In 2016, University of Toronto psychology professor Jordan Peterson became embroiled in a controversy because he publicly proclaimed that he wouldn’t use his students’ preferred pronouns. The issue of preferred pronouns has become more important lately, especially for predominantly progressive university students, as it’s considered a part of improving lives for gender non-conforming people.

At this point, the story is old and familiar. Jordan Peterson ended up framing his initial anti-preferred pronoun stance as a principled opposition to Bill C-16, a bill that added (among other things) “gender identity or expression” as a prohibited ground of discrimination in the federal Canadian Human Rights Act.

Jordan Peterson’s view of the effect of the amendments implemented by Bill C-16 was that it would force people to use others’ preferred pronouns on the threat of otherwise being sued with a human rights claim. He based this on the Ontario Human Rights Code website, which said that a failure to use a person’s preferred pronoun could amount to discrimination. To Peterson, this amounted to compelled speech and was contrary to the fundamental democratic principle of freedom of expression.

Peterson also bolstered his view on the basis that he believes human rights tribunals are almost assuredly composed of people with “post-modern neo-Marxist” ideology (in his words) because he believes this ideology has spread to all levels of government in Canada. When Peterson uses the term “post-modern neo-Marxist” he seems to be referring to an ideology that promotes political correctness by consistently favouring non-white, non-male identity groups. Put another way, he’s apparently referring to people who might pejoratively be called “social justice warriors”.

In reality, Bill C-16 only made modest changes to the human rights landscape in Canada. Most Canadians were already living under provincial human rights legislation that includes “gender identity or expression” as a prohibited ground of discrimination. Bill C-16 came into force in June 2017, and the floodgates of preferred pronoun litigation never opened. To date, Peterson’s concerns over compelled speech appear to have been hugely overblown.

Renewed Worries of Human Rights Overreach

Eventually, traditionalists’ agitation over the amendments brought about by Bill C-16 began to fade away. However, new concerns emerged that the British Columbia Human Rights Tribunal would rule in favour of a trans woman, Jessica Yaniv, who made human rights claims against various waxing salons that refused to shave her scrotum, arms, and legs. Before her claims were decided there already existed ample publicly available evidence suggesting she was making the claims vexatiously.

National Post columnist Barbara Kay typified traditionalists’ grave concerns that the tribunal could rule in Ms. Yaniv’s favour. The following paragraphs in one of Barbara Kay’s articles soberly warn that Canada might sleepwalk into a politically correct dystopia:

The trouble with democracy—one trouble anyway—is our complacency. We are too trusting. We think our liberties are well protected in law. We have no sense of how easily and perniciously laws can be amended when ideologues infiltrate the law schools and populate the benches, the bar associations and the law societies. The whole idea of human rights is being transmogrified before our eyes, and we sit there watching, superannuated classical-liberal deer in the progressive headlights.

…The following words have—in format—become a cliché, but only because the insight the original words represent is so often the most fitting commentary on a democracy’s demise, which always begins with the sacrifice of individual freedoms on the altar of irrational dogmas: “First they came for the waxologists, but I did not speak up because I was not a waxologist …”

Much like Jordan Peterson, Barbara Kay appears convinced that law graduates are mostly blinkered ideologues.

The Decision

The BC Human Rights Tribunal delivered its decision in the Yaniv v. Various Waxing Salons case in November 2019. Within the second paragraph of the decision, the tribunal member mentions that Ms. Yaniv has a “pattern of filing human rights complaints which targets small businesses for personal financial gain…”. All of Yaniv’s complaints were dismissed, and she was ordered to pay $2,000 in costs to each respondent.

The tribunal member explained the legal framework for making a successful human rights claim regarding a denial of service. First, the applicant has to establish that they were denied a service customarily provided to the public. Then, they need to establish that this denial occurred on a prohibited ground of discrimination. If the applicant crosses this hurdle, then the burden shifts to the respondent to establish that the denial was in good faith and justified.

With regard to being denied a Brazilian wax, the tribunal member found that Ms. Yaniv was not denied a service customarily provided to the public because a Brazilian wax doesn’t include shaving a scrotum. Yaniv’s human rights claims on this issue failed at the first step of the analysis. The tribunal member was also live to the fact that a genital waxing service is intimate in nature. He summarized the point neatly in the following sentence: “I do not accept that a person’s decision to touch a stranger’s vulva then requires them to also touch a stranger’s penis and scrotum.”

The tribunal member also dealt with Ms. Yaniv’s claims against two waxing salons that refused to wax her arms and legs. In this situation, the tribunal member found that the refusal to wax Ms. Yaniv’s arms and legs was a denial of a service customarily provided to the public. This denial of service would also have been on a prohibited ground of discrimination, namely, gender identity and expression. In a typical case, the tribunal member would have moved to the second step of the analysis, which asks whether the respondent has discharged their burden of showing that they discriminated in good faith and were justified.

However, the tribunal member didn’t move to the second step of the analysis because he was persuaded that Ms. Yaniv wasn’t making the human rights claims in good faith. In particular, he found that Ms. Yaniv was primarily motivated by personal financial gain and racism. There was ample evidence on the record to establish this, including Ms. Yaniv’s deceptive behaviour, her pattern of vexatious human rights complaints, and her various anti-immigrant statements.

Conclusion

The expression “the law is an ass” is overused. The law can certainly be an ass, but for the most part there are good reasons why existing legal frameworks are the way they are. Usually, these frameworks provide judges and tribunals the flexibility to make reasonable decisions. In addition, judges and tribunal members are overwhelmingly reasonable people. If a judicial decision seems surprising, it’s usually because members of the public lack crucial information to understand how it was made, not because a judge has made an irrational decision.

There is a perception among traditionalists like Jordan Peterson and Barbara Kay that human rights tribunals are filled with dupes who can easily be persuaded into making decisions that appear politically progressive, but are actually terrible for society. In reality, these tribunals mostly help protect Canadians against unjustified discrimination. They don’t exist to compel the speech of ordinary Canadians or to force waxing salons to performs services that are contrary to their employees’ religious views and personal boundaries.

At the time of writing, Ms. Yaniv has initiated yet another human rights complaint against a beauty salon that refused her a waxing service. There is every reason to believe this complaint will fail, just like the other ones did.

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