Bill C-389 (Historical)

An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression)

This enactment amends the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds of discrimination.
This enactment also amends the Criminal Code to include gender identity and gender expression as distinguishing characteristics protected under section 318 and as aggravating factors to be taken into consideration under section 718.2 at the time of sentencing.

Canadian Human Rights Act

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, today marks three years since Bill C-389 was adopted by the previous minority Parliament.

The bill would have filled a significant gap in our human rights legislation by providing equal rights and equal protection under the law to transsexual, transgendered, and gender variant Canadians.

Unfortunately the Senate failed to deal with Bill C-389 before the election. After the 2011 election, I was privileged to pick up the work of Bill Siksay, the former member of Parliament for Burnaby—Douglas.

My private member’s bill, Bill C-279, passed the House with support from all parties on March 20, 2013.

Unfortunately, three years after Canada's elected representatives first acted and nearly one year after the House again endorsed equal rights for all, trans-Canadians are still waiting for full equality.

Last June, the Senate justice committee completed hearings on the bill and approved it without amendment. Today, I am calling on the unelected Senate to act quickly to honour the will of the House.

Trans-Canadians continue to face high levels of discrimination and violence on a daily basis. There is no time and no excuse for further delay.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I am pleased to have a few minutes today to discuss Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code. Quite simply, Bill C-279 seeks to provide human rights protections to a group that remains a significant victim of discrimination in our society. Specifically, Bill C-279 seeks to amend the Canadian Human Rights Act to add both gender identity and gender expression as prohibited grounds of discrimination. It seeks to amend the Criminal Code to include gender identity and gender expression to the definition of identifiable groups in its provisions on hate propaganda. It seeks to add gender identity and gender expression to the Criminal Code's list of aggravating factors that affect sentencing.

As the Ontario Human Rights Commission has noted:

There are arguably few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Transphobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.

Given that the purpose of the Canadian Human Rights Act is to provide protection to the most vulnerable groups in Canadian society, it is my sincere hope that all members of the House will join the Liberal Party in supporting these logical and necessary modernizations of our existing laws. It is our belief that the amendments contained in Bill C-279 are an appropriate way to improve the human rights protections of a socially and economically marginalized group.

I would like to briefly comment on human rights in Canadian society.

Thirty years ago, Canada established the Canadian Charter of Rights and Freedoms. It was a very, very important initiative. At the time, the protection of Canadians' rights was not as strong as it is today. The charter was the means used to strengthen these basic rights.

The charter also protected Canadians' rights by being entrenched in the country's Constitution.

Why did the other political parties, such as the NDP and the Conservative Party, not celebrate the 30th anniversary of the Canadian Charter of Rights and Freedoms? Why did they ignore its anniversary in March 2012?

At the time, it took courage to promote the creation of this charter. Today, it is up to our society to respect the rights and freedoms of Canadians. This is not a divisive or a shocking issue. Why did the other political parties not say a few words to celebrate the 30th anniversary of such an important event in the history of our country?

Moving back to Bill C-279, this is the culmination of years of effort and already represents the will of the House. Since 2005 this bill has been introduced on six occasions by the member for Burnaby—Douglas of the NDP. It was introduced once by my hon. colleague from Vancouver Centre and most recently by the member for Esquimalt—Juan de Fuca.

In 2010 the bill, which at the time was Bill C-389, was passed by the House of Commons without amendment, only to die on the order paper after being referred to the Senate.

The statistics on transphobia, which my colleague from Esquimalt—Juan de Fuca eloquently pointed out in his remarks, are as striking as they are disturbing. Indeed, 95% of transgendered students feel unsafe at school and 9 out of 10 have been verbally harassed due to their gender expression. If this were one of our sons or daughters, feeling unsafe in school, all of us would take action to protect those rights.

Furthermore, statistics from the United States reveal the significant incidence of de facto discrimination experienced by transgendered individuals. A recent national survey found that transgendered respondents experienced unemployment at twice the rate of the general population and were significantly more likely to be homeless and low-income earners. This is just wrong. Attitudes in society must change and this bill is directed to that result. As well, a shocking statistic is that 97% of transgendered respondents in a recent survey reported experiencing harassment or mistreatment at work on the basis of gender identity or expression. I am quite certain we can all agree that this too is simply wrong.

As gender identity and gender expression refer not to an individual's biological sex or sexual orientation but rather the individual's inner knowledge of being male, female, both or neither, it is essential that Parliament send a clear and unambiguous message that this is a crucial equality rights issue. Adopting the amendments proposed in Bill C-279 is not just about ensuring transgendered Canadians enjoy the legal protections accorded to other targeted groups. It is also an opportunity for Parliament to send an unequivocal message of support to transgendered Canadians that we in this House affirm their identity and acknowledge their struggles. This would be a humanitarian step that would cost nothing. It is in alignment with the basic principles of fairness, humanity, equality, inclusion and respect. It is an opportunity for all parliamentarians to really look into their hearts and to express their values and principles of inclusion.

As my hon. colleague from Mount Royal noted, a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people invisible. By amending the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds for discrimination, Parliament would enable the Canadian Human Rights Commission to keep statistical accounts of incidents of discrimination against transgendered individuals. The ability to compile and analyze such data would be crucial in confronting the scourge of discrimination that transgendered people continue to face in our society and might also guide educational efforts in the broader community.

We know well that having clarity and being able to measure and compile statistics has been essential in Canada's efforts to reduce other forms of discrimination against Jews, against people who are other-abled and in many other cases. What we do not measure, we cannot have objectives to improve. When we do not have objectives, we will be unlikely to achieve that goal.

I am proud that in 1996, guided by the principles of equality, justice and the fundamental need to protect vulnerable groups in Canadian society so we may prosper together, the Liberal Party amended the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination. It is now time to carry on the fight against discrimination by making it clear that gender identity and gender expression are also prohibited in our society. Our job, as members of Parliament, is to do our very best for the common good and our very best to show respect, inclusion and humanitarian care for all members of our society.

For the group that this bill addresses, its turn has come. That is why I encourage all members on the opposite side of the aisle to also support this bill.

[Dean Allison, Conservative, Niagara West—Glanbrook, ON]

Mr. Speaker, I personally believe that the discrimination, persecution or incitement to hatred of any group, based on sex, race, religion, should not be tolerated.

Today we are here to talk about Bill C-279, which proposes to make three changes to the law.

The first would be to add “gender identity” and “gender expression” to the list of prohibited grounds for discrimination in the Canadian Human Rights Act.

Second, it would add “gender identity” and “gender expression” to the definition of identifiable groups to section 318 of the Criminal Code. It would be an offence to advocate or promote genocide, to publicly incite hatred, likely to lead to a breach of peace, or to wilfully promote hatred against groups that are identifiable on the basis of gender identity and gender expression.

Third, it would add “gender identity” and “gender expression” to section 718.2 of the Criminal Code, which would direct a judge to consider increasing the sentence beyond its usual range for an offence that was motivated by bias, prejudice or hate based on gender identity or gender expression.

These three changes are unnecessary.

I will begin with the proposed amendments to the Canadian Human Rights Act. The act already prohibits discrimination on the grounds of sex. This means that the act prohibits hiring decisions based on prejudice against women or men. It prohibits sexual harassment in the workplace. It requires reasonable accommodation for pregnancy. The act protects against these and other kinds of sex discrimination in the federal workplace and elsewhere in federal jurisdiction.

The Canadian Human Rights Act does not require total blindness to the distinction between men and women. Instead, the task of this law is to intervene in situations where people experience certain kinds of discrimination on the grounds of sex.

Canadian society recognizes that there are gender norms. When attitudes and practices involving gender become sex discrimination, the law should and does intervene. However, the law cannot simply abolish gender categories and gender norms in Canadian society. Nor can tribunals and courts be asked to reconstruct and interpret gender norms. That is an unrealistic view of what the legal system is empowered and entrusted to do.

We heard in the course of debate on the previous version of this bill, Bill C-389:

Transsexuals are people whose gender identity differs from their biological or birth sex, and who seek to live permanently as the gender other than their biological sex. Most often transsexuals seek medical interventions such as hormones and surgery to make their bodies congruent with their sense of their genders. A transition process which is known as sex reassignment or gender reassignment is engaged.

In the case of transsexualism, the law has found that gender categories and gender norms cause unfair disadvantages to those people. Transsexuals might not fit social norms due to their unique situation, but as interpreted in numerous decisions, the Canadian Human Rights Act already protects against discrimination on the basis of transsexualism. This is one situation where the law has intervened in order to remedy a form of sex discrimination.

I understand that there is an intention to cast more light on the disadvantages faced by transsexuals, but what Bill C-279 proposes to do goes far beyond that. The bill does not name a particular group of people in order to protect them from a distinctive kind of discrimination. Instead, it proposes two characteristics, “gender identity” and “gender expression”, that everyone has. Everyone has a gender identity and everyone expresses their gender, intentionally or unintentionally, in some way or other.

I would like to repeat that some gender norms may be problematic. Some have been found to be discriminatory and have been prohibited. The Canadian Human Rights Act already protects against sex discrimination. Under this rubric, it also protects against discrimination on the basis of transsexualism. Therefore, it is not clear what problem the proposed amendment is hoping to solve. Again, it is unnecessary and an unpredictable response to very particular problems.

This brings us to the next problem arising from the bill. To the extent they seek to reach beyond transsexualism, the new grounds of gender identity and gender expression are vague.

How would anyone know whether one's expressive act is gender expression if there can be no assumptions about how each gender is expressed? Can people act in any way they choose, so long as they claim to be expressing their conception of their gender? If that is the case, then the ground of gender expression will have no limits and have very broad implications. Or will it be up to courts and tribunals to decide what kinds of characteristics express gender and which do not?

It would also create much uncertainty about the meaning of these new grounds and perhaps increased litigation.

The proposed wording is vague and it makes the proposed amendments to the Canadian Human Rights Act unwise, especially since they are unnecessary to address what seems to be to the core issue, which is discrimination on the basis of transsexualism.

Vagueness has even more serious implications when we turn to the proposed amendments of the Criminal Code.

The proposed amendments to the hate propaganda offences protect new identifiable groups, namely, those identifiable on the basis of gender identity and gender expression. The hate propaganda offences are serious. Convictions can result in sentences of between two and five years. The offences also limit freedom of expression, a core Canadian value, and must clearly be delineated so Canadians will know where the limit is drawn.

Given the stakes involved, it is important to know which groups are identifiable on the basis of gender identity and gender expression. Transsexualism might define an identifiable group but, again, the proposed new grounds go far beyond transsexualism.

Gender expression is expressly problematic. How does a speaker know when a characteristic is one of gender expression. If a speaker says strong words against people with certain behaviours, can that be made into hate propaganda on the basis of gender expression simply if those people claim their behaviour to be the way of expressing their gender identity? We are left in the dark about who the identifiable groups will be. It is especially problematic in these offences, which will criminalize speech without clear notice of what can and cannot be said.

Ultimately, it would be left to the courts to decide which aspects of people's behaviours were expressions of gender and which were not. This is not their role. It would also leave the public unaware of what would be prohibited, as we waited for the courts to reconstruct Canadian gender norms for us.

These same uncertainties attach to the proposed amendment to section 718.2. This section directs a sentence be increased for an offence that was motivated by bias, prejudice or hate based on certain personal characteristics. The list of such characteristics is open-ended and includes, “any other similar factor”. I understand that one purpose of this bill is to make explicit what may already be covered by a bad open-ended phrase. However, by adding “gender identity” and “gender expression”, what is made explicit are very vague terms. This would be counterproductive amendment.

I believe these technical arguments in themselves give just cause to vote against Bill C-279.

However, I would also like to discuss a very real concern that was expressed during debate on an earlier version of this bill from the previous Parliament. In fact, this argument resulted in the previous bill being dubbed the “bathroom bill” in certain quarters.

The fact is that creating a right to gender identity and gender expression would likely result in men who are in gender reassignment therapy having access to girls' bathrooms. As the bill would also give special rights to those who simply consider themselves to be transgendered, the door would be open to sexual predators having a legal defence to charges of being caught in a women's washroom or locker room.

I find this potentially legitimized access for men in girls' bathrooms to be very disconcerting. As sexual predators are statistically almost always men, imagine the trauma that a young girl would face, going into a washroom or a change room at a public pool and finding a man there. It is unconscionable for any legislator, purposefully or just neglectfully, to place her in such a compromising position.

The bill would not address this very real possibility and in itself is reason for me to personally not support it.

The bill is an unfocused and unpredictable response to the very particular challenges that are faced by transsexual persons. The amendments to the Canadian Human Rights Act and the Criminal Code are unnecessary and I will not support the bill.

[The Speaker, Liberal, Peter Milliken]

The House will now proceed to the taking of the deferred recorded division on the motion at third reading stage of Bill C-389 under private members' business.

The House resumed from February 7 consideration of the motion that Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the third time and passed.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I want to thank all of the MPs who participated in the debate on Bill C-389 here in the House, in committee and in the community. I want to express my appreciation to those who are supporting the bill. Please note too that members of the transgender and transsexual communities appreciate this support.

I would like to speak personally for a moment. As a gay man, I know that securing my place as a full and equal citizen has been a long journey and an often hard-fought struggle. As a gay man, I know that my liberation came about thanks to the hard work, risk-taking and sacrifice of many queer brothers and sisters, and many strong allies. As a gay man, I know that the battle for my equality in our society was often led, often championed, by members of the transgender and transsexual community. I know that it was the drag queens who helped us fight back, and perhaps taught us to fight back, against the oppression, discrimination, prejudice and violence that we faced.

At Stonewall, but also long before and long after Stonewall, it was members of the trans community who helped lead and motivate our fight, and who stood in solidarity with us time and time again. That is one reason why I am proud to stand in solidarity with the transgender and transsexual community, as we finally seek their full equality and seek to establish their full human rights in law in Canada.

I have been greatly honoured to have been taken into the confidence of the trans community to be an ally and to work in solidarity with the community. It has been an honour to hear their stories and learn of their struggles. I have learned to be a better ally, a better friend, a better citizen as a result.

I have met beautiful, strong, loving and articulate people who face challenges I can hardly imagine and I am sure I do not fully appreciate. I count as friends people who live proud lives and express their full humanity against many odds. My understanding of what it means to be fully human has been challenged and expanded greatly by what I have been taught.

I have seen and sometimes shared the frustration, the anger, the tears and the deep sadness of people who are not yet equal, who too often face violence, sometimes to the point of death, and who mourn the loss of friends and family for whom the pain was more than they could bear. I have been strengthened by their resolve to claim their true identity and their place in our society, to live full lives and to be fully human.

This week the House will make a decision on the explicit inclusion of transgender and transsexual Canadians in our human rights law. That vote on Wednesday night will likely be very close. We may see the bill pass, which will be a cause for celebration and an opportunity to continue our work as it moves to the Senate; but the bill may also be defeated, it is that close. If that happens, let us remember that things have changed since we began this particular project six years ago. Let us remember that this is not the only forum in the struggle for the full equality of trans people. Let us not forget the victories and progress we have made in other places. Let us bask in the support of the new friends and allies we have found here in this place and across the country, and let us get ready to resume our work with new strategies and new plans.

I am confident that the change we seek will come. Justice will be done, and perhaps very soon the open and proud voice of transgender and transsexual Canadians will be heard loudly and clearly in this place. I hope that very soon an open member of the trans community will be elected and be able to directly, and from personal experience, voice the concerns of the community here in the House of Commons. There are celebrations to come.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I am pleased to be able to participate in the debate on Bill C-389, which aims to add gender identity and gender expression to the Canadian Human Rights Act and to the hate crimes provisions of the Criminal Code.

I have always been an ardent defender of human rights, including the rights of transgendered people. Transgendered Canadians face an unacceptable amount of discrimination in their everyday lives. Any amount of discrimination is unacceptable, but I must point out that transgendered Canadians face a much higher level of discrimination than others. Too often they are the victims of discrimination in the workplace and health care system, and they are more likely to become victims of violence.

In no way will this bill lead to the decriminalization of any form of sexual exploitation. I believe that such crimes are the most reprehensible in our society. I also find it extremely offensive to categorize all transgendered individuals as peeping Toms, pedophiles or rapists, as some do. I am proud to support this bill.

There are a number of myths surrounding this bill and the impact it will have. I would like to speak about the eight main myths and show that they are not based on truth or fact.

As I just mentioned in French, there are eight principal myths that are being promoted to oppose Bill C-389 and I wish to debunk them in the House.

Myth number one is that Bill C-389 would provide an opportunity for pedophiles to hang out in bathrooms, waiting for young girls. This is completely false. Pedophilia is an heinous crime in all circumstances, without exception. Pedophilia is punishable under the Criminal Code of Canada under section 151. Section 151 stipulates:

Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years...

In no way whatsoever would the bill permit any form of sexual exploitation, including pedophilia. I find it offensive to characterize all transgendered individuals as pedophiles, as some have done in their opposition to the bill.

Myth number two is that the bill would expose our children to perverts in public showers and changing rooms. We already have heard members of the NDP, including the sponsor of the bill, address this, but I would like to address it again.

This is, again, a completely false statement. As indicated above, in no way whatsoever would the bill permit any form of sexual exploitation. Any form of sexual exploitation is punishable under our Criminal Code. Therefore, for people to claim that the bill would legalize sexual exploitation, in certain cases, is completely false. They know it is false, and shame on them for trying to use that as an argument against the bill.

Myth number three is that the bill would override other criminal laws. It is shameful that anyone would try to use that argument to oppose Bill C-389. Part V of the Criminal Code of Canada is clear on what constitutes a sexual offence. Nothing in Bill C-389 would supersede or override these provisions, regardless if one is transgendered or not. Therefore, for people to promote that myth, shame on them.

Myth number four is that teaching of gender expression in schools would become mandatory. There is not a single provision in the bill which would require the teaching of gender expression in schools. Anyone who claims there is should have the courage to stand and point out where that is in the bill. There is nothing in the bill that would require the teaching of gender expression in our schools.

Myth number five is that Bill C-389 would promote sexual confusion among vulnerable teens. According to the American Psychological Association, sexual orientation, “refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes”. That comes from “Answers to Your Questions For a Better Understanding of Sexual Orientation & Homosexuality”, Washington, DC, United States, 2010.

The bill would not promote sexual confusion. If anything, it would promote sexual clarity. We have heard about how young teens who are transgendered are thrown out of their homes are subject to discrimination. For teens to feel safe about expressing their gender, sexuality and identity is necessary in a free and democratic society that promotes the rights of everyone and seeks to protect individuals and groups from discrimination. This bill would move that fight and that protection so much further in a positive way.

Myth number six is that Bill C-389 is being advanced for a tiny group of sexual activists. Again, this is completely false. Transgendered individuals face an unacceptable amount of discrimination in their everyday lives and are likely to become victims of violence. We have heard it again and again, whether it be from testimonials, which were read by the member sponsoring the bill, or from the letters the member for Halifax has received from transgendered individuals, or from friends or relatives of transgendered individuals expressing the kind of violence that transgendered individuals face in our society today.

Although transgendered individuals constitute a small minority of the Canadian population, all Canadians have an equal right not to be subjected to discrimination. This bill is being advanced in the name of equal rights. It is not because there is one, or ten or a hundred that discrimination is justified. It is not justified. All Canadians, regardless of their sexual orientation, their gender expression or identity have a right to be safe, to work, to equal access to health services, to lodging and to move about in our society without fear of being victims of violence because of their gender expression or identity. If adopted, the bill will go a long way to ensuring that.

Myth number seven is that Bill C-389 would make any complaint against transgendered individuals a hate crime. Again, this is completely false. Not all complaints against transgendered individuals will be considered hate crimes. The Canadian Human Rights Act defines a hate message as:

—any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Only messages relating to transgendered individuals that fall within the above definition would be considered hate messages. This is currently the case for messages related to one's race, national or ethnic origin, colour, religion, age, or sex.

I will have to end there because my time is up. However, I support the bill and I urge all my colleagues, including those of my caucus, to support it. I am pleased it was adopted in the past vote.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I am very proud to speak to Bill C-389, affectionately known as the trans rights bill.

I was here for the first hour of debate at second reading when my colleague, the member for Burnaby—Douglas, moved the bill and spoke to it. He pointed out what a historic moment it was, a moment to actually have a debate on transgender issues in Parliament and that it was the first time that this issue had even been discussed within these four walls, in the House of Commons.

The member for Burnaby—Douglas, who is a tireless advocate for issues in the rainbow community and also the NDP critic on sexual orientation and gender identity policy, pointed out that while it was a historic moment in the House, his one regret was that, to our knowledge, there were no transgendered MPs in the House who could speak to this bill and provide a first voice perspective to the importance of this legislation.

I have been thinking a lot about that since we heard from the member for Burnaby—Douglas on that point. I am a queer rights activist. Since my first meeting at TBLGAY at York University in my undergrad year, I have done what I could to stand up for the rights of gay, lesbian, transgender and bisexual people in Canada. I have done what I could to be an ally to the rainbow community.

However, nothing that I can say about our trans rights bill in this House could be a replacement for hearing from the lived experiences of transgendered Canadians.

I am going to use my time today to bring the voices of people, some from Halifax and others from around Canada, who contacted me about this bill.

Some of them have identified themselves to me as being transgendered, some as trans allies, and some have not identified themselves one way or another, but they have identified themselves as supporters of this bill.

They have all contacted me because they care deeply about what happens to this legislation. They care deeply about transgender and transsexual rights.

I want to share their voices with everyone in this House, so that these people have an opportunity to be heard by all MPs in this important debate.

Sandra Bornemann is a young woman with whom I have had the privilege of working with in Halifax. She works for the youth project in Halifax. We worked on some projects together. We worked on some issues together. Sandra wrote to me and said quite simply, “Trans people are often victims of discrimination, harassment and violence. They are all too often denied employment, housing, access to health care and face difficulties obtaining identification. Trans people are workers, citizens and beloved members of our families. They deserve respect, equality and protection from discrimination and violence”.

Krista McLellan wrote: “I am writing to you as a constituent to ask that you support Bill C-389 when it comes up for third reading in December and that you ask your caucus to do the same”.

Another constituent of mine wrote: “I am a resident of Halifax and am a transgendered person. While I have spent much of my career advocating for the rights of others (e.g. African Nova Scotians, persons with disabilities, new Canadians, single parents, gay, lesbian and bi) within my community, I have never been able to find the courage to identify that I am transgendered or to advocate for myself. It was only a few years ago that I disclosed to my wife and adult children that I am transgendered. Perhaps the reasons for keeping this a secret have been numerous. For example, not wanting to distract attention from the groups I worked with. Also, there was certainly fear. The fear of discrimination, loss of employment, hurt to my family and friends, etc. There was also the fear of being labelled sick, as I have heard others refer to transgendered people so many times. I have become aware of Bill C-389, an Act to Amend the Canadian Human Rights Act and the Criminal Code and I am asking that you support this bill. As I am sure you are aware, transgendered people cover a wide range of expressions. This includes, most typically, transsexuals and crossdressers. In my case, I believe the aboriginal term “two spirited” best describes what I am (both male and female). For years I believed this was a curse, but I have come to realize it is a blessing. It has allowed me to truly achieve all I have in life and to gain a unique perspective in the world. In closing, I do hope that now you can help advocate for me and others by supporting this very important bill”.

John Ross and Rev. Warren Schell co-wrote a letter to me, and it reads: “We are writing to you today to ask you to support Bill C-389. We are very aware that transsexual and transgender people are among the most marginalized persons in our society. They often encounter great difficulty in finding places to live, employment and services”.

That was obviously an excerpt.

I would like to read another excerpt from a letter I received from Mercedes Allen, who said, “I would like to express my deepest appreciation for your support of Bill C-389 at second reading, and hope that you will continue to do so when the bill comes up for discussion and final discussion and vote on Wednesday, February 9th”.

She discusses her thoughts about the legislation and finishes her letter by saying, “Again, I thank you for your support...and all that you have done to support our community. I am not a “spokesman” for the trans community per se, but nevertheless believe I can say that your support is much appreciated by many.

I will read from another letter that I received, which states: “I am writing today to contribute my support for Bill C-389. Currently, transpeople are only protected implicitly, and often face extreme violence and discrimination. Many people live in poverty and have difficulty paying for the daily costs of living and health care. This is largely due to the discrimination and violence that they are subjugated to, including difficulty in finding employment, residence, support networks, and services. It is a testament to the strength of many transpeople who have overcome all odds to stand up for their rights. Currently, transpeople are underrepresented in governments worldwide. There have been only two openly transsexual members of Parliament in the world, Georgina Beyer (New Zealand) and Vladimir Luxuria (Italy). While a few places in the world offer explicit protections to trans people, Canada does not. I feel it is time for Canada to again become a leader in human rights and offer explicit protections for transgender, transsexual and gender-variant members of our community. I urge you and your colleagues to be a voice for members of your constituency whose protections are at stake and support Bill C-389”.

This letter was from April Friesen.

Another constituent from Halifax, Stephanie Ehler, wrote to me and stated the following: “It's an unfortunate travesty that more hasn't been done before now for the rights of persons who are transgendered. The current situation really puts the pressure on you to do all you can to make positive steps forward and you have my support and encouragement in doing so”.

Matthew McLaughlin and Susan Gapka, two utterly tireless trans rights advocates, sent me a quick update even this morning just to let me know that two studies came out just this week in the United States showing that trans people do face discrimination despite what we may hear from opponents to this bill.

They also pointed out that the areas of federal jurisdiction covered by the bill are some of the most sensitive areas where trans people are affected and where they are more likely to be harassed: banks, air travel, immigration, customs, prisons, and the list goes on. These are really important areas that we need to address.

Matt dispelled the so-called bathroom argument pretty succinctly when he said to me, “On the bathroom scare, it's pretty hypocritical considering that this has never happened in any of the more than 100 U.S. and overseas jurisdictions with protection, but washroom harassment has happened to nearly every trans person”. That is a good point.

The letters that I have shared with MPs in the House do not even come close to the number of face-to-face contacts I have had with trans people from Halifax and their allies, who thank me for our support of this bill and share with me their stories of courage, fear, bravery, anger, terror, love, hate, pride, power, and stories about themselves or people that they love. I really believe that if every MP had the opportunity to hear the stories and look people in the eye while listening to them, they would have no choice but to support this bill.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I am pleased to contribute to the debate on Bill C-389 as presented by the member for Burnaby—Douglas.

During previous debates on the bill, some have spoken about the discrimination faced by members of the transgender communities. I am aware, and I think all members are aware, of the need to protect all Canadians from violence and discrimination. I am proud that Canada is recognized on the international stage as a country that is committed to the promotion of diversity and equality and that this protection is provided by our Constitution and laws to all Canadians.

However, recognizing this, we need to consider whether the amendments proposed by Bill C-389 are clear or whether they are necessary. I submit that they are not and, for the reasons that I will describe in the next few minutes, I will be opposing the bill.

Before I begin discussing the details of the bill, I will take a couple of moments to discuss my concerns with the vagueness of the bill as drafted.

As hon. members who have studied the bill will notice, the terms “gender identity” and “gender expression” are not defined in the bill.

When the member for Burnaby—Douglas appeared before the Standing Committee on Justice and Human Rights, on which I sit, he was asked if there was a generally accepted definition of these terms. With regard to the definition of “gender identity”, he said that there were a number of definitions but noted that the one he used more often than not was an individual's self-conception as male or female, both or neither as distinguished from one's birth assigned sex. He also quoted the definition of “gender identity” found in the Yogyakarta Principles, which he just referred to in his comments, which he said was a United Nations' document well-known in human rights circles. That document defines “gender identity“ as follows:

...each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

With regard to the definition of gender expression, the same hon. member and sponsor of the bill stated:

The definition I...use for gender expression is that gender expression refers to how a person's gender identity is communicated to others through emphasizing, de-emphasizing, or changing behaviour, dress, speech and/or mannerisms.

However, the definition of “gender identity” given in the Yogyakarta Principles includes specific reference to forms of gender expression. Why then is gender expression also used as a separate term in this bill? Is that term not superfluous? If not, then what does it mean?

I respectfully submit to all members of the House that, as a result, we are left with uncertainty and vagueness about what these concepts mean. As all members know, if undefined important terms such as “gender expression” and “gender identity” would create a lack of clarity and a real problem for the bill and for those who will be called upon to interpret the bill.

In this regard, it is instructive to look at imperative legislation in other democratic countries. In 2009, Scotland passed legislation allowing for an aggravated sentence where a crime is committed, in part, on the grounds of prejudice toward transgender identity. The term “transgender identity” is defined but the term “gender expression” is not used.

Our neighbours to the south in the United States at the federal level passed the Matthew Shepard and James Byrd, Jr. hate crimes prevention act and it uses the term “gender identity”, which is define, but does not use the separate term “gender expression”. In my view, this shows that the bill is deficient by failing to provide definitions of these integral and important terms.

I will now examine the bill's proposal to add the terms “gender identity“ and “gender expression“ to the hate propaganda provisions of the Criminal Code and the sentencing provisions found in paragraph 718.2(a)(i).

Subsection 718.2(a) of the code uses general wording as follows:

(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,--

Paragraph 718.2(a)(i) then goes on to list certain criteria deemed to be aggravating factors used to increase a penalty for a crime beyond its usual range where the crime is motivated by bias, prejudice or hate, as follows:

(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 any other similar factor,--

The words “without limiting the generality of the foregoing” and “or any other similar factor”, I submit, make it abundantly clear that factors, other than those specifically enumerated, can be considered in cases where crime is motivated by hatred, bias or prejudice. In my view, adding the terms “gender identity” and “gender expression” adds nothing to these sections and is therefore unnecessary.

I would now like to turn my focus to the amendments proposed in the bill that propose to make additions to the Canadian Human Rights Act. Some members have argued that this bill is necessary because transgender Canadians have faced discrimination in the workplace and in obtaining housing and services. However, these members downplayed the fact that under the federal Canadian Human Rights Act, transsexuals have already been protected from discrimination on the grounds of sex.

I would like to remind members of the House that both federal and provincial human rights tribunals have already protected transsexuals from discrimination in employment and in services. The Canadian Human Rights Tribunal followed the approach taken by the human rights tribunals in British Columbia, Quebec and several other provinces, and have found discrimination against transsexuals to be covered by the existing ground of sex. This interpretation has subsequently been confirmed by the courts. Again, these additions would appear to be unnecessary.

In fact, the ground of sex in anti-discrimination laws is interpreted very broadly and has evolved over the years. It is usually understood to cover discrimination complaints based not just on sex, but also on gender attributes, pregnancy, childbirth, and more recently, transsexualism.

Given this history, I would ask all hon. members to consider whether an amendment to add the terms “gender identity” to the Canada Human Rights Act is really necessary. As members can see, in the moments preceding this, I have argued that they are not, that the proposed amendments in Bill C-389, although well-intentioned, are both unclear and unnecessary, and for all of those reasons I will be opposing the bill.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

moved that Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the third time and passed.

Mr. Speaker, I am pleased to rise today to start and later finish the third reading debate on Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression). I am pleased that the bill continues to make progress here in the House.

The bill would add gender identity and gender expression to the list of prohibited grounds of discrimination in the Canadian Human Rights Act, providing explicit protection for transsexual and transgender Canadians. It would also add gender identity and gender expression to the Criminal Code sections dealing with hate speech and sentencing for crimes where hate was a motivating factor.

The bill arose from in-person consultations with members of the transgender and transsexual communities in Ottawa, Toronto and Vancouver, and with many transfolks online in communities all across Canada. It is routed in their hope of full and equal citizenship and their experience, often daily, of discrimination, prejudice, misunderstanding and violence.

It is my hope that with this bill this House and Canadian society will take a stand against transphobia and for the full equality of transCanadians.

Back on November 20, Canadians and people around the world marked Transgender Day of Remembrance. We remembered victims of transphobic murder and violence. Here in Ottawa, there was a march that started at the Ottawa police headquarters with a flag-raising ceremony supported by the Ottawa Police Service and proceeded to Parliament Hill for an historic rally for transrights and in support of Bill C-389.

I want to point out that this is not a bid for special rights but for equal rights for a very marginalized community in Canada. At earlier stages of the debate and in committee, the key concerns raised were about the need to define gender identity and gender expression and the question of redundancy.

On the matter of the definition, the Canadian Human Rights Act does not define each of the prohibited grounds of discrimination that it contains. This is intentional. It encourages living definitions, grounds that are defined by common usage, experience, jurisprudence, tribunal decisions and science. In keeping with that feature of the act, there is no definition of gender identity and gender expression in this bill. I hasten to point out that gender identity and gender expression are not new terms or new ideas. They have been in use for many years.

Also, while there have been successful human rights complaints launched by transpeople using the current law's provisions on “sex” and sometimes “disability”, we should never forget the fact that successful challenges to discrimination have been made by transfolks using current law, including an explicit reference to gender identity and gender expression, which is still important. It is important for absolute clarity. Transpeople should not have to think their way into protection using other categories originally intended to cover other groups in our society.

It is also important that a group that is marginalized in our society and that suffers significant discrimination and prejudice actually see themselves in the law, and that those who would discriminate against them know, beyond a shadow of a doubt, that their actions are not acceptable.

It is also important that the Canadian Human Rights Commission has an explicit educational mandate on issues related to the experience of transsexual and transgender Canadians.

There is a helpful document on both the issue of the definition and the need for explicit reference in law: the Yogyakarta Principles: The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.

The Yogyakarta Principles were developed by the International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations. They were adopted by a distinguished group of 29 human rights experts from 25 countries in November 2006. Included in that group of experts were: a former United Nations high commissioner for human rights, Mary Robinson; eight UN rapporteurs on human rights in specific countries or specific human rights related issues; two members of the UN human rights committee; the former chair of the UN committee on the elimination of discrimination against women; and one member of the UN committee on the rights of the child.

How did this expert panel define gender identity and gender expression? It said:

...each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

For the record, that is a very formal definition. A more informal one is that gender identity is an individual's self-conception as male or female or both or neither, as distinguished from one's birth-assigned sex. Gender expression refers to how a person's gender identity is communicated to others through emphasizing, de-emphasizing or changing behaviour, dress, speech and/or mannerism.

The Yogyakarta Principles have been used in many different settings. They have been cited favourably by courts in India and Nepal; the UN committee on economic, social and cultural rights; by the UN High Commissioner for Refugees in a guidance note; and by the UN High Commissioner for Human Rights, Navanethem Pillay, on a number of occasions.

During the 63rd session of the United Nations General Assembly in December 2008, Ms. Pillay said:

No human being should be denied their human rights simply because of their perceived sexual orientation or gender identity. No human being should be subject to discrimination, violence, criminal sanctions or abuse simply because of their perceived sexual orientation or gender identity....

This past September, Ms. Pillay said:

Also of relevance, we have the Yogyakarta Principles.... These principles, which were developed by experts, offer additional guidance on the obligations of States under existing international legal instruments and also contain useful recommendations for implementation at the national level.

The definition provided by the Yogyakarta Principles, as well as Yogyakarta Principle 2, have also been part of the United Nations universal periodic review human rights process.

The universal periodic review, or UPR, is a unique process that h involves the review of the human rights' records of all 192 UN member states once every four years. The UPR is a state-driven process under the auspices of the Human Rights Council, which provides the opportunity for each state to declare what actions it has taken to improve the human rights situations in its country and to fulfill its human rights obligations.

As part of the UPR process last year, Canada accepted a recommendation from the Netherlands to apply the Yogyakarta Principles as a guide to assist in future policy developments. Principle 2 explicitly calls on states to include gender identity within non-discrimination legislation. Bill C-389, which we are debating today, would provide Canada and our government the opportunity to fulfill the commitment made to this process.

There are also critics of the bill and I want to deal with some of the issues they have raised. Some critics base their concerns on a larger issue that questions the current framework of human rights law in Canada. I recognize that this is an issue in some quarters and some people believe we should review how we deal with human rights law in Canada. I personally do not share this concern but I do recognize that this is a serious argument to be debated.

I would say to proponents of this argument that, with great respect, this is not the time or place to make that stand. We are discussing including a group of citizens into our current human rights law framework. This is a group of citizens who, without doubt, today face serious discrimination and prejudice.

The approach of this bill is clearly in line with the current structure of human rights law. I would encourage those who take this position to make their arguments about the larger system, bring on the debate on that system, but, the meantime, we must not make transpeople wait. We must not make the equality of transCanadians the line in the sand in that other debate.

Another group of critics focus on one issue, the issue of public bathrooms. I will state clearly and emphatically that nothing in this bill would allow inappropriate conduct in public washrooms. It would not change criminal and other sanctions that exist for assault, sexual assault, pedophilia, indecency, harassment, exhibitionism or voyeurism. For example, peeping Toms or men disguised as women who enter a women's washroom to harass or assault women or girls would still be subject to criminal charges. This bill does nothing to change the sanctions against such inappropriate behaviour.

Raising this issue in the way it has been raised is purely and simply alarmist. It implies, too, that transpeople are somehow criminal by nature, an idea that is patently false.

However, this matter is hinted at, in perhaps a more subtle criticism of the bill, that it would somehow lead to “unintended consequences”.

The reality is that today we all share public washrooms with transsexual and transgender people and that we always have. As is appropriate, most of us never consider the gender of a person using a washroom when we do. We never know if we are sharing such a facility with a transperson. There is no reason for this to be or become a concern. Washrooms are intended for a specific purpose and when used for that purpose there is no problem. Jurisdictions that have implemented this change to their human rights law have seen no increase in crimes committed in public washrooms or gendered spaces as a result.

In reality, it is transpeople who face serious problems in public washrooms. They are the ones who have been assaulted, insulted and denied access. This is the actual problem and it is a serious problem that should demand our attention. Transgender and transsexual people should be able to go about the activities of daily living without fear or discrimination.

There is great support for this bill here in Canada. There is support in all parties represented here in the House, and that support is greatly appreciated. Many other support the bill as well, including: the Green Party of Canada, the City Council of Vancouver, the United Church of Canada, the Canadian Bar Association, the Canadian Professional Association for Transgender Health, human rights commissions, the Canadian Federation of Students, Egale Canada, ARC International, Amnesty International, the Rainbow Health Network, le Association des transexuels et transexuelles du Québec, Nova Scotia Rainbow Action Project, project Jer's Vision and the Trans Alliance Society. There is also very strong support in the trade union movement, including, among others, CUPEs Pink Triangle Committee, PSAC Equal Opportunities Committee and the Canadian Labour Congress itself.

I want to thank many people for their work on this project. I want to recognize four people in particular, which I realize is often problematic, but I want to thank Denise Jessica Freedman, who is a social work intern from Carleton University and works in my office. She has taught me a lot about the situation of transgender and transsexual people in Canada and, in particular, the experience of the transsexual community.

I also want to thank Matt McLauchlin and Susan Gapka, who are co-chairs of the NDPs' LGBT commission. I also want to thank my legislative assistant, Sonja van Dien, for her work.

In conclusion, I want to paraphrase a statement from the Canadian Labour Congress and an earlier work by the Canadian Auto Workers Union in its handbook called “To our allies:”, a handbook on LGBT rights and how people can work in support and solidarity of those rights:

Until we’re considered equal, and not simply ‘tolerated’.

Until our youth aren’t forced to leave home for the streets.

Until our partners are welcome at all family, social and workplace events.

Until the police are there to protect us not harass us.

Until sex trade workers are not seen as criminals.

Until our children see our families reflected in school curriculum and story books.

Until our differences and our cultures are celebrated not denied.

Until it’s safe to come out at work.

Until it’s safe to come out at school.

Until hospitals, banks, travel agents, and insurance companies see us as people not problems or profits.

Until we’re not stereotyped into certain jobs or denied others.

Until parents aren’t freaked out by having lesbian, gay, bisexual or transgender children.

Until we don’t have to justify, explain, educate and expose our private lives.

Until harassment at work stops.

Until our streets are safe for lesbian, gay, bisexual and trans people.

For our Allies 31

Until religions open their doors to our celebrations and expressions of faith.

Until we can express our gender without fear of reprisal or ridicule.

Until gender stereotyping stops and we are all free to be wholly human.

Until the cure for homophobia is discovered.

Until we can love and be loved, with joy and gay abandon.

Here in the House this week we can ensure that at least in part “until” becomes now for transgender and transsexual Canadians.

Human Rights

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am very pleased to table a petition this morning signed by 74 members of Huron-Perth Presbytery of the United Church of Canada, people associated with the presbytery and people from the local communities that they represent.

These folks are respectfully asking Parliament to pass Bill C-389, my private member's bill that would add gender identity and expression as prohibited grounds of discrimination in the Canadian Human Rights Act and to the Criminal Code provisions on hate crimes and sentencing.

These folks are very concerned for the situation of transgender and transsexual Canadians and they believe that Bill C-389 would go a considerable distance toward helping Canadian society fight discrimination against transgender and transsexual Canadians and their social exclusion.

Canadian Human Rights Act

[The Speaker, Liberal, Peter Milliken]

Pursuant to order made on Tuesday, December 7, the House will now proceed to the taking of the deferred recorded division on the motion at report stage of Bill C-389, under private members' business.

The House resumed from December 7 consideration of Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), as reported (without amendment) from the committee.

The House proceeded to the consideration of Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), as reported (without amendment) from the committee.

Trans Day of Remembrance

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, November 20 is Trans Day of Remembrance.

In communities across Canada and around the world, transsexual and transgender people will gather with their families, friends, co-workers and allies to remember the victims of transphobic violence, some of whom died as a result of physical and sexual assault.

We will renew our commitment to ending violence, discrimination and bullying against trans people and to build a society where they can enjoy full, happy, healthy, productive, safe and secure lives.

One step toward this goal is to add gender identity and expression to the list of prohibited grounds of discrimination in the Canadian Human Rights Act and to the Criminal Code's hate crime and sentencing provisions.

The House will again debate this proposal in the coming weeks when it considers Bill C-389 at third reading. Trans folks and their allies will be here on Parliament Hill tomorrow to show their support for this important bill.

New Democrats are proud to stand in solidarity with transsexual and transgender Canadians on Trans Day of Remembrance.

Justice and Human Rights

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Justice and Human Rights. In accordance with the order of reference of Tuesday, June 8, the committee has considered Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression) and agreed, on Tuesday, November 2, to report it without amendment.

[The Chair, Conservative, Ed Fast]

All right.

I want to thank our witnesses, Mr. Giokas as well as Ms. Kane, for spending their time with us this afternoon.

We are now going to move to another bill, Bill C-389.

Rather than suspending, I would ask you to focus your attention on Bill C-389, clause by clause.

As a reminder to everybody, we have scheduled a delegation from Namibia for an hour after this meeting. Those of you who can stay, please stay. It's a good opportunity to exchange information on our relative and respective justice systems.

How do you want to proceed from here? We have the bill in front of us.

Mr. Comartin.

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 33 of the Standing Committee on Justice and Human Rights. Today is Tuesday, November 2, 2010.

You have before you the agenda for today. There are a number of items we're dealing with.

First of all, we're going to begin our review of Bill S-6, An Act to amend the Criminal Code and another Act, referring to the faint hope clause.

Second, we will move to consideration of Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

You also have before you the steering report. We met earlier today, and the clerk has been so kind as to put together the report.

Those of you who were present, Mr. Comartin, Monsieur Ménard, and Mr. Murphy, I'm assuming the report reflects—

Human Rights

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am very pleased to be able to table a petition today signed by many people from greater Vancouver, who in fact signed it at this past summer's pride festival in Vancouver, in support of full and explicit human rights protection for transgender and transsexual Canadians.

They note that transsexual and transgender people are victims of discrimination, harassment and violence because of their gender identity and expression and that they are often denied employment, housing and access to trans-sensitive health care and often have difficulty obtaining identification documents because of their gender identity and expression.

The petitioners are calling on Parliament to support a private member's bill that I have tabled, Bill C-389, that would add gender identity and expression as prohibited grounds of discrimination to the Canadian Human Rights Act and would also amend the Criminal Code to include gender identity and gender expression as distinguishing characteristics and as aggravating factors to be taken into consideration at the time of sentencing and in hate crimes legislation.

[The Chair, Conservative, Ed Fast]

Yes. Bill C-16 has been referred. There is also a private member's bill, Bill C-389. We are currently dealing with Bill C-4, the amendments to the Youth Criminal Justice Act. Those are the bills at our committee. Then there is the organized crime study.

Perhaps at our next meeting you could come prepared with some ideas with regard to our business moving forward.

The other thing is that I would invite the following motion:That the Committee cover the costs of hospitality incurred from the light lunch on September 28, 2010, at 12:00 p.m. with the Departmental Committee on Justice and Legal Affairs of the National Assembly of the Republic of Kenya.You may recall that we had a meeting with them.

Canadian Human Rights Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am very pleased to have the opportunity to conclude the second reading debate on my private member's bill, Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

This bill would add gender identity and gender expression to the list of prohibited grounds of discrimination in the Canadian Human Rights Act and to the hate crimes and sentencing provisions of the Criminal Code of Canada. This would ensure full human rights protection in areas of federal jurisdiction for transsexual and transgender Canadians.

The bill had its first hour of debate on May 10 and its second hour tonight. I would like to express my appreciation to all those who participated in the debate for their thoughtful comments, and I do mean everyone. Everyone who participated in the debate did so respectfully. I know that folks in the transgender and transsexual communities appreciate the participation of all members who chose to speak, just as they appreciate the 12 seconders of the bill.

Two concerns were raised in the debate that I would like to address.

The first was that the terms “gender identity” and “gender expression” were not defined in the bill. This is true, but it is also entirely consistent with the Canadian Human Rights Act which does not define other listed prohibited grounds of discrimination. That is no accident. It was deliberate. These terms are widely used here in Canada and around the world, and Canada, including the current government, has supported international agreements and statements where they are used. They are accepted terms, defined both in practice and in jurisprudence.

The second concern was that explicit coverage in the Canadian Human Rights Act and in the hate crimes and sentencing provisions of the Criminal Code was redundant, given the fact that decisions had already been made supporting the full human rights of transsexuals and transgender Canadians and the fact that the provisions of the Criminal Code were open-ended. This, too, is true, but a strong argument can be made for the importance of adding to the existing list.

Those who are subject to discrimination and prejudice in our society need to see themselves clearly in our laws. This confirms their place in our society. It confirms that they are valued members of our society. Without explicit recognition, the lives and struggles of transgender and transsexual people remain invisible and their issues remain unaddressed.

Accessing these protections through a convoluted process using other possibly related categories, usually the categories of sex and disability, diminishes the protection and limits our understanding of the causes and effects of the particular discrimination. A right that has to be explained is not a particularly effective right.

Clarity is also helpful in terms of public education. The clearer the law, the easier it is to explain who is protected and why.

Both these issues could be fully explored at the standing committee should the bill pass second reading. Needless to say that while I believe they are reasonable issues to raise during this first round of debate, I know that they would be completely and satisfactorily answered in any study of the bill by the standing committee, and I look forward to that opportunity.

This has been a historic debate. For the first time, this House has considered the situation of transsexual and transgender Canadians, the prejudice and discrimination and violence they face as they live their lives, and one of the most important remedies to those circumstances. There can be no doubt that trans Canadians face significant challenges and that they do not yet enjoy full equality in our society. Progress is being made. Some jurisdictions have acted to explicitly protect the human rights of trans Canadians. Some employers have acted to prevent discrimination. Some landlords, some health care providers, many unions, institutions, organizations and religious groups have acted. Many families have come to know and love their trans children, siblings, and parents in ways they would never have imagined.

However, there is more to be done. This bill would ensure full and explicit human rights protection in all areas of federal jurisdiction.

A word to members of the transgender and transsexual community: no matter what ultimately happens with this bill, they should know that there are many in this place and thousands--no, millions--across Canada who love them and know them as they are, who recognize their experience, their gifts and their full humanity. We stand in solidarity with them until our goals of justice and equality are achieved.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I am pleased to speak to Bill C-389 presented by the member for Burnaby—Douglas. I know he has worked on this bill since 2004, for six long years, and this is the first time it has been debated in the House. I have listened to some very excellent speeches on the bill. We are in the second hour of debate.

Bill C-389 would add gender identity and gender expression as prohibited grounds of discrimination in the Canadian Human Rights Act and sections of the Criminal Code dealing with hate propaganda and sentencing for hate crimes. We are following up on a recommendation made as early as 2000 by the Canadian Human Rights Act Review Panel.

The bill would help protect transsexual, transgender and gender nonconformist people in Canada from the very severe discrimination they face in numerous aspects of life such as discrimination in employment, a staggering unemployment rate, housing, obtaining government and social services, including health care, official identification with consequences for banking, education and other services, business and other areas, as well as incitement to hatred, assault, sexual assault and murder.

Various studies have quoted in detail the discrimination by which trans people are subjected. Currently the Northwest Territories is the only legislature in Canada to have passed such a measure, while other cities of Toronto, Ottawa and Vancouver offer certain protections.

Although some provincial human rights commissions have found that transsexuals are already protected under grounds such as section disability, it leaves the issue invisible and it may not cover everyone who is discriminated against because of the gender identity or expression. Explicitly prohibiting discrimination on both grounds, gender identity and gender expression, will ensure a broad coverage of people who are discriminated against due to their nonconformity with social ideas of gender. It would also conform to Canada's international statements on the issue and would follow the lead of more than 100 U.S. jurisdictions that offer such protection.

In 1986 in Manitoba, the attorney general of the day, Roland Penner, attempted to introduce initially to the NDP government caucus of which there were 30 of us at the time, and it was a majority government by only one or two members, a bill to ban discrimination based on sexual orientation in the Human Rights Code. I am sure it was a first in Canada. It was a very traumatic experience for a lot of people. After several ill-fated attempts in just getting it accepted and through the caucus, he was able to convince the government caucus to proceed, with the aggressive support of four of us, one being the chairman, Mr. Steve Ashton, who is the father of our current Churchill MP and is still an MLA and cabinet minister in Manitoba, the current city councillor, Harvey Smith, who was a former MLA, Marty Dolin, who was a very dynamic and no-nonsense MLA and strong advocate for social change, and myself as well.

We had the support in those days of the Liberal leader, who had a caucus of herself, and she was a very strong advocate. In spite of my differences with her over the years, she does a great job in the Senate. She is one of the more active senators and I really appreciate the work she does there.

However, we encountered very strong opposition from the Conservative opposition of the day. In the provincial legislature it is a little different. The committee structure is different from Parliament's, where pretty much everyone who wants to appear at committee gets their 10 minutes to present. While we had a number of people present in favour of the legislation, we had hundreds of people being brought in by different church organizations. I recall the member for Laval's excellent speech earlier today. Several church groups organized and brought in hundreds of people. We would sit there until midnight, night after night, listening to these presentations, and I remember it very well.

We had some difficulties, even within our own caucus, convincing people that this legislation was not there to promote any type of lifestyle. We had to convince people that we were simply bringing in a human right, that we were including this measure in the Human Rights Act and that people were not allowed to be discriminated against in terms of employment, finding an apartment and other areas.

The opposition, however, became very nervous about all of this and suggested that somehow the government would, at the end of the day, be promoting. Well, the world did not come to an end because of what we did in 1986. If anything, more jurisdictions adopted what we did then.

After six and a half years in government as premier of Manitoba, I believe Howard Pawley, as the premier today, will tell us that what he did in terms of including sexual orientation in the human rights code of Manitoba was one of his proudest achievements of his six and a half years. I do not think he would have thought of it and said that at the time but, as time went by, he recognized that as a milestone.

I would say that even the Conservatives in the Manitoba legislature today would look back, I believe, with some embarrassment about how they responded and acted at that time.

Doing the right thing is often difficult but, when it comes to human rights, they are fundamental in a democratic society. We cannot take any shortcuts when it comes to human rights.

I expect that my email machine will be on overdrive tomorrow, and that is to be expected. There have been a lot of big changes in society since the 1960s and I think the member for Laval captured it very well when she described her situation in the 1960s. I can relate to that as well, as I think many people can. For the benefit of society, things have changed. There are more open-minded people today than there were in the 1960s. I think of lot of it has to do with the educational process. When people have issues explained to them and when they understand the issues better, they will be more accepting.

The fact is that the world did not come crashing down because of what we did in 1986. There are many other jurisdictions that are dealing with issues like this.

I want to take a moment to recognize two trailblazers, who the member for Burnaby—Douglas knows as well, Mr. Chris Vogel and Mr. Richard North from Winnipeg. I remember meeting Chris Vogel when I was a student activist back in 1971 at the University of Manitoba. Chris Vogel was active in organizing gays for equality at the University of Manitoba.

Many years before gay marriage even became an issue in Canada, Chris Vogel and Richard North were married. I think it was probably the first gay marriage in North America. I did not want to forget to mention Chris Vogel and Richard North before my time ran out.

[Daniel Petit, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to be able to participate in the debate about the bill we are discussing today, Bill C-389, which was introduced by the hon. member for Burnaby—Douglas.

Before I begin, I would like to remind the House that our government is proud to uphold the principles of respect, diversity and equality that are expressed in Canadian laws. Our government also believes that all Canadians should be protected from crime in our country, as is demonstrated by our justice agenda.

After much thought and careful examination, it seems obvious to me that the amendments proposed in this bill are useless and unclear. That is why I will be voting against this bill, for legal reasons that I will now explain.

I would first like to talk about the uselessness of this bill. During the first hour of debate on this bill, some members stated that transgender Canadians have specific problems related to employment and in the lodging and services sectors. However, these members played down the fact that transsexuals are already protected against discrimination based on sex under the Canada Human Rights Act, a federal law.

As hon. members no doubt already know, federal and provincial human rights tribunals already protect transsexuals against discrimination in employment and services.

The validity of this protection against any discrimination on the prohibited ground of sex—or gender—has been upheld by the courts. But even though transsexuals are already protected against discrimination by Canada's tribunals and courts of law, that is not enough for the member for Burnaby—Douglas.

He is insisting that we include transgender individuals explicitly in the anti-discrimination legislation and the Criminal Code. As he said in the first hour of debate, transgender Canadians cannot feel part of society if they are not protected by human rights legislation. In fact, they should say they are protected, because the courts have upheld the validity of discrimination complaints filed by transsexuals.

The member is proposing to amend legislation that currently protects transsexuals against discrimination. What he really seems to be proposing is therefore rather symbolic.

On what do we base our decision to symbolically add one minority group instead of another?

This bill proposes changes to the law, not just symbolic debate or measures. And changes to the law have real, not symbolic, repercussions.

For example, guaranteeing additional protection for one minority group can have unwanted social and legal consequences for another group. We must know the exact repercussions of legislative amendments and we were not given this information by the member who sponsored the bill.

I would now like to raise a second point: the amendments proposed by Bill C-389 are vague and undefined. The pertinent article of the Canadian Human Rights Act reads as follows:

For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

The bill would add to this long list gender identity and gender expression. It is important to note that the term “expression” is nowhere to be found on this list. The law protects religion, which also includes religious expression.

In the first hour of this debate, the hon. member for Don Valley West stated the following, in response to the Parliamentary Secretary for Status of Women, who noted that the bill was not specific enough.

Basically, he was saying that maybe we do not have to know all the answers. Maybe we do not have to have all the definitions nailed down. If we want to talk about gender identity and expand it to gender expression, perhaps our leadership would be welcomed around the world.

However, perhaps significant, long-standing, strategic reasons exist for carefully examining the exact meaning of these legislative changes. Maybe other countries have significant strategic reasons for not including “gender expression” as a separate concept in their provisions on discrimination or hate propaganda.

It is a well-known fact that clarity is crucial in drafting legislation. Canadian legislative drafters primarily refer to Ruth Sullivan's book entitled Sullivan and Driedger on the Construction of Statutes. It indicates that the first obligation of a legislative drafter is to be precise; the second is to be clear; the third is to be concise. There is no obligation to be inspiring or amusing.

However, when we look at the changes proposed in Bill C-389, none of these terms are defined. As a result, we cannot be sure of the meaning of “gender expression” and how it might be interpreted by the Canadian Human Rights Tribunal and the courts.

As I said at the beginning of my speech, I know how important it is to protect all Canadians from discrimination and hate crimes. I am proud that Canada is recognized internationally as a country that cares deeply about respect for diversity and equality. Those principles are part of our Constitution and our laws, both provincial and federal.

Bearing that in mind, members of the House must ask themselves whether the amendments in Bill C-389 are clear and/or necessary. The proposed amendments may seem simple, but the legal consequences may be complex and unpredictable.

I will therefore vote against this bill for the legal reasons I outlined earlier.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, I am very proud to rise in the House today to speak in support of Bill C-389. I would like to thank the member for Burnaby—Douglas who has been an outstanding critic for gay, lesbian, bisexual, transgender and transsexual issues for our party and in fact for all Canadians.

This is a very important bill that is before us today. Sitting here in the House as we come to the close of a very busy day where we just passed that monster budget bill, it is very good to hear some of the speeches that are taking place. I especially want to thank my colleague, the member for Laval. I know that she always speaks from her heart about the rights and dignity that all people have. It was good to hear the speech that came from the Liberal member earlier as well.

I note that the bill was seconded by 12 other members of Parliament from different parties. That is really significant. It tells us something about this bill that deals with fundamental human rights for transgender and transsexual people who have been denied rights for a very long time. When we see members across the floor supporting the bill and speaking from a personal point of view, it tells us this is something that is very powerful. We hear the stories and messages, whether they are from our own lives, or from the lives of people we know, just as we heard from the member for Laval about her own personal experience of what it means to face differences and how it is dealt with by the church, or religion, or by the system itself and how that impacts on people's lives in sometimes a very hurtful way and sometimes even in a violent way.

I do feel very proud that we have this bill in the House and the work that has been done by the member for Burnaby—Douglas. He has held consultations across the country. He has brought this issue forward not only in our own caucus but in the queer community overall, as well as in the broader Canadian society. That is one of the good things we can do as members of Parliament. Often we are told that we do not count, that we are not part of the government, that we are not this, that we are not that. This bill is a reflection of what an individual can do in building those kinds of alliances and expression of understanding and education to actually move something like this forward and to say that there is a problem in that the Canadian Human Rights Act does not yet contain a prohibited grounds of discrimination that would protect transgender and transsexual members of our society. The bill is very important.

I have had the honour to speak recently at a couple of events. One was at a high school here in Ottawa, for Pride Day just a few weeks ago as part of Jer's vision. It was really good to go to a local high school in Ottawa to speak to all of the grade 10 students about pride issues, about what it means to be gay or lesbian, or transgender, or transsexual, or bisexual. I have to say that a lot has changed.

When I spoke to those students in the high school I could feel that within that community there was a lot of understanding. People were more open about issues and willing to understand how people are different. At the same time there was a recognition that bullying still takes place. There are still people who are targeted. Certainly the research that is being done in Canada shows us that transgendered and transsexual people are among some of the most people at risk in our society. They face discrimination, whether it is in the workplace, whether it is in housing, whether it is in society generally. Not only are they vulnerable, but they are most vulnerable to face violence.

While on the one hand I think we can all say that we have come a long way and that rights have been enshrined and that we have made advances legally, politically and culturally, we also have to acknowledge that homophobia still exists, that discrimination still exists and that the group that is most vulnerable to this is certainly transsexuals and transgendered people.

I had a second occasion recently in my home community in Vancouver to attend an event that was organized by the Pride Education Network. It conducts a program in schools called Out in Schools. It was wonderful to see students come to a local movie theatre to watch a film that has just been produced in Vancouver called Beyond Gay--The Politics of Pride. This is a marvellous film that takes us all around the world.

A lot of members in this House have attended pride parades. The one in Toronto is coming up in July and we have ours in Vancouver in August. This film is so remarkable because it gives a history of pride parades around the world and what is taking place. Hundreds of thousands of people come out in Toronto, Vancouver and Ottawa to celebrate pride and diversity. We see this in the United States as well.

This movie takes us through not only the history of pride festivals in Canada but it also focuses on places around the world. I will mention a couple of places. In Moscow, the pride parade has been banned and organizers have faced incredible harassment. The mayor of Moscow could be seen in the film making the most outrageous, hateful comments against gay and lesbian and trans people. In Poland, armed police had to make a corridor for people who were celebrating pride to conduct their march and rally.

I was pleased to attend this movie and the discussion that followed, particularly with young people. It gave people an understanding not only of the incredible changes that have taken place in our society, but the fact that great challenges still remain.

Here in Canada we believe that we are very advanced, and we are at many levels. As was noted earlier, the Canadian Human Rights Act provides protection based on sexual orientation. Our former colleague, Svend Robinson, a member of Parliament for over 25 years, did outstanding pioneering work on this issue. His private member's bill was brought into law to ensure that sexual orientation was protected under the Criminal Code as a hate crime.

A lot of work has been done. Those of us who have been working on this issue and are aware of what is going on in the community know that the most significant protection that has not happened is for transgendered and transsexual members of our communities.

Back in 2004 two students from Carleton University, Langdon and Boodram, undertook a survey to determine what is taking place in the trans community. Not surprisingly, they found significant levels of discrimination in housing, employment services, including unwelcome comments at work, unwelcome comments while living in accommodation, discrimination in bars, restaurants, schools, universities and colleges. Other surveys have taken place since then.

There is no question that these protections are needed. This bill needs to be brought into law. Then we need to raise the bar on education and awareness if we truly believe that we are a diverse society and that all people have the right to protection, rights and opportunities.

I hope that the bill will pass second reading and go to committee. It is important that we hear from witnesses firsthand because no trans people have spoken in the House. It is important that they be heard at committee so that their experience can be brought forward and that this bill can be passed into law.

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, it gives me great pleasure to rise in the House to debate Bill C-389 introduced by my colleague from Burnaby—Douglas. This is a bill I am very glad to see.

When I talk about a bill, I usually refer to situations in my own life to illustrate what I am saying. Once again, I want to remind hon. members that if you have never walked a mile in the shoes of someone who is discriminated against, if you have never done what someone has to do to assert themselves, be seen as a whole person and enjoy the same rights as everyone around them, if you have never done that, then it is hard to understand the despair and the problems experienced by people who live with a sword of Damocles constantly hanging over their heads, the sword of Damocles that is discrimination. This bill does not refer to racial discrimination, but that is what I am going to talk about, because that is what I know.

At the age of 17, I fell madly in love with a black African who descended from people in the Belgian Congo. It was 1967, and when I fell madly in love with him, I did not realize just how much I was going to learn about the problems people can have when they do not have the same physical appearance or the same culture as those around them.

When we wanted to get married in 1970, the parish priest refused to marry us because he said our children would be mulatto, and he did not want any mulatto children in his parish. My father spoke out against the priest and insisted that the church allow me to be married in church. The curate agreed to marry us.

But I had already seen that people can be discriminated against even if they have done nothing wrong. My husband had done nothing wrong, but he was born black, and others held that against him. He tried so hard to find work. On the phone, he sounded like a Quebecker, and was often told that the job was available, but once he showed up, the job was already taken. Whenever I went looking for an apartment for the two of us, there was always a vacancy when I called to say I was coming to see the place, but when I showed up with my husband, the apartment was always rented.

Then, what the priest feared came to pass. I had my first child, a beautiful mulatto boy. We tried to raise him in the knowledge that we loved him and that nothing in the world could ever hurt him. But one day, when he was four, he was taking a bath, and he asked me why the kids he played with called him a Negro. He said that he was not a Negro. I did not know what to tell him. It broke my heart. I did not know how to comfort my child and make him understand just how stupid and mean people can be, how they just do not make sense sometimes. I did not know how to help him understand that. But I understood. I understood that anytime one person discriminates against another, anytime people find a way to discriminate against others, they do irreparable damage.

The bill that my colleague introduced will put an end to a type of discrimination that has been around for a very long time. We do not choose to be born a man or a woman. We do not ask to have a different gender identity than the one we are born with. We do not ask for that. We have no choice. We also do not ask for our gender expression to be different than anyone else's. Children are children, and live like children.

But as children, they may realize that they are not in the right body, that they do not have the right gender identity. A boy might realize that he should have been a girl, and a girl might realize that she should have been a boy.

Unfortunately, until now, very few people have been aware of this reality or realized how much they are harming their child when they do not want a boy to dress up as a girl, or a girl to play with a boy's toys.

Our society does not view that as normal, but what could be purer, more natural and more whole than a child? If their sexual identity seems natural to them, then why should we, as adults, not accept that? If children instinctively understand who they are and who they want to be for the rest of their lives, why is it so difficult for adults like us to understand and accept that? Why is it so hard for us to give people an opportunity to be heard when they report discrimination, hate propaganda or violence because they have chosen to express their sexual identity? I do not know.

Maybe some of us think that we have all of the answers, that we know better because we make the laws. That is what we do here in the House. However, before we make any decisions about people's rights, we should think long and hard. We may well be putting the lives of our own children into the hands of people who will discriminate against them. In many cases, such decisions will affect people we know but who have kept their true selves hidden because there is still shame associated with expressing one's sexual identity openly.

Would people we do not know but who seem normal and likable suddenly be different if they chose to express their sexual identity? Would they no longer have the same morals and values as before? Not at all.

If we are honest with ourselves, we have to admit that our understanding of all of the dimensions of human beings is medieval. I am glad that my colleague introduced this bill, which will put an end to years of injustice.

Before coming here today, I received a message from Brian Rushfeld urging me not to vote for this bill because it would have terrible consequences and result in abnormal and abominable sexual activities. What is so abominable about a man who identifies as a woman or a woman who identifies as a man? Can anyone tell me? I see nothing wrong with that at all. Mr. Rushfeld's concerns are exaggerated, and it will be my pleasure to vote alongside my Bloc Québécois colleagues in favour of this bill.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, in this House and across this country, we are privileged to be able to express ourselves freely and to live to our fullest potential as citizens of Canada. It is important, however, that we remain forever vigilant in our work to ensure that all Canadians enjoy the human rights which our citizenship rightly bestows.

I am reminded of a statement by Nobel prize recipient Aung San Suu Kyi, who said, “Please use your freedom to promote ours”. These are simple words, but they are invested with tremendous meaning and substance. Several of my colleagues have noted during these debates that this bill, dealing with equality and human rights protection for transgender and transsexual Canadians, lacks the benefit of first-hand experience. This is true. There are indeed no transgender or transsexual people currently serving as members of Parliament.

However, in keeping with the spirit of the words of Aung San Suu Kyi, we are given the unique opportunity and privilege to promote the freedom of others as outlined in the provisions of this bill. Human rights are precisely as the term states. What the bill is addressing is a right, not a privilege. Canadians are, by virtue of our democratic traditions and our commitment to equality, protected with respect to our most basic human rights and freedoms.

When contemplating the provisions of this bill, it can be reasonably surmised that what has been proposed should really not require debate. In essence, this bill ensures that transgender and transsexual Canadians are afforded protection under the law with respect to their basic human rights in a manner consistent with that which is enjoyed by every other Canadian. It is simply a reaffirmation that all Canadians share the same rights and opportunities, and that these require equal protection under the law.

Indeed, it is remarkable, if one were to think about it, that in this day and age we continue to find ourselves in a position of having to debate the need to include a specific group under the umbrella of human rights law as well as protection under the Criminal Code. One cannot help but reflect on similar debates over the past several hundred years, when people like those who are transgender or transsexual were the subjects of discriminatory practice and indeed victims of hate crimes.

Like parliamentarians of years past, we are called in our time to embrace and support the inclusion of transgender and transsexual Canadians in the most fundamental of our laws, those which protect the most basic human rights and which also offer protection from criminal acts of hate and discrimination.

In debates of this kind, we are often tempted to resort to statistical data to make our case. We may, at times, focus too much on these numbers. Indeed, several members have referred to statistics when speaking about the actual number of Canadians who are transgender or transsexual and living in Canada.

I believe that while it is important to reflect upon the statistics, we must also be vigilant when doing so. Human rights do not need to be measured in numbers simply because they are universal in character. As someone who has held a long and abiding commitment to human rights issues, I recognize that there is little currency to be found in debating numbers. The reality is simply this. All human beings, regardless of their numbers, are invested with basic human rights, freedoms and protection under the law, which are inalienable and non-negotiable.

I recognize that there are those who may argue about the need to amend our laws to specifically protect transgender and transsexual Canadians. The reality is that there is a clear and pressing requirement for such action. There is ample evidence, both statistically and anecdotal, that confirms that transgender and transsexual Canadians experience disproportionate discrimination and even violence based on who they are and how they choose to live their lives. This is unacceptable.

The bill we are debating today may not eliminate these realities, but it will most certainly offer greater protection to those who are victims of such discrimination and lead to that day when transgender and transsexual Canadians will enjoy the freedom and security that they so rightly deserve.

It is important to remember that positive action in matters such as this is our responsibility as parliamentarians. For example, it was not that long ago that gays and lesbians in this country faced similar challenges to those we are debating today. Fortunately, many of us in the House are too young to remember the more violent and reprehensible violations of human rights experienced by gays and lesbians in Canada, but they were indeed troubling and serious acts of injustice.

Mr. Speaker, 1965 is not really that long ago. Yet, in that year a Canadian gay man was declared a dangerous offender simply because of his sexual orientation and the belief that was presented to a Canadian court that he was likely to continue to be sexually active. This man was not released from prison until 1971.

I make note of this incident to highlight the need for us to be proactive in protecting human rights for transgender and transsexual Canadians. Following the imprisonment of this man, Bill C-167, an omnibus bill, was introduced in 1967 by the then justice minister Pierre Elliott Trudeau, which decriminalized homosexuality and was the foundation upon which great strides were made for gays and lesbians in this country.

Indeed, under two more Liberal Prime Ministers, Jean Chrétien and Paul Martin, gays and lesbians were allowed to marry, which represented another enormous step forward for human rights in Canada. Today we are called to be bold and progressive and, indeed, as courageous as Pierre Trudeau or Prime Ministers Chrétien and Martin. Their courage demonstrated that it is incumbent upon parliamentarians to take proactive action to ensure that the human rights of all Canadians are fully protected.

Historically, it has taken too long to address all the challenges to human rights and freedoms that have materialized over the past many years. Many of them have been based on race, religion or sexual orientation, but all have experienced the day when as a society we determined that action had to be taken.

Today my colleague from Burnaby—Douglas is calling upon our fellow parliamentarians to do not only what is required of us but what should be expected. We have often heard that a true measure of a society is the manner in which it treats those within it that are most vulnerable to abuse or discrimination.

Clearly, as we have heard during the course of this debate, transgender and transsexual Canadians have more than their share of discrimination, violence and unacceptable alienation. Bill C-389 is not designed to confer on transgender and transsexual Canadians anything other than that which they are entitled.

We as Canadians and parliamentarians are being called by history and generations of Canadians yet to come to do that which is fair and just: ensure that all Canadians are treated equally and respectfully under the laws and traditions of our country. It is for this reason that I encourage all of my fellow members of the House to join with our colleague from Burnaby—Douglas and vote in favour of Bill C-389.

The House resumed from May 10 consideration of the motion that Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the second time and referred to a committee.

[Lois Brown, Conservative, Newmarket—Aurora, ON]

Mr. Speaker, I am happy to have this opportunity to contribute to the debate on Bill C-389, presented by the hon. member for Burnaby—Douglas, which is before us today.

Let me begin by stating that this government is deeply committed to upholding the principles of respect for diversity and equality that are enshrined in Canadian law and are part of the very fabric of our nation.

Our government believes, as demonstrated by our tough-on-crime agenda, that all law-abiding Canadians should be protected from crime in this country. However Bill C-389, which seeks to protect people from various harms based on their gender identity and gender expression, contains provisions that raise concerns as to their technical interpretation and legal necessity.

Let me now proceed to the substance of this bill. This bill proposes amendments to the Canadian Human Rights Act and the Criminal Code. Specifically, it proposes that the undefined terms “gender identity” and “gender expression” may be added to the definition of “identifiable group” in the crimes of hate propaganda, to the deemed list of aggravating factors that can be used to increase the sentence for any crime where motivated by bias, hatred or prejudice and to the grounds of discrimination found in the Canadian Human Rights Act.

In order to inform members further on this issue, I wish to raise certain aspects of this bill that I think merit consideration by all members. While the bill proposes adding gender identity and gender expression, it does not define these terms. This leads to the question of what these terms mean. The bill does not say.

I am not aware of any other country in the world that has used the term “gender expression” by itself in any of its criminal or anti-discrimination laws. I will point out at least three examples: Scotland has hate crime legislation that uses the term “transgender identity”, which is defined; federal U.S. hate crime legislation uses the term “gender identity”, which is defined; and the State of Hawaii, in its hate crimes legislation, uses the term “gender identity or expression”, which is defined in one definition, not two separate ones.

In considering this bill, I believe it also useful to know to what extent our current laws already protect transgender persons so that we may consider to what extent this proposed bill is necessary. In this regard, the Canadian Human Rights Act has already been successfully used to protect transsexuals from discrimination on the grounds of sex.

Both federal and provincial human rights tribunals have already protected transsexuals from discrimination in employment and services, using the current human rights acts. This protection of transsexuals from discrimination using the existing prohibited ground of sex has been upheld by the courts.

I next wish to address the bill's proposal to amend the sentencing provision of the Criminal Code that the bill proposes to amend. Section 718.2(a)(i) of the code begins with the general wording:

(a) a sentence should be increased...to account for any relevant aggravating...circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing...

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I am honoured to rise to speak to Bill C-389 today. I am so proud to have seconded the bill that was introduced by my colleague the member for Burnaby—Douglas, who is an incredible advocate for trans rights and human rights for Canadians.

The bill would bring Canada closer to providing the respect owed and the recognition of rights owed to the transgendered community by adding the terms gender identity and gender expression to the Canadian Human Rights Act as prohibited grounds of discrimination.

Human rights continue to be contentious in the country. Equality for all is somehow seen as a threat to the few and compassion is sometimes a very scarce commodity. We need to reframe the debate around human rights in Canada. Words like tolerance and accommodation, which imply some sort of undesired obligation, need to be replaced with words like respect and dignity.

In short, we need to be kinder to each other. We need to respect differences. Equality should be fostered through social, economic and environmental justice. Our human rights codes should reflect our pursuit of justice and we have the opportunity in this parliamentary session to do just that.

Why would we add these terms as prohibited grounds for discrimination? Gender identity is a person's innate feeling of being male, female, both genders, neither or in between. It is not a reference to people's biological sex or their sexual orientation. Identity is something to be respected and honoured and gender identity is no different. Gender expression is the expression of that inner identity. It is the freedom to be, plain and simple, one's self.

These terms, though they seem very simple on their face, are difficult for some people to grasp. Inclusion of these terms aims to address issues of sexism in the country, issues of homophobia and of transgressing traditional teachings.

It is telling that this is the first time that legislation of this kind has been debated in the House of Commons. There has not been equal progress toward equality for the trans community as there has been for other marginalized groups.

Fear and prejudice has delayed this human rights journey and delay has meant that trans people have been discriminated against. They have been subject to discrimination. They have been subject to prejudice. They have been subject to harassment and violence every day.

Trans people are victims of violent acts, such as assault and murder, for no justifiable reason. They are regularly denied things we all take for granted, like access to health care and housing, the ability to obtain identification documents, access to washrooms and other gendered spaces and the ability to acquire and maintain employment.

I have a friend who asked me to write a letter explaining the case law on the use of washrooms for transgendered people. She carries this letter around in her purse so she can pull it out and use it whenever she needs. Imagine the indignity of having to have a letter in one's purse or wallet explaining that the use of the washroom is allowed. Imagine the indignity of being challenged to use a washroom and having to dig out a letter that has some official law firm logo on the top so someone will take him or her seriously and recognize that the individual does have a right to use the gendered space.

All of this can be addressed through human rights protections and a concerted effort to eradicate and shed light on the lives and struggles of the trans community.

On March 30, 2000, the Ontario Human Rights Commission published a policy on discrimination and harassment because of gender identity, noting, “There are, arguably, few groups in our society today who are as disadvantaged and disenfranchised as transgendered community. Transphobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues”.

This is a very powerful statement about what goes to the very core of how we choose to treat and respect one another. Trans people are members of our families and our communities. There is no them here, only us.

I use to do education workshops on trans rights when I worked and volunteered with the Nova Scotia Rainbow Action Project. Gender expression and gender identity are not included in the human rights act in Nova Scotia. Therefore, we worked with the Nova Scotia Human Rights Commission to help it understand the day-to-day realities faced by transgendered people in Nova Scotia, the discrimination and the hate they experienced. At the end of one of these workshops, the Nova Scotia Human Rights Commission assured us that it would “fit” trans discrimination under sex, even though it technically was not sex discrimination.

This is exactly the kind of thing trans people face every day. They do not quite fit here or there, but somehow they are expected to cope and to be happy with filling the space of the cracks. Now is the opportunity to right one of those wrongs. It is a small legislative change that would have tremendous impact on the dignity of trans people in Canada.

The addition of gender identity and gender expression as prohibited grounds of discrimination in the Canadian Human Rights Act is, without question, a very positive first step to achieving equality for the trans community. Make no mistake. This is just an initial step in a continuing journey, but it does lay the groundwork for the work that remains. Hopefully, by entrenching the rights of the trans community, it will act as a catalyst for change as well as a protection and recourse as the trans community navigates what will not likely be an obstacle-free path, even with the inclusion of these terms in our human rights legislation.

As we move forward, we should ask ourselves what equality for the trans community would look like. Equality would mean that gender reassignment procedures would be reimbursed by provincial health insurance everywhere in Canada. There would be policies implemented to combat discrimination and exclusion faced by transgendered persons in the labour market, education and health care.

It would include education and training programs, as well as awareness raising campaigns. There would be better training to health service professionals, including specialists and general practitioners, with regard to the rights and needs of transgendered persons and the requirement to respect their dignity. Trans voices would be represented in government, in schools, in the media, on equality bodies and in national human rights structures.

With the bill, Canada can lead by example. We can demonstrate the inclusiveness of our communities and the strength we find in breaking down barriers and in insisting that discrimination become something of the past. I plan to vote in favour of the inclusion of trans rights in the Canadian Human Rights Act, as well as its inclusion on the hate crimes list in the Criminal Code of Canada. I encourage every member of the House to join me in entrenching protections for gender identity and gender expression.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Speaker, I am pleased to rise here today to speak to Bill C-389 introduced by the hon. member for Burnaby—Douglas. I have worked with him on a number of occasions and I am very pleased that our paths are crossing again. I also very much look forward to the debates in the House of Commons on this matter. Indeed, a specific group of individuals has been put at a disadvantage simply because the existing Canadian legislation does not address this issue.

I thank the member for introducing this bill to modify the Canadian Human Rights Act and the Criminal Code. He is proposing changes to the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination.

The bill would also amend the Criminal Code to include gender identity and gender expression on the list of distinguishing characteristics in sections 318 and 319, the provisions that identify advocating genocide and public incitement of hatred as crimes.

Lastly, it would add gender identity and gender expression to the Criminal Code as objects of prejudice constituting aggravating factors in the commission of a crime.

The Quebec identity is based on a certain number of principles and values that the Bloc Québécois has attempted to identify. They include the equality of men and women, French as the official language and the common public language, democracy, fundamental rights, secularism, pluralism, collective solidarity, respect for heritage, respect for the historical rights of the anglophone community and respect for the rights of aboriginal peoples.

Like the Quebec nation, which it represents in the House, the Bloc Québécois is open to the diversity of gender and anyone who wishes to embrace its platform and its values is welcomed with open arms, no matter their sexual orientation or gender identity.

The Bloc Québécois supports the principle of Bill C-389. Other jurisdictions in Canada already have policies on gender diversity. The bill fosters the promotion of and respect for human rights by prohibiting any form of discrimination based on gender identity and gender expression.

Therefore, it is appropriate to support the principle of this bill because gender identity and expression will be protected under the Human Rights Act. It will no longer be necessary to refer to ambiguous interpretations of the term “sex” to establish that all transgender people are protected by the law.

Public incitement of hatred targeting gender identity or expression will be recognized by the Criminal Code.

Does this law address a problem? That is what members will attempt to explain today. Discrimination and harassment of transgender people can take different forms. For example, a transsexual woman's right to be searched by a female police officer may be breached.

In 2009-10, a few rare cases of discrimination or harassment based on gender identity were picked up by the press in Quebec and the provinces. In October 2009, a transsexual teacher was fired and filed a complaint against the Greater Saint-Albert Catholic School Board in Edmonton. Jan Buterman alleged that, after informing his former employer that he was transitioning to become a man, he received a letter advising him that he could no longer be a supply teacher.

It is difficult to estimate how many people are victims of such discrimination in Quebec annually. However, the Commission des droits de la personne et des droits de la jeunesse noted the following in May 2009:

Sexual minority individuals and families with same-sex parents are not receiving services adapted to their situation because of heterosexist attitudes, which are often subconscious, because of continuing homophobic prejudices and behaviours, especially within institutions, and because of service providers' silence on the issue of sexual diversity.

The Commission des droits de la personne du Québec website provides more detail. When the commission refers to sexual minorities it means lesbian, gay, bisexual, transsexual and transgender individuals. In its report the Commission recommended a national policy to combat homophobia that takes into consideration the realities of sexual minorities— lesbians, gays, bisexuals, transsexuals and transgender people—and respects their differences.

In the United States, where the Human Rights Campaign organization addresses cases of discrimination involving sexual identity, it is estimated that one homicide in 1,000 is a hate crime against a transgender person.

In closing, even though the bill does not concern a daily problem, it is nonetheless worthy of consideration. In Quebec alone, an estimated 3,000 people have changed their sexual identity and that number does not include all the transgender people who have not undergone a sex change operation.

These people, who are frequently victims of discrimination at the workplace, in the healthcare system, when looking for housing, and so on, would benefit directly from guaranteed protection under the Canadian Human Rights Act and the Criminal Code.

The Commission des droits de la personne et des droits de la jeunesse du Québec website provides clarification on what is protected in Quebec. The declaration of rights and freedoms in the Québec Charter of Human Rights and Freedoms does not specifically mention sexual expression and identity. It states:

Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Nevertheless, Quebec's Commission des droits de la personne et de la jeunesse clearly indicated that discrimination on the basis of “sex” includes the female, male, and transsexual genders.

Furthermore, the Quebec Human Rights Tribunal—which examines a claim once the Commission has determined it is admissible—ruled that, “Discrimination, even based on the process of the unification of disparate and contradictory sexual criteria, may also constitute sex-based discrimination while sex is at its most vaguely defined.” Therefore, it could be determined that a transgender person who has not completed a sex-change operation has been the victim of gender-based discrimination.

The Quebec Human Rights Tribunal, which handles cases regarding unlawful discrimination and harassment for reasons prohibited by the Charter of Human Rights and Freedoms, would therefore recognize the rights of transgender people.

This recognition of the rights of all transgender people by the Quebec Human Rights Tribunal reflects the tradition of openness and diversity of the people of Quebec.

Just like the Quebec nation it represents, the Bloc Québécois is open to diversity of genders, and any person who has their own values and follows their own program is welcomed with open arms, regardless of his or her sexual orientation or gender identity.

What legislation exists elsewhere in North America? In the United States, 18 states have passed laws prohibiting gender-based discrimination. President Barack Obama supports federal legislation, the employment non-discrimination act, which would prohibit discrimination based on sexual orientation and gender identity in the workplace.

A number of businesses that operate in different jurisdictions with varying laws regarding discrimination on the basis of gender identity are protecting themselves against potential lawsuits by adopting their own policies. We have come a long way since 2000, when statistics showed that only three companies had such policies. Now, 41% of Fortune 500 companies have included gender identity in their anti-discrimination policies.

[Rob Oliphant, Liberal, Don Valley West, ON]

Mr. Speaker, it is a privilege to rise and speak in support of this bill. I thank the member for Burnaby—Douglas for his tenacity and persistence in presenting issues with respect to transgendered people, transsexual people and the trans community in general. His work speaks well of all parliamentarians. We like to take credit for it at times and we thank him for doing that work.

His ongoing work has led to Bill C-389 which, as the previous speakers have said, seeks to do two things: one, to amend the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds of discrimination; and two, to make a very small amendment to the Criminal Code to ensure the same rights and protections on sentencing as we would hope would be ensure for any person of a discriminated group.

Also, I admit to the House that I am somewhat unprepared to speak to this bill. The member for Toronto Centre had planned to speak to it but was unable to be here today as he had to attend a funeral. He asked me to speak in this debate and I am very pleased to do so. I look forward to his comments in the second hour of discussion on the bill.

We support the bill for two reasons.

Members of Parliament are human beings and citizens. As we stand in this House, we recognize that we represent all people. As we gather in this place and discuss legislation and changes to the Criminal Code and the Canadian Human Rights Act, we are standing with our constituents. No matter how small the group is who may be affected by any one piece of legislation, ours is to ensure that freedom, justice and fairness extend to all Canadians.

For the exact same reasons the parliamentary secretary said she has some concerns with this bill, we support it. There apparently is a need for a discussion on the issue of transsexual people and transgendered issues for which people in Canada do not have a full understanding. In Parliament we can take the time to have this discussion, because that will foster the education of all Canadians on a very important issue. We are talking about a small community of people.

I have come to this issue in three ways. One is personal, one is pastoral and one is professional.

At a personal level, this affects friends of mine. I know people who have gone through the transition process to change their gender. That process has been difficult not only for them and their families, but it has been difficult for me as a friend. Each of us has a boundary that we sometimes come up against in our own understanding of human sexuality and human identity. It is absolutely critical that we take the time to converse with people who may be different from us.

That may frighten some people. It may cause them to have to open their minds and expand their experiences, but it is absolutely critical to understand that we are talking about real human beings. This is not an issue. These are people. They come to us with complex issues and complex problems and they should not have to face simple discrimination. This bill would uncover some of that problem.

The parliamentary secretary is asking for more evidence. I have enough evidence simply in knowing of one person who has faced discrimination. An injury to one indeed is an injury to all. We stand in this House to protect the very smallest of minority groups from discrimination.

Not only does this issue have a personal side for me, but there is a pastoral side as well. In my previous career as a United Church minister, I had the opportunity to preach a sermon on transgender issues. As it was a relatively small c conservative congregation, I was nervous about raising issues that people perhaps were not aware of. Perhaps they had not encountered people who were different from them in terms of sexual orientation, sexual gender, gender identity or gender expression. However, even though I was nervous, the congregation was not nervous. The congregation welcomed that sermon as one which opened their minds.

There were 350 people at church that Sunday, and after the sermon three individuals came up to me and said that the sermon had touched them personally. Two of them had transgender family members and one of them knew a transgender co-worker. They were looking for help and were glad that someone finally had the courage, or at least the reason, to raise that issue so that they could talk about it. It could be an open discussion and people could address their fears of people who may be different from them.

For me, this issue has a professional side as well. For a time I served on a human rights commission. We wanted clarification about issues. We were not afraid of expanding the legislation at all. We were not worried about having to expand our context of work because we knew anecdotally and somewhat statistically that people who are different from the mainstream majority continually face discrimination. It is important for us to take the time to make those small changes to those two pieces of legislation to ensure that discrimination does not happen.

As I was listening to the parliamentary secretary, I was not sure what her concerns really were. I was reminded of the definition of a Conservative as a person who has all kinds of things stored in his or her basement. My aunt was one of those people. She had a box that was actually labelled “pieces of string too small to save”. Pieces of string too small to save seems to be what the parliamentary secretary is arguing today. There are times when we have to take a risk. Maybe we do not have to know all the answers. Maybe we do not have to have all the definitions nailed down. Maybe it is time for Canada to continue its leadership role in human rights. We do not need to wait for everyone else to have all the definitions nailed down. If we want to talk about gender identity and expand it to gender expression, perhaps our leadership would be welcomed around the world.

Fifty-one per cent of the people in my riding come from outside Canada and 49% were born in Canada. I hear regularly from the people who have chosen Canada as their home that they chose it because Canada is the country that enshrines human rights in the Canadian Charter of Human Rights and Freedoms. In that charter we have welcomed the world to this country and have set ourselves up as a model of understanding, a model of expression and a model of ensuring that every minority group is afforded absolute protection.

This will stretch people in this House. This will stretch people in my own party. We have had our discussion about this. I think we have reached consensus that this is an important piece of legislation to further the discussion, not only to enshrine something in two pieces of legislation, but to open up the doors so that Canadians in every part of this country can have this discussion as well. We can stop being afraid of the discussion. We can stop being afraid of people who may be different from us, but who also may be members of our families, members of our communities, and neighbours on our streets.

As we open up that discussion, we will find there is really nothing to be afraid of. This will not do anything to stop freedom of speech in that freedom of speech is always limited by the expression of the rights of other people. We have that limitation already ensured and that must be continued and must be explicitly set out in these two pieces of legislation.

I look forward to more debate on this issue. It is important that more members of the House take the time to talk to trans people, to hear their stories, to express to them that their story is our story. Together as a community we share in both their pain and their joy as they reach full expression of the identity that I believe very personally God has given them. We must help them express that fully and safely and enjoy the full rights of being citizens in this country.

[Sylvie Boucher, Conservative, Parliamentary Secretary for Status of Women]

Mr. Speaker, I am pleased to participate in this debate on Bill C-389, a private member's bill introduced by the member for Burnaby—Douglas. As members of this House surely know, this bill would amend the Criminal Code and the Canadian Human Rights Act to include the expressions “gender identity” and “gender expression”, which would protect individuals against discrimination based on gender identity and gender expression.

I am aware of the need to protect all Canadians against discrimination and against all crimes. I am proud of what our government has done, and what it is still doing to protect all Canadians and Quebeckers. In particular, we introduced tougher mandatory jail sentences for serious gun crimes, and we provided better protection for our children against adult sexual predators, by changing the legal age of consent from 14 to 16.

I am also proud that Canada is known around the world for its belief in the principles of diversity and equality. These principles are enshrined in our Constitution and in our legislation.

In light of this, we have to ask ourselves whether the proposed amendments in Bill C-389 are clear or necessary. They may appear simple, but they could have complex, unpredictable legal consequences.

First, I would like to talk about the actual content of the bill. The bill would amend the Criminal Code by adding the terms “gender identity” and “gender expression” to the definition of “identifiable group” in the provisions on hate propaganda. This would mean that advocating genocide, inciting hatred where such incitement is likely to lead to a breach of the peace or wilfully promoting hatred against a group of persons distinguished by gender identity or expression would be a crime.

The bill would also add “gender identity” and “gender expression” to the non-exhaustive Criminal Code list of aggravating circumstances requiring a judge to impose a harsher sentence. This would mean that a judge could impose a longer than normal sentence on someone who commits a crime motivated by hate or prejudice against persons belonging to these two groups.

Lastly, the bill would add “gender identity” and “gender expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act. This act prohibits discrimination on grounds such as race, gender and disability in federal government employment and services.

To properly understand the impact this bill would have, we need to know what is meant by “gender identity” and “gender expression”. These things must be clarified so that we can have a healthy debate in the House. Unfortunately, the bill does not define either of these terms. It is essential that these important terms be clearly defined in the law.

The bill would add the term “gender expression” to the Canadian Human Rights Act and the Criminal Code. I do not believe that people commonly use this term, so we should know exactly what it means. To my knowledge, no other country in the world has made “gender expression” a prohibited ground for discrimination or has included the term in the definition of “identifiable group” in its hate crimes provisions as a completely separate concept from “gender identity”.

One example of what is happening overseas is the United Kingdom's Equality Act, which, I would like to point out, does not consider “gender expression” as a ground for discrimination, but prohibits discrimination based on gender reassignment.

The same point could be made about hate crime provisions. In certain American states, the concept of gender identity is part of the definition of “sexual orientation” or that of “sex”.

In summary, even in legislation that includes the concept of “gender expression”, this concept is always clearly linked to the concept of gender identity, at least to my knowledge.

To continue, I should note that not only are these amendments vague, but they could also be unnecessary or redundant. As I said earlier, the distinction between the two must be established.

First, I would like to point out that the Canadian Human Rights Tribunal has already studied a number of complaints filed by transsexuals, and it found that these complaints were justified based on the ground of sex.

By deciding that transsexuals are already protected by provisions in federal human rights legislation, the tribunal followed the approach of human rights tribunals in British Columbia, Quebec and other provinces, which determined that discriminating against transsexuals is prohibited based on the current ground of sex. This interpretation was confirmed by the tribunals.

We should therefore think about whether adding “gender identity” and “gender expression” to the Canadian Human Rights Act is really necessary. I would like the members to comment on that.

Perhaps we should also think about whether these grounds need to be included in the Criminal Code sentencing provision in subparagraph 718.2(a)(i), which lists various aggravating factors, such as evidence proving 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 any other similar factor,

That list is not exhaustive. Judges already have the power to impose heavier sentences for hate crimes against transgender people when justified under the circumstances.

If we consider adding “gender identity” and “gender expression” to the hate propaganda provisions in the Criminal Code to comply with the Canadian Charter of Rights and Freedoms, we need enough evidence to conclude that there are enough cases of hate propaganda against transgender people.

Without that evidence, it is difficult to justify amending the Criminal Code and placing additional restrictions on free speech. Such evidence may exist, but I just want to point out that if we broaden the definition of “identifiable group” set out in the hate propaganda provisions, that will further infringe on Canadians' right to free speech.

As is often the case, a proposed change that may appear simple on the surface can, upon further study, turn out to be quite complicated and may produce unintended legal consequences. We need to look at whether there are any gaps in our current laws and carefully consider any proposed changes to ensure that every individual's basic rights are protected. At the same time, we should avoid introducing redundant elements into our legislation.

I am eager to hear what the members of the House have to say about these issues. Personally, I think that a clearer understanding of “gender identity” and “gender expression” is critical to healthy debate in the House.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

moved that Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the second time and referred to a committee.

Mr. Speaker, I am very proud to begin debate on my private member's bill, Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

I wish to thank the members of Parliament who have seconded the bill, the NDP members for Halifax, Windsor—Tecumseh, Hamilton East—Stoney Creek, Toronto—Danforth, Vancouver Kingsway, Vancouver East, Sackville—Eastern Shore, Nanaimo—Cowichan and Trinity—Spadina; and Liberal members for Yukon, Don Valley West and Toronto Centre. The trans community and their families, friends and allies appreciate their support for this initiative as do I.

The bill is about explicitly ensuring full human rights protection in areas of federal jurisdiction for transgender and transsexual Canadians. It does that by adding gender identity and gender expression to the list of prohibited grounds of discrimination in the Canadian Human Rights Act, and in the sentencing and hate crime provisions of the Criminal Code of Canada.

This is the first time gender identity and gender expression have been debated in the Canadian Parliament. It is a historic debate that is overdue. The actions proposed in this bill are also overdue.

This is a debate that will take place without the direct participation of trans people because at this time there is no openly trans member of Parliament. I feel their absence acutely at this moment. Not having someone who can speak directly and personally to the experience of being trans will mean that important things will remain unsaid and other points will be made awkwardly.

It will be a day to celebrate when an openly trans person is first elected to the House. It will be another step toward ensuring that the House of Commons is truly representative of the diversity of Canadians.

What is gender identity and gender expression? Who are transgender and transsexual people? Gender identity refers to an individual's self-conception as being male or female, their sense of themselves as male or female. Gender expression refers to how a person's gender identity is communicated to others through behaviour, speech, dress or mannerisms.

Transsexuals are people whose gender identity differs from their biological or birth sex, and who seek to live permanently as the gender other than their biological sex. Most often transsexuals seek medical interventions such as hormones and surgery to make their bodies congruent with their sense of their genders. A transition process which is known as sex reassignment or gender reassignment is engaged.

Transsexual individuals describe their experience in this way. Before transitioning it is like never being able to go home, even while knowing exactly where home is. For some it is the clothes and social gender role. For others it is the body and whether it betrays who we are constantly, every minute, so that no matter how hard we try, we are always lying. There is a great fear and anxiety of accidentally giving oneself away leading to a permanent self-vigilance and second guessing, lest some spontaneous random act gives us away. For some this becomes a constant hiding and cutting oneself off from others.

Transgender people may live part-time or full-time as members of the other gender and they may live in a way that combines or blends genders or they may exhibit characteristics of neither gender. They include cross-dressers, transvestites, drag queens, drag kings, androgynous people, by-gendered people or gender queer people.

It is estimated that in western countries there is about one transsexual in 10,000 for biological males and one in 30,000 for biological females. It is also thought that as many as 2% to 3% of biological males engage in cross-dressing at least occasionally.

Because the life experience of trans people challenges the assumption that one is either male or female and because that has been in our society a central assumption of human experience, they are regularly subjected to discrimination, prejudice and violence. They face well documented discrimination in the workforce, housing, health care, and in obtaining services. Obtaining appropriate identity documents are often extremely problematic.

Trans people face significantly higher rates of violence including sexual assault and murder. That violence is often over the top when compared with the violence faced by women and other minorities.

This is clearly a manifestation of trans phobic violence. Each year in November Transgender Day of Remembrance commemorates the many trans people who experience violence even to the point of death.

Trans people have always been part of our communities and are known across most cultures. First nations and Inuit people often recognize trans people as having special gifts and insights. In western culture, Christine Jorgensen became one of the most famous transsexuals in the early 1950s.

In recent years the roles of trans people, particularly drag queens, in the start of the modern gay liberation movement has been celebrated. It is clear that drag queens led the patrons of the Stonewall Inn to fight back against police harassment in the historic events in New York in 1969.

Trans people have organized support and political action groups in almost every city in Canada regarding issues of human rights, health care, education and ending violence. In my home community, the Trans Alliance Society vigorously pursues this work.

What was the origin of this bill? Back in 2004, two students from Carleton University's School of Social Work, Corie Langdon and Chris Boodram, undertook a trans legislative needs survey with the support of Transgender Canada, the Ethics Institute of Canada, Gender Mosaic, Egale Canada and Svend Robinson. They found that participants in their survey, who were mostly from the Ottawa area, experienced high incidents of verbal harassment, 74%; intimidation, 54%; hate propaganda, 41%; attempted assault, 38%; and physical assault, 32%.

Participants also experienced significant levels of discrimination in housing, employment and services including unwelcome comments at work, 43%; unwelcome comments in living accommodations, 32%; and discrimination in bars, restaurants, schools, universities and colleges, each at 32%. Langdon and Boodram suggested that the changes proposed in the bill we are debating today would meet both the personal expectations of the participants for human rights protection and provide an appropriate legislative agenda to address those concerns.

Their evidence has been supported by more recent studies. In Canada, Egale Canada's national climate school survey showed that 95% of trans students felt unsafe at school, compared to one-fifth of non-trans students, and 9 of 10 trans students reported that they were verbally harassed because of their gender expression.

The trans PULSE study in Ontario as well as the personal and professional experiences of members of the Canadian Professional Association for Transgender Health are consistent with the findings of the national transgender discrimination survey, which was released last November in the United States. That study showed that 47% of trans people had been denied employment due to their gender identity or expression; 44% were denied a promotion; 23% were fired, and 97% had experienced workplace harassment. High levels of assault were reported as well as significantly low income levels and housing stability. Again, related to the negative impacts of discrimination.

When I was elected in 2004, in my capacity as NDP gay, lesbian, bisexual, transgender and transsexual issues critic, I undertook a series of consultations with the trans community. In person consultations were held in Ottawa, Toronto and Vancouver, and there was a vigorous email consultation with others across Canada. Those consultations confirmed that amending the Canadian Human Rights Act, to include gender identity and expression as prohibited grounds, was the key priority for the community. With similar amendments to the sentencing and hate crime provisions of the Criminal Code, they also ranked very high. As a direct result of the consultations, legislation was drafted and tabled leading directly to today's Bill C-389.

Other jurisdictions have been moving on these issues. In Canada, the Northwest Territories is the only province or territory to explicitly include gender identity as a prohibited ground of discrimination in law. The cities of Vancouver, Toronto and Ottawa have policies protecting transsexual and transgendered people, and Vancouver most recently has moved to amend its workplace harassment policy.

In many provinces trans people have succeeded in defending their rights using the existing grounds of sex and disability. While it is positive that decisions favourable to trans people have been made using these categories, it is clear that discrimination based on gender identity is different than that based on sex. It is equally clear that having a different experience or understanding of one's gender than the majority is not a disability. For these reasons a number of human rights commissions, including the Canadian Human Rights Commission, have supported including gender identity as a prohibited ground of discrimination in law.

Including trans people explicitly in human rights legislation can have a profound effect. A trans person makes the point this way saying, “How can I feel part of society if I cannot point to human rights legislation and say, there, I'm included”.

In the United States, in October 2009, President Obama signed into law hate crimes protections for trans Americans. The U.S. Congress is currently considering an employment non-discrimination act that names gender identity as a prohibited ground of discrimination.

Also in the United States, 13 states, the District of Columbia, and 109 cities and counties have non-discrimination laws and hate crimes laws that are trans inclusive.

Canada has supported human rights protection for transgender and transsexual people internationally.

In June 2008, with Canada's support, the General Assembly of the Organization of American States adopted a resolution on human rights, sex orientation and gender identity.

As well, Canada is a signatory, with 67 other countries, to the draft text of the United Nations Statement on Human Rights, Sex Orientation and Gender Identity.

Many organizations in Canada have taken steps to support transgender and transsexual people, and to end the discrimination they face. Trade unions and the CLC have been significant leaders in this effort. A number of religious organizations have also been at the forefront. Human rights organizations, like Amnesty International, recognize the need to protect trans people. Egale Canada and PFLAG are also strong advocates. Many large Canadian corporations have also accommodated trans people in their policies, as well.

What are the arguments against not proceeding with these changes?

In recent years there has been some criticism of the human rights framework we have developed in Canada and of hate crimes legislation. That may be a debate in which we need to engage. However, I believe that we should not engage that broader debate at the expense of including transgender and transsexual people in the existing human rights framework in Canada.

There is a system in place. There is a group that is not included that faces significant discrimination in our society. We should amend the existing legislation to include them and then, if necessary, engage the broader general debate about human rights and their protection.

I believe that Canada is well-served by the current human rights regime that we have in place in Canada, and I certainly would not be one of those who advocates for changing that system, but it is a broader debate that we could engage. However, I do not think we should do that at the expense of including transgender and transsexual people in the provisions of our human rights regime.

As well, issues about the use of bathrooms and other gendered spaces often come up when human rights protection for trans people are discussed.

The fear is raised that by ensuring the right of trans people to express their gender identity will make it impossible to ensure the security of gender-specific washrooms and locker rooms. Fears are raised that it will be impossible, for instance, to prevent a heterosexual man from disguising himself in order to harass, or worse, women in a women's bathroom.

Nothing could be further from the reality of this kind of legislation to protect gender identity in expression. In fact, in the United States, there have been no incidents, not one, of the inappropriate use of washrooms as the result of protecting trans rights.

The security of a washroom is currently protected by, and will continue to be protected by, criminal sanctions against those who behave inappropriately, who harass, or who assault washroom users. I believe that the bathroom issue is a red herring in the debate on trans rights.

Clearly, there is a need for this legislation. There is no doubt about the prejudice, discrimination and violence faced by trans people. There is no doubt that their experiences of gender are part of our human experience, broadening our understanding of gender and exposing our full humanity. There is no doubt that trans people are beloved members of our families, our co-workers and our neighbours, who enrich our lives. There is no doubt that trans people should be able to lead happy, healthy, secure and productive lives. There is no doubt that discrimination and prejudice are costly to any society.

That is why, plain and simple, we need this legislation. We must be absolutely and explicitly clear that trans Canadians are a valued part of our families and our communities.

[Thomas Mulcair, NDP, Outremont, QC]

Mr. Speaker, I have the honour today to present a petition signed by a number of persons from all over Canada, but particularly from Quebec.

This petition is addressed to the House and relates to adoption of Bill C-389. This is a bill which was introduced by my colleague to amend the Canadian Human Rights Act in order to include gender identity and gender expression as prohibited grounds of discrimination and to amend the Criminal Code to include gender identity and gender expression in the grounds for hate crimes and thus fight discrimination and social exclusion of transgender, transsexual and genderqueer people.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

moved for leave to introduce Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

Mr. Speaker, I would like to thank the hon. member for Windsor—Tecumseh for seconding the bill.

The bill will add gender identity and gender expression to the list of prohibited grounds of discrimination in the Canadian Human Rights Act and to the Criminal Code sections regarding hate crimes and sentencing provisions, providing explicit protection for transgender and transsexual Canadians from discrimination in all areas of federal jurisdiction.

Transsexual and transgender Canadians face significant prejudice in their daily lives. Whether it is job discrimination, access to housing and public services, especially health care, problems with identity documents, difficulties with law enforcement officials, a high suicide rate, or the increased likelihood that they will be victims of violence, the situation of transsexual and transgender people demands our attention.

The bill would give transsexual and transgender Canadians direct access to the protections provided for in the Canadian Human Rights Act and the Criminal Code of Canada that they so urgently need.

I look forward to seeing the bill debated this fall in the next round of private members' business. Given that transgender and transsexual folks are members of our families, our friends, our co-workers, and our neighbours, I hope this measure will find support in all corners of the House.

(Motions deemed adopted, bill read the first time and printed)