Freedom of expression and gender identity: Rights in conflict?

Male with painted nails wearing flip flops

In September 2016, a professor of psychology at the University of Toronto, Jordan B Peterson, caused a firestorm by stating in a series of youtube videos his opposition to a new bill being presented to the Senate for reading. Bill C-16 proposes to add gender identity and gender expression as protected identities under the federal Canadian Human Rights Act and Criminal Code.

Dr Peterson called the bill an assault on free speech and followed up his critique with a statement that he reserved the right to refuse to honour non binary students’ requests that he use non binary pronouns such as they, zie and hir, in his classes. He stated that mandating his use of these pronouns was a form of political authoritarianism. What he failed to concede was that in refusing to use students’ requested pronouns, he would in effect be robbing them of their right to define their own identities. Dr. Peterson has essentially argued that identities are negotiated, and that one cannot mandate someone’s identity into existence.

On that point Dr Peterson and I agree. Freedom of speech, freedom to debate and challenge each other, is critical to the healthy functioning of any society. If we can’t speak to those we disagree with, how can we hope to live with them? However, Dr Peterson isn’t asking for a debate on recognizing non binary identities. He has already decided they are not legitimate, at least not in his classroom. This is highly problematic for someone who claims to be against authoritarianism. Why should he have the right to define my identity, more so than I have the right to define my own identity?

Touting himself a a defendant of free speech, he participated in a debate in November wherein he argued that freedom of speech is not just another value, but a fundamental mechanism by which we “keep our psyches and our societies organized”. He argues, convincingly, that when an employer mandates anti-racism and anti-homophobia training to its employees, “you actually make people more prejudiced”.

But when on the one side you have a man who has been privileged by a social structure that values his voice because he is a white, college-educated male, and on the other, you have a transgender community who have faced inordinate levels of violence, and have been rejected from their families and communities based on prejudice, you don’t have a fair debate. It would be like asking a 17 year old amateur boxer from an underprivileged neighbourhood to step into the ring to face off with Muhammad Ali in his prime. It won’t be pretty. And it’s not a fair fight.

Not all transgender people are poor, uneducated or have been rejected by their families. And not all middle-aged professors have had an easy road to get to where they are. Of course not. But when a large number of transgender people have faced discrimination for who they are, have faced traumatic setbacks that have impacted their self-esteem and sense of self-worth, the decent thing for a society to do is to recognize this wrong and to do what it can to right it.

One of the hallmarks of trauma is that your rational brain, the cerebral cortex, goes offline. You go into reptilian brain mode: fight, flight, freeze. In cases of severe trauma, sometimes you lose the ability to speak at all. You shut down, experience intense emotions, debilitating flashbacks and uninvited disturbing thoughts. You live with a deep, unshakable, hopelessness that at times can feel so unbearable that suicide seems like a better alternative.

Like many transgender people, I have lived in that space. When you are there, you cannot debate. You are not in a position to articulate why you are triggered or offer up nuanced arguments in defence of your own position. Instead, you retreat into yourself, hold on for the ride as you enter the vortex of your own troubled mind. You lose yourself for a moment, but hopefully not before you reach out to those people, places, and experiences that you have learned to trust, that help anchor you in reality, that help pull you through so you can face another day.

While I value freedom of speech, I also recognize that hurtful speech must sometimes be limited, if only so that those who have been historically victimized can have a shot at putting aside their trauma for a moment and move toward reconciliation and healing. As a professor, Dr Peterson has an opportunity to create such a space in his classrooms. He may not respect his transgender students, or feel that he owes them anything, least of all the use of their requested pronouns. But are his feelings as someone in a position of authority really more important than the feelings of a transgender student who has been repeatedly marginalized and told that they have no value in our society? By refusing to address transgender students by the pronouns they request, he is in effect robbing them of their freedom of expression. He is silencing them.

You can state that they are weak for not being able or willing to stay in his class and debate him, but you would be ignoring the very real power he holds over them. He is a tenured professor with years of experience and training at public speaking and open debate. They are students still searching for their voice, and looking for a safe space to do so. Who is he to rob them of that?

We are each of us born into a gender; and for most of us the gender we are born into is the one we stick to for our entire lives. For a few of us, that doesn’t ring true. Yes we are a minority. But since when is being a minority reason enough for dismissal? The gender I was assigned to initially didn’t resonate with my internal sense of myself. Despite being assigned female, I saw women and I didn’t see myself in them. Who knows why. So I chose a path to align my gender expression with my internal sense of myself.

As a child I explored the world as what would today be called a tomboy. I climbed trees, played soccer, wrestled my He-Man doll with Mr. T. I played with My Little Pony and Barbie too. It took me a while to realize that I was expected to live my life within the box of woman, and that box came attached with certain expectations regarding my demeanour and behaviour.

As I got older, I learned that being woman entailed menstruating, developing breasts, and having the potential to get pregnant. It dawned on me that these things would likely happen to me, whether I wanted them or not. And I didn’t want them to happen.

It was hard to put my finger on what exactly made me feel out of place. There was no language for what I felt. I searched. For a time, I thought maybe I was a lesbian. But that, too, felt inaccurate, in no small part because as I entered puberty I began to realize that I was attracted to men as well as women. In fact, I didn’t think of my partners in gendered terms. I didn’t think of myself in those terms either.

I decided that I didn’t want to be a woman. That left me only one option at the time. If I didn’t want to be a woman, I would have to live my life as a man. So I started the process of transitioning. I began hormone therapy and later had surgeries to help me better deal with the discomfort I felt with my body. I left behind womanhood and the associations that went with it. I transitioned not because I felt myself to be a man, but because I didn’t want to be a woman. I transitioned to become myself.

Identities are messy things. They tend to press against the walls that try to contain them. After much self-advocacy, my legal paperwork now lists me as male. I worked hard for that designation. I am a man. Transgender is the adjective, the shade that defines my gender; the thing that makes me cyan rather than simply blue. And my sense of my own gender is still developing. These days I’d probably call myself a bigender man. Because that allows me to honour my early years as a girl, to integrate it into who I am today. Dr Peterson may not understand my need to do this. Nor does he need to understand it to accept it.

Apparently it matters a great deal to some people, what I have in my pants, or what my chromosomal makeup is. I’m not sure why. Perhaps because my ability to exist in the world as a man without the anatomy or chromosomes of a typical male disrupts a common understanding of what gender is: That gender, somehow, is intrinsically, inseparably linked to sex characteristics.

I think many people misunderstand that if gender is a social construct, then it is somehow not real. Money is a social construct – and I think most of us would agree that it is very real; our lives depend on it.

To conceive of gender as a social construct only loosely based on crude biological differences would mean that gender can be socially deconstructed, and reassembled in different ways. It would mean disrupting two fundamental building blocks of our society: our concept of man and woman. If we disrupt something so basic as that, what are the larger consequences? If gender isn’t inextricably tied to our procreative roles, then what is gender?

Money, too, has shifted its meaning over time. Originally defined as an identifiable object of value used as payment for goods and services, it has become more and more abstract. It used to refer to a coin, or piece of paper. These days we carry plastic credit cards which, presumably, stand in for the money we have in the bank; money, that does or does not actually exist in tangible form, as most banks don’t carry everyone’s money in cold hard cash but invest it.

Gender roles and the expectations that go with them may have originally been based on whether humans were born with penises or vaginas. But just as the meaning of money has shifted over time, from coin, to bank notes, to abstract numbers on a computer screen or cryptocurrencies like Bitcoin, gender too has taken on different forms. New currencies of gender are constantly being developed. Some will stick, and some will surely fall by the wayside as we aspire to have our gender realities socially validated. But these alternative gender currencies are no less real than the two we are most familiar with – man and woman. What they are is less common. All we, as a minority, are asking for is for a seat at the table.

Which brings us to the question: am I real if I identify as neither man nor woman, or as both, or as another category entirely? And is the fact that I am a social anomaly invalidate my existence, or reduce my value to society? I would argue that my being a minority does not mean that I am less valuable than anyone else. Or any less entitled to having my identity recognized by the likes of Dr Peterson.

I can be a contributing member of society, regardless of what’s in my pants, if I am seen as a human resource, not a human liability. I am as real as the Bitcoin or Linden Dollar (which is used in the virtual world Second Life). That is to say, I am a gender currency that is not yet fully recognized or used by mainstream society. And yet, I have value; I have value that can be converted into cold hard cash, if you know how to recognize me, and if that is your goal.

But society has a responsibility too; it has to want to value me. It has to choose to be open to my value. Dr Peterson argues that identities are a negotiation. That the universe depends on the balance between chaos and order, with the left representing chaos and the right, order. The assumption is that to recognize my identity would be to embrace chaos at the expense of order. I reject that notion. My defining my identity as non-binary does nothing to take away from Dr Peterson his right to define himself as a man. But his act of not recognizing my identity does rob me of my right to define myself.

Identity expression is a form of freedom of speech. To deny me the right to exist, is to silence me, is to impose a form of biological authoritarianism that runs counter to Dr. Peterson’s representation of himself as a champion of freedom. He states that identity is a “set of pragmatic tools” that carries you through life; that it is “not only your subjective whim”. His objection is to compelled speech, and yet he seems to have no objection to compelling people to fit into the gender categories he deems to be legitimate.

My gender may be atypical. It may not yet be fully understood in the scientific literature, or have a fully accepted name – or a commonly recognized role – in the world we live in. That is an ongoing negotiation. But my identity is as real to me as my monthly credit card bill or the iTunes gift card I got for Christmas. It’s all in how you use it.

If you’d like to show your support for the passage of Bill C-16, please go┬áto this page created by the Mark S. Bonham Centre for Sexual Diversity Studies at the University of Toronto and send a letter to the Senators currently reviewing the bill.