Bill C-389 (Historical)

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

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

Canadian Human Rights Act

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

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

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

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

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

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

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

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

[Joyce Murray, Liberal, Vancouver Quadra, BC]

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

As the Ontario Human Rights Commission has noted:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These three changes are unnecessary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Human Rights

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

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

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

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

Trans Day of Remembrance

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

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

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

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

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

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

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

Justice and Human Rights

[Ed Fast, Conservative, Abbotsford, BC]

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

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.

Canadian Human Rights Act

[Thomas Mulcair, NDP, Outremont, QC]

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

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

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

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

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

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

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

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

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

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