Freedom of Expression and Shifting Identities

On April 15th, the BC Supreme Court issued a judgement in a case involving a transgender child and the child’s father. I’ll start with the judgement, then fill in some background of the case, and lastly discuss the larger social and political context.

First, the judgement, which may be considered a landmark, for good or ill. The names of the parties have been anonymized, and the child is referred to as “AB”, and the father “CD”. This is the key part of the judgement I’ll discuss in the blog post:

It is declared under the Family Law Act that: […] attempting to persuade AB to abandon treatment for gender dysphoria; addressing AB by his birth name; referring to AB as a girl or with female pronouns whether to him directly or to third parties; shall be considered to be family violence under s. 38 of the Family Law Act. [emphasis mine]

There are other parts of the judgement that are important, such as AB being allowed to consent to medical treatment (hormone therapy), and legally change his/her name without parental consent, even though AB is only 14 years old.

The essence of the case is that AB, who was born female but had started identifying as a boy a couple years earlier, asked the court to prevent his/her father from publishing, speaking or giving interviews about this case. In opposition to AB’s mother and medical professionals, the father disagreed that hormone therapy was in the best interests of AB, and had been telling the story of this struggle to certain media outlets. The judge agreed that having this story in the news exposed AB to potential harm, and issued a public ban, in addition to the judgment quoted above. The father opposed this judgement on grounds that it violates his freedom of expression, and will appeal the decision. The court also issued a protection order stating that the father can be arrested if he violates the terms of the judgement.

The judgement rests on the idea that individuals have a right to their identity, and if others refuse to recognize that identity, this can cause the individual genuine harm, hence the state can punish those who refuse to recognize the identity. If people always identified as what they are, in an objective sense, this idea would have some basis. So, if a child identifies as a human (because she is human), but her classmates continually referred to her as a chimpanzee, that could rightly be regarded as harmful.

Let’s imagine another scenario, this one of a 16 year old boy named John Smith. He’s 5 feet, 8 inches tall, and believes he’s “a tall guy,” even though he’s only of average height for his age. He’s even given himself the non-ironic nickname John “Tall-man” Smith, and insists that everyone refer to him as such. Though his measurable height isn’t in question, there terms “tall” and “short” are not strictly defined, and John believes he should be counted in the “tall” camp. John’s friends, parents, and neighbours, not wishing to harm his self-esteem, agree and begin referring to him as “Tall-man.” But the problem is that the other kids his age at school, particularly the boys, disagree and see him as average height. Instead of “Tall-man,” they start calling him John “50P” (for 50th percentile) Smith, much to John’s chagrin. One day, the situation comes to a head with a shouting match in the hallway between John and another boy. The Principal then sits the two boys down in his office and the following conversation ensues:

Principal: This name-calling has got to stop. You’re really hurting John’s feelings.

Boy: Really? All we did was call him 50P because he’s of average height, but insists we call him “Tall-man.” It’s ridiculous.

Principal: Well, it’s not nice to judge people on their height. And John has asked that we all call him “Tall-man,” and I think we should respect that.

Boy: Fine, I’ll stop calling him 50P. But there’s no way I’m calling him “Tall-man.”

Principal: For the sake of keeping the peace at this school, I must insist that you do. And if you will not, you’ll be suspended.

Boy: You’re nuts.

So, how do you think things will play out the next time this boy encounters John? I’d say the most likely scenario is that this boy will refer to John as “Tall-man”, but in a completely sarcastic tone that makes it clear to everyone that he doesn’t think John is tall.

The principal’s order is likely to be ineffective. Some students may go along with it to avoid punishment, others may not. But unless the cultural understanding of the categories “tall,” “short’ and “average” begins to shift, all the principal’s rule serves to do at best is make the students speak, but not think, differently.

When John graduates from high school and goes to university, he’ll be crushed when the students there see him as average height. The only way for such a policing of speech to work in the face of deep cultural resistance, is for the authorities to double down on enforcement, à la 1984. With enough coercive threats, the authorities may get the population to actually change their thinking.

Thankfully, on the topic of gender, we aren’t there yet, but the BC Supreme Court’s decision on the case of AB takes a decisive step in that direction. The judgement states that even if the father refers to AB using female pronouns while speaking privately to a third party, this would be considered “family violence.” Now, the legal definition of “family violence” under the act is broader than what the lay-person would consider to be violence, and includes the highly debatable definition: “unreasonable restrictions on […] a family member’s […] personal autonomy.” These legal subtleties are usually lost in the public discourse on such issues, and trans-rights advocates may be quick to say that those who don’t agree with their proposed reforms are also perpetrators of violence. So, just as a shared cultural understanding of what constitutes “male” and “female” has come into question, so has the meaning of what constitutes “violence.”

The problem is that the semantic subtleties will be lost on most members of the public, and the public debate then becomes about whether it’s ok or not to use state violence (imprisonment) to stop this kind of “family violence.” It’s a false choice based on a faulty understanding of the problem, and injects rocket fuel into an already heated debate about people changing genders, and how many genders there are. Instead of focusing exclusively on making arguments against a binary concept of gender, or in favour of acceptance of trans-genderism, their proponents will focus more energy on using the power the state to achieve their aims, if the state appears receptive. This judgement by the BC Supreme Court sends a clear message that it is receptive, and that compelled speech (e.g. requiring the father to use the gender pronouns his child prefers) is one of the remedies it is willing to apply, even though this may violate constitutionally protected freedoms of expression.

Historically, courts were not activist institutions looking to change society by mandate or decree. The English common-law tradition practiced in Canada was always been conservative in nature, seeking to spell out the principles of law on which the vast majority could agree. Today, courts are increasingly used to impose the will of the progressive minority on to the rest of society.

The trend is most clearly seen in Canada’s Human Rights Tribunals, which are not staffed by trained legal professionals and are often instead staffed by people who have made a career of fighting for progressive social justice causes. The modus operandi of these institutions is to accelerate cultural change, rather than to act as impartial arbiters, and it seems that courts of law are being enlisted in this effort.

This presents a serious problem as we move further into the 21st century. The reason why we’re having fierce debates about gender in 2019 (as opposed to 1969), is that the technology is now available to modify a person’s sex in profound in ways that were not available 50 years ago. We can’t yet change DNA (a woman who undergoes a sex change to become a man still can’t trade half her X chromosomes for Y’s), but the possibility is not too far off. And it’s coincidence that the interest by many young people in switching genders has occurred in the age of social media, where individuals have great latitude in how they craft their online identities.

Genetic manipulation and other new technologies will open up other avenues for individuals to become something they were not born as. The technology to change one’s appearance so as to look like a different race (by reconstructive facial surgery, hair replacement, and skin colour changes) already exists, and will continue to improve (if there’s a demand for it).

And this is just the tip of the iceberg. What happens when humans are able to incorporate animal DNA into their bodies, or use other means to add non-human features to their appearance? A guy with a rhino horn sticking out of his forehead who insists he’s a rhino may seem laughable to us today, but if you told people 50 years ago that in 2019, people would be undergoing mastectomies and reconstructive surgery on their genitals to change their sex, they would have been just as incredulous.

It doesn’t stop there. What if 50 years from now, people spend the vast majority of their time in virtual environments where there are no physical limitations on their appearance? If all the meaningful parts of one’s life are conducted via his virtual avatar, then it could be argued that one’s adopted virtual identity is as real, if not more real, than one’s biological identity.

It won’t be long until the courts and society at large will have to grapple with such complicated issues of identity. If the approach of progressive activists and their allies in the courts is going to be to use the coercive power the state to make individuals recognize the adopted identity of other individuals, we’re heading for a very strange and nasty world.

BC’s courts, as they exist today, don’t even have the capacity to handle the current volume of civil and criminal cases that are put before them. If the scope is expanded to acting as identity enforcers, I don’t see how they could cope. So possibly some new branch of government could be created to police how people interact with one another and ensure that everyone’s unique identities are respected. Such a scheme would either be unworkable, or highly repressive.

In order to streamline things, the government would surely create a list of approved identities, for which individuals would have to apply for a license. Soon we’d have a new monopolistic ICBC (Identity Certification of British Columbia) taking fees and handing out ID badges with pictures of dragons, Vulcans and giraffes on them.

Bureaucracies try to standardize things as much as possible, which is the exact opposite of what people are trying to achieve by adopting all sorts of different ideas, so the ICBC model isn’t going to work. The only realistic alternatives are voluntary ones, where people find ways of coming to terms with the identities of others without it coming to blows.

Over most of human history, cultural changes, including the appearance and acceptance of new identities, have happened quite slowly. During the past 100 years, western liberal societies have demonstrated that they are pretty good at adapting to cultural changes without coming apart at the seams, but the next 100 years will really put our tolerance to the test. We are going to face some serious challenges to what it means to be human, and who counts a person, entitled to the rights we believe all humans deserve.

Our rulers are not wise enough to figure this out on their own. It’s going to require many conversations between people at all levels of society if we’re to have a chance of achieving something close to a common cultural understanding. And those conversations will need to be frank but respectful if they’re to achieve anything. Using the heavy hand of government to limit what can be said or force those conversations in a certain direction will ultimately fail, but has the potential to do a lot of harm along the way.

Clayton Welwood is the  BC Libertarian candidate for North Vancouver-Seymour, and leads the Party’s  Outreach Committee. If you would like to help us preserve freedom of expression in BC, join the Party today for just $5 a year.