Does the bill legislate the use of certain language? And could someone go to jail for using the wrong pronoun?
In the Criminal Code, which does not reference pronouns, Cossman says misusing pronouns alone would not constitute a criminal act.
“The misuse of gender pronouns, without more,
cannot rise to the level of a crime,” she says. “It cannot rise to the level of advocating genocide, inciting hatred, hate speech or hate crimes … (it) simply cannot meet the threshold.”
The Canadian Human Rights Act does not mention pronouns either. The act protects certain groups from discrimination.
“Would it cover the accidental misuse of a pronoun? I would say it’s very unlikely,” Cossman says. “Would it cover a situation where an individual repeatedly, consistently refuses to use a person’s chosen pronoun? It might.”
If someone refused to use a preferred pronoun — and it was determined to constitute discrimination or harassment — could that potentially result in jail time?
It is possible, Brown says, through a process that would
start with a complaint and progress to a proceeding before a human rights tribunal. If the tribunal rules that harassment or discrimination took place, there would typically be an order for monetary and non-monetary remedies. A non-monetary remedy may include sensitivity training, issuing an apology, or even a publication ban, he says.
If the person refused to comply with the tribunal's order, this would result in a contempt proceeding being sent to the Divisional or Federal Court, Brown says. The court could then potentially send a person to jail “until they purge the contempt,” he says.
“It could happen,” Brown says. “Is it likely to happen? I don’t think so. But, my opinion on whether or not that's likely has a lot to do with the particular case that you're looking at.”
“The path to prison is not straightforward. It’s not easy. But, it’s there. It’s been used before in breach of tribunal orders.”
