They serve a narrative function, by outlining social expectations, and ensures vulnerable groups are protected. Peterson’s response to this is to say that everything is going to offend someone, so what is in, and what is out? The answer to this, to quote Peterson, is that: “the devil is in the details”. Free speech laws have high bars, and usually outline what speech can and cannot be uttered; for example, defamation laws hold that one cannot lie about another to their detriment. In the alternative the laws outline questions of intent, such as in hate speech laws. This test is assessed by courts in the same way that this test is adjudicated in every other case, for example in criminal law cases. More importantly, most public speech is regulated in anti-discrimination commissions, which take into account all facts and contexts of particular speech before rendering judgement. Like all laws, we trust our institutions to be fair and reasonable in making determinations. It works for assessing laws on restrictions to our physical liberty, why not our speech?
What then of Peterson’s claim of coercion? Even if certain speech is undesirable, he claims, surely the State cannot compel such speech? The most straightforward response is to say that people could simply use gender neutral language when addressing such students. This is important in understanding exactly what it is the law is seeking to regulate. The act being regulated isn’t a failure to produce speech, but rather repercussions forthe words being uttered. In other words, a person isn’t punished for failing to use a pronoun, but rather for the positive act of using an incorrect one purposefully. This is precisely the same as hate speech laws or defamation laws, which consider the context in which the speech was made, the motivations and impacts of that speech, and its intention, to draw a conclusion as to whether the speech uttered was harmful and against legislation.
However, let us assume that there is some unavoidable situation in which a person is trapped into having to use a pronoun, and must then choose to either use the preferred pronoun of the person or the pronoun which the speaker believes best applies. This may be considered compelled speech, in that it is uniquely a binary option of choices. By not uttering the regulated speech, one is compelled to use the only other alternative: the preferred pronoun. The question here is: what is so immoral about the state compelling speech? Firstly, it is untrue to say that States do not, and cannot, compel speech. States compel speech currently in a number of scenarios, for example by subpoenaing testimony, or calling witnesses to the stand in trials and compelling them to speak the truth by threat of perjury. Secondly, it is unclear what is so unique about speech that differentiates it from the myriad of other ways States compel actions, for example by charging taxes, participating in jury duty, or drug and alcohol testing. There are times in which the inaction of people otherwise cause large social harm, especially to minority groups. Compelling certain actions to prohibit negative actions is a moral consideration of the State.
Peterson’s last refrain is a common one: the right to have his views. In other words, even if the speech is wrong, or offensive, or horrible, if it is genuinely believed, people have a right to say it. This is not an instrumental or utilitarian claim, such as the one he made at the Oxford Union, and we have already discussed why freedom of speech, while an important right, is not absolute. But further, there comes a point in which, as a society, it must be accepted that some political views are unacceptable, and when uttered in the public sphere, cause harm. To take the example of the African-American person being referred to with vulgar slurs. Few would defend such actions by saying ‘well, we don’t like it, but that is the Professor’s genuinely held belief’. This is because over time a consensus forms that certain views are – by their very nature – discriminatory and are to be rejected by broader society. It is broadly accepted that Trans* persons are similarly vulnerable actors prone to similar discrimination, and that such views have no place in the public sphere.
But what if they aren’t? Now it is true that this is a grey line, and the onus should be heavily on proving that this speech has little other value than its discriminatory nature. But take the question of pronoun laws. Peterson claims, essentially, that he does not politically agree with the Trans* movement and gender identity laws, and as such he shouldn’t be compelled to speech which enforces it. Well, if he has concerns about the Trans* movement, and can (and does) contribute to that debate in other ways which does not involve harming the person to which he is speaking, then there is little political discourse being furthered by refusing to address someone as they request to be addressed. In other words, there is great harm to be had in the speech, but very little public benefit. Speech, in and of itself, can be oppressive. This is especially true when bound up in social power structures which perpetuate and co-construct harmful narratives about marginalised groups. States have an obligation to regulate social actions to construct social goods. The most fundamental good is ensuring that vulnerable and minority groups are capable of engaging safely in public life. When the Trans* community find their members deliberately misgendered, they are discriminated against and the public space is made hostile to them. Peterson may want to have a philosophical debate about conceptualising rights and the role of the government. But for the Trans* community, the harms are real. States, and anti-discrimination commissions, are right to intervene.
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