Jordan Peterson and the Freedom of Expression

[Peterson] can write papers, produce videos, speak to the media, serve on a panel forum, and deliver lectures to a captive audience. What he can’t do is use the dignity of his students as a platform.

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According to Peterson’s allies, he is defending an essential freedom in a place where that freedom should be most respected: the university. Peterson sees himself as a hero of free speech, bravely standing against a tidal wave of activism that seeks to suppress dissent by coercion; No longer is he able to freely discuss his views, but instead receives orders from an authoritarian administration concerning what opinions he is allowed to publicly express. He has decided to fight against this new development, in the name of freedom of speech and academic freedom. I hope I have given his view a fair reading.

Most public discussion on this issue has given short shrift to the actual legal situation. It all begins with a letter from administration, advising Peterson not to refer to students by other than their preferred pronoun. He is upset, because he believes that the new gender politics is an activist fiction, at odds with biological and psychological reality. Consequently, he feels as though he is being compelled to say something that he believes is false -an unfathomable perversion of academic and personal freedom.

Perhaps the administration is simply going along with the gender progressive zeitgeist; or perhaps they are proactively responding to the Ontario Human Rights Code. If students were discriminated against by Peterson on the basis of their gender identity, a protected class under the ON Human Rights Code, then the adjudicating body -the Ontario Human Rights Tribunal- would find that to be a basis for (non-criminal) sanctions. To be clear, intentionally referring to students by other than their preferred pronoun would constitute a form of harassment. Peterson and his employer, the University of Toronto, are right to be concerned.

That’s not the end of the legal story. The ON Human Rights Code must be consistent with the Charter of Rights and Freedoms, which is the legal source for the freedom of expression in Canada. That determination would be made on appeal from the ON Human Rights Tribunal’s decision, if such a decision were to be made based on a complaint (this hasn’t happened yet). This would require a determination that Peterson’s right to expression was infringed, followed by a consideration of whether the infringement was allowable under section one of the Charter, which is the internal balancing mechanism used when Charter rights conflict with pressing and substantial legislative objectives.

There is also the vaguely looming spectre of amending Canada’s Criminal Code to include gender identity as a protected class, which Peterson seems to suggest would mean criminalising improper pronoun usage. It doesn’t. The change means that the law will recognise hate crimes against gender non-binary people in the same way that it recognises hate crimes against other protected groups. This change will not in any sense criminalise speech, as some people have implied or inferred. At all. This is a red herring, either the result of ignorance or deliberate distortion.

That’s the legal side of all this, in broad outline. The issue is further complicated by the content of Peterson’s expression itself. An entire side debate could be spawned on the complex relations between sex, gender, and society, without ever touching on the issue of free speech. This is made even more challenging by the lack of clear data on gender non-binary people. We don’t know what percentage of people we are talking about, partly because of a social stigma that is only now beginning to erode. What we do know is that younger people are more likely to identify as gender non-binary, suggesting that the vanguard of gender conservatism was blocking a group of our people from receiving their due recognition, concern, and understanding.

In order to discuss this complex constellation of issues, the University of Toronto held a panel forum, what some people have called a debate. This was Peterson’s opportunity to take a very public stand on his views, to decry the activism that is eroding academic freedom, while staring into the eyes of the very people who embrace that erosion -his enemies, the turncoats who have forgotten the importance of the freedom of expression.

In a way, the debate was over before Peterson stepped up to the podium. Here he was, embroiled in a public controversy over statements he had made in various forums, standing in front of a microphone in a lecture auditorium at the University of Toronto, in an event held specifically to address his positions, and complaining that he doesn’t have free speech. Evidently, Peterson has all the free speech he could possibly need, and a larger platform than most people enjoy. He can write papers, produce videos, speak to the media, serve on a panel forum, and deliver lectures to a captive audience. What he can’t do is use the dignity of his students as a platform. He doesn’t have that right.

Let’s be clear. Peterson’s freedom of expression has been restricted. It has been restricted in the very narrow context of the gender identity he is allowed to ascribe to his students. The law says he can’t refer to students by other than their preferred pronoun. This is undeniably a restriction on his freedom of expression, albeit in a narrow context.

Let’s also be clear about constitutional law. The freedom of expression is not absolute. Like all of the Charter rights, there can be reasonable exceptions for pressing and substantial objectives like, for example, protecting the well-being, dignity, and equal rights of students in university classrooms. Peterson stands to do real harm by his refusal to treat non-binary students with equal respect, and it is exactly this sort of damage that the law seeks to prevent. Not only is his behaviour immediately damaging to gender non-binary people on campus, not only does it create a hostile environment for them, but there are also lingering discriminatory effects (for example, pronoun mismatches in official correspondence can create problematic legal situations, loss of future opportunity, refusal for various applications, etc). Peterson seems to believe that freedom of expression means he is entitled to use the identity of students in his classroom as his personal soapbox, stepping on their dignity in order to make an academic point. If he ever has to go to court on this issue, he will assuredly lose his appeal, and hopefully also his professorship. Since no legal action is currently forthcoming, all he stands to lose now is whatever is left of his credibility.

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