A bill introduced last month in the Legislative Assembly of Ontario, Canada, would allow the attorney general to bring charges carrying fines of up to $25,000 against those who say the wrong thing within 100 meters of a location the attorney general has designated as a “2SLGBTQI+ community safety zone.”
Bill 94, titled the “2SLGBTQI+ Community Safety Zones Act,” requires the attorney general to make three decisions: whether to designate a particular location as a safety zone, whether to charge someone with uttering the wrong words within 100 meters of that safety zone, and, if so, whether to seek a fine of up to $25,000. All three decisions would be completely up to the attorney general’s unfettered, and unreviewable, discretion.
The bill does not define what “2SLGBTQI+” means or includes, but it’s apparently not a completely new term. The website of one Canadian organization providing mental health services defines a similar combination as including “two-spirit,” lesbian, gay, bisexual, transgender, queer, questioning, intersex, and asexual. This website says that the “plus” includes such things as pansexual, pangender, gender queer, bigender, gender variant, and agender — which, in turn, “includes a very broad range of identities which do not conform to traditional gender norms.”
As if that weren’t enough, “this acronym and the various terms are always evolving” anyway. There’s no way to know whether this “plus” is the same as the “plus” in Bill 94 or, say, how pansexual differs from pangender, asexual from agender. Maybe the attorney general knows.
Similarly, the YMCA in Canada (which has chosen to retain the “M” in its name) defines “2SLGBTQIA+” as “an acronym that stands for Two-Spirit, Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, Intersex, Asexual, and additional sexual orientations and gender identities.” The Middlebury Institute of International Studies defines “2SLGBTQIA+” the same way and explains that the “plus” “reflects the countless affirmative ways in which people choose to self-identify.”
What we do know (I think) is that, as the YMCA in Canada put it, these are all presented as so-called “gender identities.” The World Health Organization defines gender identity as “a person’s deeply felt, internal and individual experience of gender.” The Human Rights Campaign defines “gender identity” as “[o]ne’s innermost concept of self … how individuals perceive themselves and what they call themselves.” National Public Radio defines it as “one’s own internal sense of self and their gender” and makes the point that “gender identity is not outwardly visible to others.”
So the class protected by this legislation is made up of persons whose “internal sense of self” fits somewhere, at least at a given point in time, in this open-ended and ever-changing collection of categories.
How on earth is the attorney general supposed to know whether the requisite number of persons whose “internal sense of self” is (or once was) associated with one (or more) of these undefined (and evolving) categories is gathering (or has gathered) at (or has been seen at) a particular location? The bill does not say.
Beyond these unknowns, there’s an even more basic problem. The bill requires the attorney general, in making a safety zone designation, to attach labels to persons. But gender identity is, by its own convoluted definition, derived from self-perception and individual experience; it cannot be imposed upon a person by someone else. So shouldn’t gender activists be denouncing this legislation?
Suppose the attorney general gets past all of these hurdles and designates a particular location as a safety zone. The bill requires the attorney general to make “available to the public” the “name and address of the … safety zone; and the date and time during which the … safety zone is designated as such.” Is a quiet posting somewhere on the attorney general’s website sufficient? Can the designation be “forever”?
Questions like these may seem trite, but their implications are serious. Once the attorney general designates a community safety zone, anyone faces a fine of up to $25,000 for each of what the bill calls an “act of intimidation.” That sounds bad, doesn’t it?
Turns out an “act of intimidation” doesn’t have to be an act at all. Acts of intimidation include “offensive remarks … with respect to matters of social orientation or gender roles.” The bill does not define either the odd term “social orientation” or what “with respect to” might mean. Nor does it offer anything to determine whether a remark of this sort is offensive. Since the bill says nothing about such remarks being directed at anyone in particular, the only conclusion is that the attorney general will simply declare, based on undisclosed criteria, that certain remarks are offensive in the abstract (or perhaps to the attorney general alone).
Acts of intimidation also include distributing “hate propaganda within the meaning of the Criminal Code.” The code, in turn, defines “hate propaganda” as including “statements, other than in private conversation, wilfully promot[ing] hatred against any identifiable group.” What constitutes “hatred”? Or, for that matter, how does the attorney general distinguish between statements that promote whatever it is incidentally or unintentionally, as opposed to willfully?
In addition, the bill says an act of intimidation could also describe “engaging in a protest or demonstration for the purpose of furthering the objectives of homophobia and transphobia.” The bill does not define a “protest or demonstration” or distinguish it from, say, a gathering. Who gets to say what amounts to “homophobia and transphobia” or what their “objectives” are? How might the attorney general determine whether furthering those objectives is the purpose, rather than merely the unintended consequence, of such a protest/demonstration/gathering/whatever?
Under this legislation, in other words, the attorney general has unlimited and unreviewable discretion to answer all of these questions — and many more besides — any particular way. Worse, he can threaten draconian fines on expressions deemed “acts of intimidation.” Never mind that the attorney general can use the threat of such fines to muzzle Canadians who, at least according to their Charter of Rights and Freedoms, have the fundamental freedoms of expression and association.
Suppose the attorney general designates a particular row house as a community safety zone. Unfortunately for them, the folks who live two doors down, well within 100 meters, do not regularly check the attorney general’s website for instructions on what they may say in private. They host a Bible study and, this week, the faithful are discussing what the Bible teaches about sexuality and family life. A neighbor, whose motives are unclear, sits in and then alerts the attorney general’s office about what transpired. The staff decide this amounts to promoting hatred against homosexuals, that its purpose is to further the objectives of homophobia, and that the discussion was full of offensive remarks about gender roles.
Nothing in Bill 94 would prevent this scenario, even if no one gathered in the safety zone had even an inkling that there was a den of intimidators just down the block or ever heard a single statement or remark (offensive or otherwise) from anyone there. Perhaps even worse, nothing in this legislation would prevent activists from targeting for suppression people they might suspect of harboring certain views, who might live or even walk within 100 meters of a safety zone.
The bill has a host of other, perhaps less ideological problems. It prohibits the protests or demonstrations described above while, at the same time, declaring that “nothing in this Act prevents peaceful protests or demonstrations.” What constitutes such protests? Your guess is as good as mine.
Canada is not alone in seeking to prohibit certain kinds of expression in designated zones. In the U.K., some cities have established “safe zones” around abortion facilities, criminalizing even silent prayer within the arbitrarily designated area.
Power corrupts, and absolute power corrupts absolutely. This legislation gives one official layer upon layer of unlimited, unchallenged, unchecked power to neutralize even the most basic freedoms that everyone is supposed to enjoy. This is where gender ideology is taking us.
Thomas L. Jipping, a senior legal fellow at The Heritage Foundation, is the deputy director of Heritage’s Edwin Meese III Center for Legal and Judicial Studies.
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