Dielectic vs Dogma

Jail Time for Misgendering? Revisiting Bill C-16 Nearly a Decade Later

This post revisits Bill C-16, a piece of Canadian legislation that became law in 2017.

Even though the bill is almost a decade old, it is still frequently cited as evidence that Canada criminalized speech or that people can be jailed for misgendering someone. Those claims continue to circulate despite the law having been in force for years.

Rather than rehashing culture war arguments from the time, this article looks backward with the benefit of hindsight. It compares the predictions that were made about Bill C-16 with what the law actually did and what has actually happened since.

The purpose is not to tell anyone what they should believe politically. It is simply to separate what the law does from what was claimed it would do.

What Bill C-16 actually changed

Bill C-16 did not create a new crime. It did not introduce a new speech offense. It did not mention pronouns.

What it did was add gender identity and gender expression to existing categories in three places (modified text in blue):

  1. The Canadian Human Rights Act, which governs discrimination in federally regulated areas such as employment and services.

    3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

  2. The Criminal Code provision dealing with the advocacy of genocide against an identifiable group.

    318 (1) Every person who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term of not more than five years…

    (4) In this section, identifiable group means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.

  3. The Criminal Code sentencing provision, where bias motivation may be considered after a crime has already been committed.

    718.2 A court that imposes a sentence shall also take into consideration the following principles:
    (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
    (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

This placed gender identity alongside race, religion, sex, sexual orientation, and disability. No new enforcement mechanism was created.

What the law does not do

Bill C-16 does not:

  • Criminalize misgendering
  • Require people to use specific words in everyday conversation
  • Create a speech crime
  • Impose automatic penalties
  • Mention pronouns at all

Most matters under the Canadian Human Rights Act are civil, not criminal. Typical outcomes involve orders to stop discriminatory conduct or, in some cases, fines. Criminal sanctions are not the starting point.

Where the “path to jail” claim comes from

The argument usually goes like this:

Misgendering can lead to a complaint.
A complaint can lead to a fine or order.
Refusing to comply with a court order can lead to jail.
Therefore misgendering can lead to jail.

This framing skips over critical steps and treats the most extreme enforcement outcome as if it were the purpose or direct effect of the law.

To see why this reasoning fails, it helps to apply it elsewhere.

Are muffins a criminal risk?

Imagine someone is in a bakery buying a muffin.

While standing in line, they witness a crime that has nothing to do with them or the muffin. Later, they are lawfully summoned to court as a witness.

If they ignore the summons, the court can hold them in contempt.
If they continue to refuse, they can ultimately be jailed.

By this logic, trying to buy a muffin can lead to jail.

Of course, no one would seriously claim that muffins are criminalized or that buying baked goods is a pathway to prison. The jail time is not punishment for buying a muffin. It is a consequence of refusing to comply with a court order.

This is the same structure used in the “jail for misgendering” argument. The initial act is lawful and non criminal. Jail appears only after a separate, voluntary refusal to comply with court authority.

What legal experts said at the time

These claims were addressed directly when Bill C-16 was debated.

Professor Brenda Cossman, a law professor and former director of the Bonham Centre for Sexual Diversity Studies, explained that Bill C-16 does not create compelled speech and does not criminalize pronoun use. Her analysis focuses on how human rights law functions in practice, not on hypothetical worst case scenarios.

Professor David Schneiderman of the University of Toronto addressed the free expression concerns and explained why they misunderstand Canadian constitutional law and the limits of human rights enforcement.

The Canadian Bar Association issued a public letter stating that fears about criminalizing speech and jailing people for misgendering were unfounded and based on a misreading of the law.

These assessments were made before the law even came into force.

What actually happened after Bill C-16 passed

Bill C-16 has now been law for years.

There has been no wave of arrests.
There has been no criminalization of pronoun use.
There has been no evidence that misgendering is punished with jail.

The predicted outcomes did not materialize.

Why the claim persists

The “jail for misgendering” narrative works because it collapses a long legal process into a single step and presents the final enforcement mechanism as if it were the law’s intent.

It also blurs the distinction between civil remedies and criminal punishment, and between refusing a court order and committing an offense in the first place.

This framing is emotionally effective. It is not legally accurate.

Conclusion

People can reasonably disagree with Bill C-16 as a matter of policy. They can argue that human rights law has expanded too far or that social norms are being enforced in unhealthy ways.

But disagreement should start from reality.

Nearly a decade later, Bill C-16 has not criminalized speech, has not sent people to jail for misgendering, and has not produced the outcomes predicted by its most vocal critics.

Revisiting the law now shows something important: the fear narrative was louder than the facts.

Sources

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