In the instant case, H’s expression is counter-speech motivated by a desire
counter expression he perceived to be untrue, prejudicial towards transgender and other
2SLGBTQ+ individuals, and potentially damaging to transgender youth. The
transgender community is undeniably a marginalized group in Canadian society. The
history of transgender individuals in Canada has been marked by discrimination and
disadvantage. Transgender and other gender non-conforming individuals were largely
viewed with suspicion and prejudice until the latter half of the 20th century, and have
been stereotyped as diseased or confused simply because they identify as transgender.
Significant legal advancements in transgender rights have only come in the last 35
years, with most change taking place in the last decade, and judicial recognition of the
plight of transgender individuals in Canada is growing in the wake of legislative
progress. Yet, despite some gains, courts and tribunals have recognized that
transgender people remain among the most marginalized in Canadian society, and
continue to live their lives facing disadvantage, prejudice, stereotyping, and
vulnerability.
H’s counter-speech fell close to the core of s. 2(b). His expression served
a truth-seeking function, and in speaking out, he sought to counter expression that he
and others perceived to undermine the equal worth and dignity of marginalized groups.
There is a great public interest in protecting H’s freedom of speech on such matters.
The subject matter of H’s speech (commenting on the value of a government initiative,
the need for safe and inclusive schools, and the fitness of a candidate for public office),
2023 SCC 14 (CanLII)
to promote tolerance and respect for a marginalized group in society. H spoke out to
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