I have been feeling many things about the September 20th protests at the New Brunswick Legislature. I am appalled that in 2023 we have to explain that gay people aren’t pedophiles, that gender identity isn’t about sex, that gender diversity is completely normal and threatens no one… For the last time, people, there are no litter boxes!
I was especially saddened because I knew some of the people protesting for “parental rights.” When you know someone it’s harder to label them a bigot. I’d like to think they are the victims of well-funded and well-organized misinformation campaigns. But regardless, these actions and words cause harm. They harm all of us by making our society less tolerant, but they especially harm LGBTQ+ people whose right to equality is being called into question.
I was contacted by a reporter about whether the protests involved hate speech. I told her that they didn’t. At least what I saw was all well within what’s legal. But that doesn’t make the words right or good. The law protects a lot of abhorrent speech, for good reasons.
As I write this I’m preparing a lecture on WIC Radio – a case about the limits of what is permissible to say in public debate over teaching about gender minorities in school. We’ll also be talking about Hansman v Neufeld, a similar but more recent case about SOGI (sexual orientation and gender identity) policies in BC schools. Plus ça change…
The problem with the protests is not that the speech was illegal. It’s that the speech called into question the equality of marginalized members of our society. Our Premier talked about teaching kids to lie. Better that they harm and isolate themselves, I suppose? Not that Premier Higgs seems interested in facts, but kids learn to lie at around age three. This is an insult to New Brunswickers’ intelligence.
I’ll end with what the Supreme Court recently had to say about our transgendered communities in Hansman v Neufeld (a defamation case from 2023).
 The transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in our country has been marked by discrimination and disadvantage. Although being transgender “implies no impairment in judgment, stability, reliability, or general social or vocational capabilities” (J. Drescher and E. Haller, Position Statement on Discrimination Against Transgender and Gender Diverse Individuals, 2018 (online)), transgender and other gender non-conforming individuals were largely viewed with suspicion and prejudice until the latter half of the 20th century.
 Indeed, transgender people occupy a unique position of disadvantage in our society, given the long history in psychiatry “of conflating [transgender and other 2SLGBTQ+] identities with mental illness” and even resorting to harmful “conversion therapy” to “resolve” gender dysphoria, and “recondition” the individual to reduce “cross-gender behavior” (A. Veltman and G. Chaimowitz, “Mental Health Care for People Who Identify as Lesbian, Gay, Bisexual, Transgender, and (or) Queer” (2014), 59:11 Can. J. Psychiatry 1, at pp. 1-2; American Psychological Association, Task Force on Gender Identity and Gender Variance, Report of the Task Force on Gender Identity and Gender Variance (2009), at p. 27). As the British Columbia Human Rights Tribunal has recognized, “[u]nlike other groups . . ., transgender people often find their very existence the subject of public debate and condemnation” (Oger v. Whatcott (No. 7), 2019 BCHRT 58, 94 C.H.R.R. D/222, at para. 61). They are stereotyped as diseased or confused simply because they identify as transgender (Nixon v. Vancouver Rape Relief Society (No. 2), 2002 BCHRT 1, 42 C.H.R.R. D/20, at paras. 136-37).
 Transgender people have faced discrimination in many facets of Canadian society. Statistics Canada has concluded that they are at increased risk of violence, and report higher rates of poor mental health, suicidal ideation, and substance abuse as a means to cope with abuse or violence they have experienced (see Experiences of violent victimization and unwanted sexual behaviours among gay, lesbian, bisexual and other sexual minority people, and the transgender population, in Canada, 2018 (September 2020)). Studies have concluded that they are disadvantaged relative to the general public in housing, employment, and healthcare (Department of Justice Canada, A Qualitative Look at Serious Legal Problems: Trans, Two-Spirit, and Non-Binary People in Canada (2022), at p. 10; XY v. Ontario (Government and Consumer Services) (No. 4), 2012 HRTO 726, 74 C.H.R.R. D/331, at paras. 164-66). And despite encountering a higher incidence of justiciable legal problems, studies have also found that transgender people have traditionally faced greater access to justice barriers than the broader population, in part due to a lack of explicit human rights protections (J. James et al., Legal Problems Facing Trans People in Ontario, TRANSforming JUSTICE Summary Report 1(1), September 6, 2018 (online); see also Department of Justice Canada, at p. 11).
 Significant legal advancements in transgender rights have only come in the last 35 years, with most change taking place in the last decade (S. Singer, “Trans Rights Are Not Just Human Rights: Legal Strategies for Trans Justice” (2020), 35 C.J.L.S. 293, at p. 298). Once forced to advance claims of discrimination on the ground of “physical disability” (B. Findlay et al., Finding Our Place: Transgendered Law Reform Project (1996), at pp. 20-21), gender identity and/or expression are now prohibited grounds of discrimination in human rights codes across the country and included within the prohibition against hate speech under the Criminal Code, R.S.C. 1985, c. C-46 (see Alberta Bill of Rights, R.S.A. 2000, c. A-14; Human Rights Code, R.S.N.B. 2011, c. 171; Human Rights Act, 2010, S.N.L. 2010, c. H-13.1; Human Rights Act, R.S.N.S. 1989, c. 214; Human Rights Act, S. Nu. 2003, c. 12; Human Rights Act, S.N.W.T. 2002, c. 18; Human Rights Code, R.S.O. 1990, c. H.19; Human Rights Act, R.S.P.E.I. 1988, c. H-12; Charter of human rights and freedoms, CQLR, c. C-12; Human Rights Act, R.S.Y. 2002, c. 116; The Human Rights Code, C.C.S.M., c. H175; The Saskatchewan Human Rights Code, 2018, S.S. 2018, c. S-24.2; An Act to amend the Canadian Human Rights Act and the Criminal Code, S.C. 2017, c. 13).
 In the wake of this legislative progress, judicial recognition of the plight of transgender individuals in Canada is growing (see XY, at para. 164; see also Oger, at para. 62; Vanderputten v. Seydaco Packaging Corp. (No. 1), 2012 HRTO 1977, 75 C.H.R.R. D/317, at para. 61; JY v. Mint Tanning Lounge, 2018 BCHRT 282, at para. 32 (CanLII); J.Y. v. Various Waxing Salons, 2019 BCHRT 106, 94 C.H.R.R. D/11, at para. 33; X v. Hot Mess Salon, 2019 BCHRT 24, at para. 11 (CanLII); T.A. v. Manitoba (Justice), 2019 MBHR 12, at para. 24 (CanLII); A.B. v. Correctional Service Canada, 2022 CHRT 15, at para. 41 (CanLII)). And in 2021, the Superior Court of Quebec held that “[g]ender identity is analogous to the grounds listed at s. 15(1) of the Canadian Charter” because “[g]ender identity is an immutable personal characteristic” (Centre for Gender Advocacy v. Attorney General of Quebec, 2021 QCCS 191, 481 C.R.R. (2d) 273, at paras. 104 and 106).
 Yet individual courts and tribunals have also recognized that, “despite some gains, transgender people remain among the most marginalized in our society” (Oger, at para. 62), and continue to live their lives facing “disadvantage, prejudice, stereotyping, and vulnerability” (C.F. v. Director of Vital Statistics (Alta.), 2014 ABQB 237, 587 A.R. 332, at para. 58).
If I’m tired of this nonsense. Imagine how our 2SLGBTQIA+ community members feel.
Hilary Young is a Professor in the University of New Brunswick’s Faculty of Law.