Neufeld v. British Columbia Human Rights Tribunal: On the Tyranny of Rights
by Collin May
A recent decision by the British Columbia Human Rights Tribunal (BCHRT) here in Canada has caused an international uproar. Barry Neufeld, a former elected school trustee from Chilliwack, B.C., a city east of Vancouver, found himself on the wrong side of a complaint alleging he discriminated against transgender teaching staff when he made public statements opposing a gender-affirming curriculum in B.C. schools. After more than eight years of wrangling, the BCHRT released its determination on the case last week, finding against Neufeld and awarding the complainants the remarkable sum of $750,000 Canadian, or about $550,000 in American dollars.
The BCHRT decided that numerous statements and social media posts from Neufeld breached provisions of the province’s human rights code, including bans on the publication of hate speech. The Tribunal also found that Neufeld’s actions, taken in his capacity as a school board trustee, created a poisoned workplace for LGBTQ teaching staff. Specifically, the BCHRT ruled that Neufeld’s denial of transgender identity as distinct from sex at birth was an “existential” denial of the existence of trans individuals. Critics of the decision, including even British comedian John Cleese, have called it a threat to free speech and an effort to chill public debate on trans issues.
While the legal aspects of the case are fascinating on their own, I want to move beyond the confines of law to consider the broader power dynamics at play, both in terms of the decision itself and the public reaction. Specifically, I want to uncover the homogenizing effects of state-authorized disciplinary entities such as human rights commissions as they act to deploy and control political speech in a modern democracy like Canada.
In doing so, I will look at three aspects of the case. First, using my own scholarship on the self-incriminating dynamics of a cancellation event, I will demonstrate how the BCHRT was complicit in and exploited Neufeld’s self-condemnation. Second, engaging a critical theory lens, I will consider how the contemporary notion of human rights as monopolized by the state through punitive administrative tribunals narrows the boundaries of acceptable public speech. Finally, I will analyze the response to the Neufeld decision as an instance of the growing efforts of non-state-authorized actors to counter the homogeneity of contemporary disciplinary rights with dissenting heterogeneous sources of authority. This analysis draws on my own experience as a Commissioner and Chief of the Alberta Human Rights Commission.
Cancellation as Self-Inflicted Silencing
Though there are many glaring statements that stand out in the BCHRT decision, one is of particular interest for our discussion. In 2017, as the B.C. government was issuing its Sexual Orientation and Gender Identity (SOGI) educational program for grade students, Neufeld, then a public school trustee, posted a Facebook statement in which he referred to the SOGI program as a “weapon of propaganda” designed to instruct students that “gender is not biologically determined, but a social construct.” Neufeld went on to characterize gender-affirming care as a form of “child abuse.”
The post was Neufeld’s first public foray into the topic, and though it would not be his last, it evoked an immediate response that mirrors the tripartite dynamic of a cancel culture event. As the BCHRT decision notes, the Facebook post “raised alarms within and outside the [school] District.” As a result, Neufeld did something that is the norm in the ritualized domination of speech we call cancel culture: he apologized. Regardless of whether it was warranted, Neufeld stated that “I want to apologize to those who felt hurt by my opinion.” He added that “in a free and democratic society, there should be room for respectful discussion and dissent.”
While his post contains many of the standard phrases common to a cancellation event apology, what is most interesting is that the BCHRT decision decided to reproduce the statement with its own commentary, writing: “Unfortunately, Mr. Neufeld’s commitment to respectful discussion and dissent did not last.” In my own research on cancel culture, I have identified three parties that are necessary for a cancellation event to occur. These include: (a) the cancelers who initially call out a statement for the purposes of virtue signaling to their own political in-group; (b) the target who routinely implicates themselves in an alleged harm by issuing a subtly coerced apology or statement; and (c) third-party institutions such as employers who complete and verify the cancellation dynamic by terminating or otherwise deplatforming the target.
In Neufeld’s case, we immediately encounter this hermetic and self-confirming tripartite structure in the decision’s initial pages. Alarms are raised by cancelers. Neufeld as the target becomes complicit in his own prosecution by issuing his apology. The BCHRT takes on the role of a third-party institution that uses the apology as proof of his guilt. As with the vast majority of cancellation targets, Neufeld unwittingly provided the rope to hang himself, so to speak. His apology, designed to placate critics, instead renders him complicit in his own silencing by condemning his past speech and providing ammunition for those third parties, such as the BCHRT, who might turn his words against him. In this sense, the power imbalance inherent in a cancellation event is embedded in the BCHRT’s decision.
Negativity and the Homogeneity of Human Rights
One of the main criticisms of the BCHRT’s decision in the Neufeld case concerns the chilling effect it will have on free speech, especially given the exorbitant damages award of $750,000. The point of these critiques is that free and robust public discussion, even offensive discussion, is necessary for a properly functioning liberal democracy. While the law and the decision cite the importance of free expression, the legal analysis employed by administrative tribunals uses a balancing approach between acceptable speech that expresses an opinion, on the one hand, and hate speech that allegedly harms individuals’ dignity or incites discrimination, on the other. This analysis, as deployed by the BCHRT, increasingly expands the ambit of hate speech at the expense of free speech.
However, it also has an additional and perhaps more insidious effect. By protecting certain speech and condemning other speech, state-authorized disciplinary regimes prioritize certain identities and sources of authority. Here it is useful to turn to the work of critical theorist and Telos founder Paul Piccone. In his writings, Piccone sought to understand the crisis of liberal democracy apparent in the twentieth century and again evident across the Western world in the domestic and international turmoil of the twenty-first century. In particular, he was concerned with the stifling uniformity of acceptable political speech that was becoming the hallmark of liberal democracies. In a view shared with many in the critical theory school, Piccone argued that liberal democracy was pushing aside and subsuming all other authorities, from religion and educational hierarchies to class and sexual distinctions. His response was to call for a populist deployment of excluded authorities on a local level to counter the overweening integrating force of the state.
Writing in the Hegelian tradition, Piccone believed that a level of negativity via robust contending authorities was necessary to produce social and political progress. If all authorities become standardized and subject to the pretensions of administrative conformity, as in the case of contemporary human rights commissions, liberal democracies will ossify and become what I have elsewhere called “prosecutorial democracies.” For Piccone, it is not only free speech that must be protected but the substantive and varied sources of political authority that prevent the homogeneity of human rights.
Applying Piccone’s analysis to the Neufeld case, the BCHRT decision appears as yet another effort by a disciplinary regime to control and limit acceptable speech while designating dissent as hateful, discriminatory, and objectionable. This comes to light when we consider that many of Neufeld’s posts contain religious references regarding the creation of two biological sexes as dispositive over socially constructed gender roles. Now, to those who would accuse Neufeld, and perhaps Piccone, of supporting Christian nationalism by referring to religious authority, it is fairly clear that this accusation misses the mark. In Neufeld’s case, he is certainly inspired by a specific religious position; however, as Piccone would argue, to maintain the health of our democracies, representatives of numerous heterogeneous authorities are required. Neufeld’s position would be one of those authorities. As far as Piccone is concerned, religion is just one of many countervailing social authorities that can stand against the homogenizing impact of late-modern liberal democracy; others include local political, social, and labor organizations.
The Reaction to the BCHRT
As I have noted, Neufeld’s case has drawn international attention. The vast majority of those commenting on it are appalled by the hefty fine, with some likening it to a new form of social justice blasphemy laws. In this regard, human rights have turned from the guarantor of a liberal framework for freedom to a prioritization of specific social actors. Not only are state-authorized entities determining what speech is condoned, they are implicitly giving preference to particular identity claims over others. This approach dovetails with the intention of cancel culture to silence dissent while privileging specific groups.
Those groups chosen for preferment tend to include ones that are most likely to challenge moral and political paradigms, especially Western paradigms. While Piccone would not oppose the diversity of differing authorities, what we are seeing now is entirely the opposite of diversity. Rather, under the rubric of inclusion, specific identities are given prominence for their presumed ability to challenge Western dominance. As with the Neufeld case, this includes transgenderism—but a form of transgenderism that eschews the sexual binary that once animated transitioning to the opposite sex, in favor of the gender fluidity espoused by authors such as Judith Butler. For this reason, among the most salient of allegations are those where the target is accused of transphobia, Islamophobia, or racism. Gone is the impetus to protect women from sexism, gay men from homophobia, or Jews from antisemitism; these groups are now themselves considered adjacent to the would-be oppressive white, straight male.
However, as the broad negative reaction to the Neufeld case indicates, while state-controlled administrative tribunals are actively narrowing the range of public speech, dissenting non-state actors are emerging, effectively giving teeth to Piccone’s remedy to the homogenization of rights and speech. These groups and individuals are largely immune to the silencing allegations leveled against them and increasingly assert their own interpretation of their rights in opposition to state-sanctioned regimes. This includes women challenging the entrance of trans individuals into women’s spaces and sports, gay men calling out efforts to pigeonhole younger gay men into transgender categories, and Iranians rediscovering dormant and suppressed religious and cultural traditions against the Islamist Iranian regime. While many of these opposing voices make their claims under the protection of liberal human rights, they do so explicitly in contrast to the contemporary capture of rights language by state-authorized ideologies within in our increasingly prosecutorial democracies.
Although the Neufeld case highlights the dangers of conformist disciplinary regimes and the tyranny of contemporary human rights doctrine for healthy democratic debate, the reaction to the decision also points to a diverse group of dissenting authorities rising up to challenge the state-approved narrative on rights. This is largely in line with Piccone’s prescription for populist movements operating at the local level. Whether this political and social movement will assist Neufeld in his legal appeal of the BCHRT decision remains to be seen.
Topics: Reflections & Dialogues
Collin May, a lawyer and writer in Calgary, Canada, is the former Chief of the Alberta Human Rights Commission and an adjunct lecturer in community health sciences at the University of Calgary. He is currently completing a book on the future of cancel culture.