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

[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.

[Hedy Fry, Liberal, Vancouver Centre, BC]

Mr. Speaker, I rise to support the bill. The hon. member who moved the bill has worked very hard on this for a long time and is very committed to the issues of equality for all.

I support the bill for many reasons. When I first became a member of Parliament in 1993, as a physician, I saw what discrimination based on sexual orientation cost my patients. I saw the high levels of suicide and discrimination. I saw the law discriminated against access to medical care, to dental benefits, to medical benefits in every way.

Persons who were same sex couples and had lived together for many years were unable to do the simple things that a heterosexual couple that had been together for a year could do. In other words, if a partner was dying or ill, the person did not have the right, no matter how long he or she had lived with that partner to make decisions with regard to care and with regard to funeral arrangements in the event the partner passed away.

As a physician, this did not allow me to do my job or to take care of my patients in a manner that should be beyond any kind of discrimination whatsoever, as stated in the Canada Health Act. As a result, the Liberal government brought forward these issues, and today we have equality based on sexual orientation.

However, the bill speaks to another issue where, as a physician, I saw a great deal of discrimination. This is a medical diagnosis. The concept is there are persons who we like to call transgender persons. They have problems coming to grips with their sexual identity. They then go to see a physician. There is a definite medical diagnosis that states these people need to look at their identity gender change. There are many things they need to access. They need to access psychiatric care in terms of decision making and in terms of the diagnosis. Once that is done, there are all sorts of medical options available such as the necessary medication for the change to occur, surgical interventions, et cetera.

Depending on what province these patients live in, many do not have access to that kind of medical care. The Canada Health Act states very clearly that we cannot discriminate against people if they require medically necessary care. As a diagnosis, this falls under the heading of medically necessary care and all of the pieces that come in between.

For a medical reason alone, we once again have a group of Canadians that do not have access to the care it needs when it needs it regardless of its ability to pay, or geography or pre-existing conditions, portability and all the pieces of the Canada Health Act about which we need to talk.

For medical reasons alone, even if we did not bring on the reasons that pertain to discrimination, to equality within the country, to the Charter of Rights and Freedoms, to the concept that we cannot discriminate against any Canadian because of his or her particular group identity, this fits into all of those things.

However, as a physician, I really want to speak to the fact that we are denying certain members of our society, based on their group and identities, access to good care when they need it.

I have had many patients who struggled to decide if they did have a gender identity problem or if they needed to move into the next stage, which is to have whatever medical care they need to help them to deal with this issue. They were the transgender patients. Not only did they not have access to the health care they needed, or access to the ability to deal with a lot of psychological as well as the physical trauma they underwent during that period of time, many of these people faced a totally different kind of discrimination.

They faced discrimination from the heterosexual community and, in many instances, from within their own communities sometimes because no one knew who they were. They did not have access to simple things like washrooms because they were considered neither fish nor fowl. No one had decided who they were. That kind of discrimination is psychologically devastating to a person, if we put aside the medical needs for a minute.

When people do not know who they are and do not have access to counselling to help them deal with these issues in a real way in order to find out who they are and why they are trapped, the whole concept of lack of control over anything they do affects their psychological ability to live normal lives, to walk into a community and to express themselves once they have had a diagnosis made.

For people who had money and were able to go to another country to get whatever medical care they needed to become transgendered persons, when they returned to Canada the discrimination was extraordinary. As a physician, as an MP and as a Vancouverite, I have been around the community and I have seen the pain, the discrimination, the isolation and the inability to be welcomed anywhere by anyone because of the concept of people not accepting people for who they are. This is an extraordinary thing to live with.

We need to look at the number of suicides and the different addictions people have to help them get out of the place where no one accepts them. We need to deal with this issue because it is of profound importance to a group of Canadians.

If we believe in our Charter of Rights and Freedoms and we buy into our Canada Health Act, we must take every step necessary to, first, make every Canadian equal under the law, and, second, by being equal under the law, the law and the nation makes a statement that we will not accept people being discriminated against in this country where we have chosen to set up a charter that speaks in section 15 to the issue of minority rights.

We cannot say that one minority has more rights than another. The minute we start saying that someone has more rights than another person, we immediately set up a criteria of different levels of people who are accepted in society. One thing we all know is that when people are not accepted in society, they will rise up to seek their rights.

We are talking about basic human rights and with human rights comes access to all of the things that human beings can enjoy: the ability to live in freedom and seek opportunity and potential wherever we can; to have access to justice, education, health care and all of the things that allow us as human beings to realize whatever it is that lies within us and in our potential to live meaningful lives; and to be a part of communities that accept and embrace us.

We are discussing a fundamental human rights issue. As I said, the subsets of it are access to medical care, freedom and equality under the law. Those are just chunks of things that we bring in under the subheading of the basic human right to life, to the freedom to be who we are, to choose who we wish to be, to live in a manner that co-exists with other people and to live as a lawful human being who does not harm others and can become a productive and contributing member of society.

Those are fundamental things that we all want. We can deny other people for all sorts of trumped up reasons. There are always great reasons. We can cite legal precedents and discuss the fact that we do not understand the meaning of the words and what they pertain to, but that is a red herring. The bottom line is that we actually know in medicine what this means. There is no question in medicine what this means, no question at all.

Therefore, we need to start thinking about the people who live in our country and what kind of government and Parliament we are that we would allow people to live in fear with discrimination and without access to the basic human rights that other people have. I support this bill and I will be voting for it to go to committee.

[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.

[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.

[The Acting Speaker, Barry Devolin]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

On division.

[The Acting Speaker, Barry Devolin]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Justice and Human Rights.

(Motion agreed to, bill read the second time and referred to a committee)