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

[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)