Evidence of meeting #53 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was tribunal.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Ian Fine  Acting Secretary General, Secretary General's Office, Canadian Human Rights Commission
  • Susheel Gupta  Acting Chairperson and Chief Executive Officer, Canadian Human Rights Tribunal
  • Diane Watts  Researcher, REAL Women of Canada

3:30 p.m.

Conservative

The Chair Dave MacKenzie

Seeing that the clock is at 3:30, this is meeting number 53 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Wednesday, June 6, 2012, we are studying Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

I would like to thank the panel for coming back. The last meeting was a bit of a problem, in that we never got started, although everyone was here. Our apologies to you for the inconvenience. Sometimes those things happen here. There's really no real explaining, other than that the bells were ringing and we had to leave for votes.

Today we have a panel with the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, and REAL Women of Canada.

If you have an opening address, we'll begin with the Canadian Human Rights Commission.

3:30 p.m.

Ian Fine Acting Secretary General, Secretary General's Office, Canadian Human Rights Commission

Dear honourable members, thank you for inviting the Canadian Human Rights Commission to contribute to your study of Bill C-279, a bill to amend the Canadian Human Rights Act to include gender identity and gender expression as grounds of discrimination.

I would like to introduce my colleagues. On my right is Philippe Dufresne, the Acting Director General of Dispute Resolution and Senior General Counsel of the Canadian Human Rights Commission. On my left is Tracey Donaldson, Acting Director of Policy and International Relations.

I have three main points. First, the discrimination or harassment experienced by people who are transgender is often hostile and sometimes hateful and violent. Second, the commission, the tribunal, and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act. Finally, adding the grounds of gender identity and gender expression to the Canadian Human Rights Act would make this human rights protection explicit.

It is difficult to know how many transgendered people there are in Canada. What we do know is that many transgendered individuals are reluctant to identify themselves or seek assistance. Often they fear being shunned by society, or they fear being harassed or treated unfairly, or they may fear for their safety. Even accessing health care or obtaining identification documents can be difficult. Some feel that doing so threatens their privacy and in turn their security.

In a country where we take pride in being diverse and inclusive, nobody should have to live in fear because of who they are. Parliament designed the Canadian Human Rights Acts to promote equality and acceptance.

This act was created to protect all of us, including vulnerable members of our society, from harassment and discrimination. The Canadian Human Rights Commission is responsible for administering the act and promoting equality.

We receive discrimination complaints regarding employment and services provided by organizations under federal jurisdiction. This includes the federal public sector, as well as private sector companies involved in industries such as transportation, telecommunications and banking. The commission screens all the discrimination complaints it receives. Many are settled through mediation or resolved through a dispute resolution process. In some instances, we refer complaints to the Canadian Human Rights Tribunal for adjudication. The tribunal operates independently of the commission.

As I mentioned, if someone experiences discrimination based on gender identity or gender expression, they are currently protected under the Canadian Human Rights Act. In the past five years, the commission has received 19 discrimination complaints that raise transgender issues. Eight of these cases are still open.

We at the commission believe that the complaints that come forward do not provide a full picture of discrimination involving gender identity or gender expression. For many, filing a complaint is a last resort. It takes courage. The fear of stigma can be overwhelming for some. It's often easier to remain silent.

This brings me to my last point. In the past, Parliament has amended the Canadian Human Rights Act to ensure that the most vulnerable members of our society are protected from harassment and discrimination. Adding the ground of sexual orientation is one example. Adding the grounds of gender identity and gender expression to the act would make protection of the transgender community explicit. This would promote acceptance and send a message that everyone in Canada has the right to be treated with equality, dignity, and respect.

Thank you for your attention, and we look forward to taking your questions.

3:35 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Fine.

Mr. Gupta, did you have an opening address?

3:35 p.m.

Susheel Gupta Acting Chairperson and Chief Executive Officer, Canadian Human Rights Tribunal

I do. Thank you, Mr. Chair.

Good afternoon, and thank you very much, Mr. Chair and honourable members, for the invitation to appear before your committee today as you deliberate Bill C-279.

I thought I would begin by taking a few moments to discuss the mandate of the Canadian Human Rights Tribunal, as it will inform the scope of my presentation. I will then provide an overview of the legal principles that govern us when dealing with discrimination complaints, and in closing, I will provide the committee with some information on cases decided by the tribunal that raised issues of gender identity or gender expression.

The Canadian Human Rights Tribunal is one of the two administrative agencies created by the Canadian Human Rights Act, or the CHRA. The other one is the Canadian Human Rights Commission. While the commission's mandate is multi-faceted and includes a wide range of powers, duties, and functions, the statute has only assigned one main function to the tribunal, and that is the adjudication of complaints.

In the context of the CHRA, this adjudication process is referred to as an inquiry. An individual who believes that discrimination has occurred, within the meaning of the CHRA, can file a complaint with the commission. If the commission believes that an inquiry is warranted, it triggers the adjudicative process by making a request of the tribunal to inquire into the complaint.

The inquiry mandated under the CHRA has been described as quasi-judicial, which essentially means court-like. Hence, the tribunal has many of the powers and attributes of a court. It is empowered to find facts, to interpret and apply the law to those facts before it, and to award appropriate remedies.

The tribunal hearings have much the same structure as a formal trial before a court. The parties before the tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts.

This Parliament only assigned to the tribunal the role of adjudication. The tribunal cannot be involved in crafting policy. It has no regulatory role vis-à-vis discriminatory practices in the federal workplace, nor does it have a public advocacy role. These roles are assigned to other bodies.

A number of consequences flow from the court-like structure and focused mandate of the tribunal. First, its members are required to maintain a high degree of independence from the executive branch of government, in particular from our portfolio department, the Department of Justice.

Furthermore, to conserve their impartiality, it is important for the adjudicator of our tribunal to adopt and retain a position of neutrality in respect of issues that can and will be debated in cases they may be called upon to decide.

In the context of your current study, these principles prevent tribunal members, including me, from issuing opinions on many of the matters that will be discussed as you review Bill C-279, which is not to say that tribunal members never make findings on issues of gender identity or gender expression. On the contrary, they have been required to do so previously and will likely be called upon to do so in the future. However, they must make these findings in the context of their adjudicative mandate, based on the submissions of the parties in a particular case, along with the evidence led and the applicable legal principles.

This leads me to my next topic. What are the legal principles that the tribunal applies to discrimination complaints? How do we define discrimination?

The answer to these questions originates in our enabling legislation, the CHRA. A useful starting point is section 4, which succinctly sets out the basic liability scheme. Essentially, in this statute Parliament has identified a number of discriminatory practices. Anyone found by the tribunal to be engaging in or to have engaged in a discriminatory practice may be made the subject of a remedial order.

What does the CHRA consider a discriminatory practice?

There are a number of acts and courses of conduct so designated, including denying access to services facilities or accommodation; refusing to employ or continue to employ an individual; establishing a policy or practice that deprives an individual or class of individuals of employment opportunities; and harassment and adverse differentiation, both in matters related to employment as well as in the provision of services, facilities, or accommodation.

However, almost every discriminatory practice in the CHRA, by definition, must be based on a prohibited ground of discrimination. Here is where we arrive at some of the issues raised by Bill C-279.

The CHRA designates 11 prohibited grounds of discrimination, namely, race, national ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, or conviction for an offence for which a pardon has been granted or in respect of which a record of suspension has been ordered.

As has been alluded to in the House of Commons debates, to the extent that the tribunal has dealt with transgender issues thus far, it has done so within this statutory framework of prohibited grounds, in particular, under the grounds of sex and disability. However, the tribunal has never had to decide a case where the parties put forward sharply opposed arguments on the question of whether or not gender identity or gender expression is protected by the act.

If you will allow me to elaborate, the tribunal has had four cases dealing with gender identity or gender expression that it has been required to adjudicate.

In the first case, the tribunal has found, on the point that's most relevant to this current discussion, and I quote:

There is no dispute that discrimination on the basis of Transsexualism constitutes sex discrimination as well as discrimination on the basis of a disability.

There have been three subsequent cases that raise gender identity and gender expression issues. In all of them, the tribunal found that discrimination on these grounds fell within the prohibited grounds protected by the CHRA. However, in each of the cases, the key issue relevant to this committee's deliberation does not appear to be a point of contention between the parties.

As you can see, we haven't dealt with a large number of these kinds of cases. That said, in considering the number of cases heard by the tribunal on the given subject matter, there are several important considerations that should be taken into account.

First, not all federal discrimination matters become complaints filed with the commission. Other agencies and boards have concurrent jurisdiction over CHRA matters.

Second, of the discrimination complaints filed with the commission, only a small subset were referred to the tribunal for inquiry. As my friends from the commission have already indicated, some of those complaints end up being resolved through ADR practices or mediation under their process.

Third, of those complaints that are referred to the tribunal, a significant number are resolved by tribunal members mediating the complaints to facilitate settlements by the parties, thus never resulting in a hearing or an inquiry ever being conducted.

In closing, I would simply like to say that I hope this presentation has been of assistance to the committee.

Thank you.

3:40 p.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Ms. Watts, do you have a presentation?

3:40 p.m.

Diane Watts Researcher, REAL Women of Canada

Yes, thank you, Mr. Chairman.

Thank you for inviting us before this committee.

REAL Women of Canada was federally incorporated in 1983 and is a non-denominational, non-partisan organization of women from all walks of life. We respond to the evidence that the family, consisting of mother, father, and children, is the foundation of society.

Bill C-279 is not just a simple bill merely extending human rights protection to another category of individuals. It has far-reaching ramifications for Canadian society, and based on credible medical studies, the consequences of the bill will be harmful to transgendered individuals themselves.

It may be politically correct, but it will not be helpful to persons with gender dysphoria, that is, gender dissatisfaction. The United Nations rejected the terms “gender expression” and “gender identity”. The Geneva-based United Nations High Commissioner for Human Rights' controversial recommendation that gender identity and gender expression be protected rights was overwhelmingly rejected by the United Nations Human Rights Council in March 2012. Similarly, the non-binding UN declaration on sexual orientation and gender identity was never voted on by the UN General Assembly. In fact, it was directly contradicted by another UN declaration presented by other UN member states.

The United Nations has never accepted gender identity as a legitimate human right, although the term was included in a recent draft resolution condemning extrajudicial executions on the basis of the principles of right to life and the fight against impunity. Even the one country that voted against this recommendation was in favour of the general prohibition of extrajudicial executions, and the party states that did not vote had difficulty with other sections of the resolution presented.

I will describe the scientific evidence on morbidity and morality related to transsexual persons. This concerns us. A study was conducted in Sweden by various departments of Karolinska Institutet in Stockholm of post-operative transsexual persons, which was unique in that it included the results of a nationwide longitudinal study of 30 years with minimal loss of follow-up. Published in 2011, this Swedish study found substantially higher rates of overall mortality, death from cardiovascular disease and suicide attempts, and psychiatric hospitalizations in sex-reassigned transsexual individuals compared to a healthy control population.

Even though surgery and hormonal therapy may alleviate gender dysphoria, they are apparently not sufficient to remedy the higher rates of morbidity, diseases and disorders, and mortality found among transsexual persons, so the furthering of a declaration of acceptance of this type of medical transformation as a result of Bill C-279, we believe, would not be helpful to transsexual and transgendered individuals.

The Yogyakarta Principles, the source of a gender identity definition, are vague. They can be interpreted to interfere with parental rights to counsel that gender-confused children be helped to continue in the gender consistent with their genetic make-up. By interfering with parental authority, the Yogyakarta Principles contradict the provisions of the United Nations Universal Declaration of Human Rights, which declare that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State”—article 16(3).

On March 31, 2010, the American College of Pediatricians distributed a letter to school officials citing various research studies, which affirmed:

Even children with Gender Identity Disorder (when a child desires to be the opposite sex) will typically lose this desire by puberty, if the behaviour is not reinforced. ... ...that when parents or others allow or encourage a child to behave and be treated as the opposite sex, the confusion is reinforced and the child is conditioned for a life of unnecessary pain and suffering.

The Yogyakarta Principles would object to parents discouraging their child to identify in this way, and they would discourage counselling to prevent young people from identifying in this manner.

We're concerned about the troubling effects of Bill C-279 if it's passed into law: male access to women's public washrooms and health clubs. There's a situation in Washington where a man who thinks he's a female has been allowed entrance into a health club where children change. A women's pool is there, apparently, and there are young children and adolescents. This presents a problem, and we believe this could present a problem in the future.

Since the terms “gender identity” and “gender expression” are undefined, they apply to anyone who thinks he or she is another sex, whether or not he/she has had hormonal treatment or surgery. In our appendix, we mention a case, Sheridan v. Sanctuary Investments, wherein a male thought he/she was a female, was prevented from entering the women's washroom, and went to the human rights commission. The discrimination was recognized and the nightclub was fined $2,000.

There can be a tremendous permutation of these types of situations, and we believe these are socially disruptive. This allows such individuals to use the washrooms of the opposite sex with impunity. This places females and children at a strong disadvantage and at possible risk, since child predators will be able to use cross-dressing as a pretense to gain access to children in public washrooms.

Second, taxpayers would be required to cover extensive surgery, hormone treatments, and cosmetic follow-up for a lifetime. If transsexualism and transgenderism are protected rights in federal jurisdictions, such as the federal public service, and federally regulated industries, such as banks and airlines, these industries will be required to pay the medical premiums on behalf of the employees to cover extensive surgery and hormone treatment and to accept these employees after such hormone treatment. Assimilating them back into the workplace will inevitably create difficulties.

In Canadian penitentiaries, this issue will also create problems. If Bill C-279 is passed into law, prison officials, at taxpayers' expense, will be required to provide treatment for those inmates claiming they were born the wrong gender. This will lead to difficulties for the transgendered themselves, creating exposure to risks for him or her. This already has occurred in Massachusetts in 2012, when a prisoner given a life sentence for the murder of his wife in 1980 was approved by the court to undergo sex reassignment surgery. The individual now resides in an all-male prison and will face security risks daily as a target of sexual assault by other inmates. Alternatively, if the inmate is transferred to an all-female prison, he/she will also be a target for assault and harassment by other inmates. We're concerned about the consequences of this.

Our conclusion is that transsexual and transgendered individuals must have the same rights as all other Canadians, but should not be given special rights. We're very much opposed to any violence or undue discrimination and assaults. This is part of our Criminal Code. We're very much in favour of the defence of anyone to lead a free life in Canada. Persons with gender identity disorders should receive compassionate counselling rather than be encouraged in their dissatisfaction with their genetically ingrained gender. The DNA does not change after these treatments.

REAL Women of Canada therefore urgently request that this bill not be passed into law.

Thank you, Mr. Chair.

3:50 p.m.

Conservative

The Chair Dave MacKenzie

Thank you, Ms. Watts.

We'll begin the rounds with Mr. Garrison.

November 27th, 2012 / 3:50 p.m.

NDP

Randall Garrison Esquimalt—Juan de Fuca, BC

Thank you very much, Mr. Chair.

Thank you again to all the witnesses for agreeing to return today, despite the rudeness that sometimes appears in our parliamentary procedures.

Before I ask you some questions, Ms. Watts, I have some remarks on your brief, because it's been presented to a House of Commons committee, and I believe that some of it cannot go unchallenged. I have to say to you, without any personal rancour, that some of what you say in your brief is, frankly, offensive. The connection that you attempt to draw to pedophilia—anyone who's taken the time to inform themselves on the issues before us would know and should know that there is no connection between the issues we have before us of gender identity, gender expression, and pedophilia.

Much of the rest of what you presented is simply inaccurate. This includes your references to medical and scientific evidence, which is either outdated or often given a very distorted interpretation. This includes your reference to the rejection of the terms “gender identity” and “gender expression” at the United Nations. In fact, you mentioned in your brief just two weeks ago that the UN resolution on extrajudicial summary or arbitrary executions was adopted, which contains the reference to the rights for protection against discrimination on the basis of sexual orientation or gender identity.

This also includes your reference to the use of gender identity protections in attempts to use bathrooms for unlawful activities, such as assault or voyeurism. In fact, on this point, just today—unfortunately, the letters I received from the United States were not able to be translated in time, but I've tabled them with the chair. These are letters from human rights organizations in four states that have protection against discrimination on the basis of gender identity in their legislation. These are Iowa, Colorado, Washington, and California. In each letter, the officials confirm that there have been no complaints and no incidents regarding attempts to take advantage of protections afforded against discrimination based on gender identity in order to use a bathroom or locker room to engage in inappropriate behaviour, such as voyeurism or assault; there have been no incidents in those states that have this protection.

I have in front of me details of 10 requests to meet with your organization from transgender organizations. My question to you first is, if you're appearing here as a witness, why did you ignore these requests or refuse to meet with transgender organizations, who tried their best to get a meeting with you before this meeting today?

3:50 p.m.

Researcher, REAL Women of Canada

Diane Watts

I'd like to respond to some of the other statements you made.

About the pedophilia, unfortunately, the definitions put forward in the Yogyakarta Principles,which are being brought forward consistently and globally, are often so open that they could apply to anyone having any sexual orientation towards anything. So any definition adopted by the committee should include the term “adult”, so that we're dealing with adult choice and not someone influencing a child and labelling a child because the child has decided they want to be close to someone who has an orientation towards children.

You may object to many of the things in our brief, but I think it's important that we include the term “adult” in any definition, because many of the terms put forward with gender identity are open to just about anything. It's very, very clear in regard to principles—it's open to any type of identity that anyone chooses to have.

In terms of gender identity and gender expression, the approval of resolutions at the United Nations is very limited—limited to extra-judicial executions; not even judicial executions, but extra-judicial executions, which we would normally call lynchings. So every country objected to that, and defended people, with whatever gender identity or gender expression, from being executed. It's the same with the other resolutions passed. They're very limited, and there have been objections across the board to a wide-open acceptance of these two terms because of the confusion it would cause domestically and to families.

In terms of not meeting with gender identity groups, we had people phoning our office asking to meet with us and we referred them to our literature. We have extensive literature on this issue, and they can learn everything they can from consulting our material. We'll meet before the committee. We'll meet before anyone who's interested in hearing all sides of the situation, but in terms of meeting individually, we don't usually do that before we appear before a committee.

Also, in terms of pedophilia, we have an article in our September-October 2011 newsletter that described pedophile activists forming an organization, B4U-ACT, in Baltimore, Maryland, and holding a conference August 17, 2011, with speakers from several prominent universities. The conference themes were that pedophiles are unfairly stigmatized and demonized by society. Children are not—

3:55 p.m.

NDP

Randall Garrison Esquimalt—Juan de Fuca, BC

Mr. Chair, with respect, this has nothing to do with the bill—

3:55 p.m.

Researcher, REAL Women of Canada

Diane Watts

It has everything to do with—

3:55 p.m.

NDP

Randall Garrison Esquimalt—Juan de Fuca, BC

It has nothing to do with the bill.

3:55 p.m.

Researcher, REAL Women of Canada

Diane Watts

—our concerns about pedophilia.

3:55 p.m.

Conservative

The Chair Dave MacKenzie

Ms. Watts, we're out of time.

The problem is that we're out of time—

3:55 p.m.

Researcher, REAL Women of Canada

Diane Watts

Thank you.

I can continue, and you can consult our newsletter, if you're interested in—