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.

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.