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

This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.

This bill was previously introduced in the 41st Parliament, 1st Session.

Sponsor

Randall Garrison  NDP

Introduced as a private member’s bill. (These don’t often become law.)

Status

Considering committee report (Senate), as of June 9, 2015
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination.

It also amends the Criminal Code to include gender identity as a distinguishing characteristic protected under section 318 and as an aggravating circumstance to be taken into consideration under section 718.2 at the time of sentencing.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

March 20, 2013 Passed That the Bill be now read a third time and do pass.
March 20, 2013 Passed That Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), {as amended}, be concurred in at report stage [with a further amendment/with further amendments].
March 20, 2013 Passed That Bill C-279, in Clause 1, be amended by adding after line 21 on page 1 the following: “(2) In this section, “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.”
March 20, 2013 Passed That Bill C-279 be amended by replacing the long title on page 1 with the following: “An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity)”
June 6, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.

Private Members' BusinessOpening Of The Second Session Of The 41St Parliament

October 16th, 2013 / 6:10 p.m.
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Conservative

The Speaker Conservative Andrew Scheer

I would like to make a statement concerning private members' business.

As hon. members know, our Standing Orders provide for the continuance of private members’ business from session to session within a Parliament.

In practical terms, this means that notwithstanding prorogation, the list for the consideration of private members' business established at the beginning of the 41st Parliament shall continue for the duration of this Parliament.

As such, pursuant to Standing Order 86.1, all items of private members' business originating in the House of Commons that were listed on the Order Paper at the conclusion of the previous session are automatically reinstated to the Order Paper and shall be deemed to have been considered and approved at all stages completed at the time of prorogation.

All items will keep the same number as in the first session of the 41st Parliament. More specifically, all bills and motions standing on the list of items outside the order of precedence shall continue to stand. Bills that had met the notice requirement and were printed in the Order Paper but had not yet been introduced will be republished on the Order Paper under the heading “Introduction of Private Members' Bills”. Bills that had not yet been published on the order paper need to be recertified by the Office of the Law Clerk and Parliamentary Counsel and be resubmitted for publication on the notice paper.

Of course all items in the order of precedence remain on the order of precedence or, as the case may be, are referred to the appropriate committee or sent to the Senate.

Specifically, at prorogation there were three private members' bills originating in the House of Commons adopted at second reading and referred to committee.

Therefore, pursuant to Standing Order 86.1, Bill C-458, an act respecting a national charities week and to amend the Income Tax Act (charitable and other gifts) is deemed referred to the Standing Committee on Finance.

Bill C-478, An Act to amend the Criminal Code (increasing parole ineligibility), is deemed referred to the Standing Committee on Justice and Human Rights.

Bill C-489, an act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders) is deemed referred to the Standing Committee on Justice and Human Rights.

Accordingly, pursuant to Standing Order 97.1, committees will be required to report on each of these reinstated private members’ bills within 60 sitting days of this statement.

In addition, prior to prorogation, nine private members' bills originating in the House of Commons had been read the third time and passed. Therefore, pursuant to Standing Order 86.1, the following bills are deemed adopted at all stages and passed by the House: Bill C-217, an act to amend the Criminal Code (mischief relating to war memorials); Bill C-266, an act to establish Pope John Paul II day; Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity); Bill C-290, an act to amend the Criminal Code (sports betting); Bill C-314, an act respecting the awareness of screening among women with dense breast tissue; Bill C-350, an act to amend the Corrections and Conditional Release Act (accountability of offenders); Bill C-377, an act to amend the Income Tax Act (requirements for labour organizations); Bill C-394, an act to amend the Criminal Code and the National Defence Act (criminal organization recruitment); and Bill C-444, an act to amend the Criminal Code (personating peace officer or public officer).

Accordingly, a message will be sent to the Senate to inform it that this House has adopted these nine bills.

Consideration of private members’ business will start on Thursday, October 17, 2013.

As members may be aware, among the items in the order of precedence or deemed referred to committee, there are four bills standing in the name of members recently appointed as parliamentary secretaries who, by virtue of their office, are not eligible to propose items during the consideration of private members' business.

Bill C-511, an act to amend the Federal-Provincial Fiscal Arrangements Act (period of residence) and Bill C-517, an act to amend the Criminal Code (trafficking in persons) were awaiting debate at second reading in the order of precedence at the time of prorogation.

Bill C-458, An Act respecting a National Charities Week and to amend the Income Tax Act (charitable and other gifts), and Bill C-478, An Act to amend the Criminal Code (increasing parole ineligibility), were in committee at the time of prorogation and, as stated earlier, have been returned there.

This is in keeping with the principle expressed at pages 550-551 and 1125 of the House of Commons Procedure and Practice, second edition, which provides that bills remain on the order of precedence since they are in the possession of the House and only the House can take further decision on them.

These items are therefore without eligible sponsors but remain in the possession of the House or its committees. If no action is taken, at the appropriate time these items will eventually be dropped from the Order Paper, pursuant to Standing Order 94(2)(c).

Hon. members will find at their desks a detailed explanatory note about private members’ business. I trust that these measures will assist the House in understanding how private members' business will be conducted in this session. The table officers are available to answer any questions members may have.

I thank all members for their attention.

Gender IdentityPetitionsRoutine Proceedings

March 20th, 2013 / 3:15 p.m.
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Conservative

Rob Anders Conservative Calgary West, AB

Mr. Speaker, I stand today to present, on behalf of thousands of people who sent these to my office, petitions in opposition to Bill C-279, otherwise known as “the bathroom bill”, that would give transgendered men access to women's public washroom facilities. These constituents feel that it is the duty of the House of Commons to protect and safeguard our children from any exposure and harm that would come from giving a man access to women's public washroom facilities. I present thousands of signatures on behalf of the riding in Calgary West, and I know that there are many others that have gone to other members in this place.

Canadian Human Rights ActPrivate Members' Business

March 7th, 2013 / 5:30 p.m.
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Cypress Hills—Grasslands Saskatchewan

Conservative

David Anderson ConservativeParliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board

Mr. Speaker, it is good to be back today to speak on this issue.

It is interesting to watch the movement on the other side on the bill as those members have brought it back to the House and then desperately tried to amend it in order to make it acceptable to parliamentarians. Now they have moved it up, probably to get the bill into debate and into play before Canadians realize that it is actually here and that Canadians are allowed to ask the questions they have about it.

I want to state, as I did last time, that I am cognizant of the need to protect all Canadians from discrimination and hate crimes. I am proud of the fact that Canada is recognized internationally as a country that is deeply committed to the principle of human rights, but I would argue that the bill does not achieve that end.

As I mentioned last time, I would argue that Bill C-279 is unnecessary. We talked about the jurisprudence around the bill, the fact that the issues are already covered by jurisprudence, and that there is no agreement even at the UN on this issue.

We also spent some time talking about the fact that the main problem with the bill is that it is undefined. It almost seems that there is an attempt to confuse people in the way the bill has been presented.

There were no definitions offered for either gender identity or gender expression. The member has come back now and dropped “gender expression” and tried to redefine “gender identity” in a way that ties it to people's feelings. As I explained last time, that is not adequate, and it seems to have been done deliberately. The author of the bill has already declared the intention that

Once gender identity is in the Human Rights Code, the courts and human rights commissions will interpret what that means.

I think there is a new argument, a new confusion, around the bill. I have heard some people now saying that it is about sexual orientation. However, as we know, the code and the act already cover sexual orientation. They have been included there for some time.

One concern is that the bill is unsettling to people. The author has really refused to talk about or deal with the potential implications and consequences of such wide-ranging and undefined legislation. My constituents, I have to say, do not see this as benign legislation because of the things we just talked about, in particular the fact that there is such a lack of definitional framework to the bill. What I am getting from my riding is that the constituents oppose it, but they do have some questions that I will pose on their behalf.

The first question to the member opposite is this: does he actually believe that there is no one who will try to abuse the situation that would be created by his deliberately vague legislative agenda?

That is what the member seemed to be saying when he spoke, but he has refused to address this criticism in his speech. It remains out there in the public's mind, and I have heard that from my constituents.

Second, especially with regard to minors and adults, my constituents have questions about the power relationship that would exist in what in the past were basically private facilities that would now become very public facilities. They are asking what their obligations and rights would be. The failure to address these issues is really why the bill has become known as the “bathroom bill”. I do not think we can just brush off people's concerns.

The legislation is poorly written, it does not deal with the issue the member addresses and it would give the opportunity for some to take advantage of the situation, as not everyone's motives are selfless. I think we need to be sure. We should not be naive. These questions need to be answered.

We know that the bill is not necessary, as jurisprudence already covers these issues. We know that the bill is not well defined, and that is the major problem with it. It is not well defined even with the amendments. We know that the consequences of the bill are not well understood. Therefore, it is time to defeat this poorly researched, poorly written and poorly presented bill.

Canadian Human Rights ActPrivate Members' Business

March 7th, 2013 / 5:35 p.m.
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Liberal

Sean Casey Liberal Charlottetown, PE

Mr. Speaker, I am honoured this evening to speak to Bill C-279, a bill that seeks to extend the scope of human rights legislation to include transgendered Canadians. I applaud the members who have led the charge in this regard, including the member for Vancouver Centre, the member for Burnaby—Douglas, as well as the member for Esquimalt—Juan de Fuca in whose name this bill resides.

I will summarize briefly the thrust of the bill. Bill C-279 seeks to amend the Canadian Human Rights Act to add gender identity as prohibited grounds of discrimination. This is important because today, when transgendered individuals seek to allege they have been discriminated against, they have to fit their claim within the definition of either discrimination on the basis of sex or discrimination on the basis of disability. That is the state of the law at present. Bill C-279 also seeks to amend the Criminal Code with respect to hate speech to include gender identity and gender expression in the definition of what constitutes a recognizable group within the meaning of the code.

I support this bill and I do so without reservation. I acknowledge my colleague, the hon. member for Mount Royal, the former Attorney General and justice minister of Canada and an esteemed law professor. His interventions are always instructive. I certainly would not be able to improve upon them, and there are a couple that bear repeating.

The member for Mount Royal stated:

By adopting the amendments that have been proposed in Bill C-279, Parliament can send a strong message of support to transgendered Canadians, affirming their identity and acknowledging their struggles. Indeed, this legislation, again as my colleague from Esquimalt—Juan de Fuca pointed out, ensures that they will enjoy the legal protections accorded to other targeted groups.

The hon. member for Mount Royal went on to dispel the notion we just heard from the member opposite, that existing legislation already covers those who identify as transgendered, when he said:

Some members of the House have argued that Bill C-279 is unnecessary because transgendered people are already protected under the existing categories of sex and disability. With respect, this position is misinformed. First, gender identity and gender expression do not refer to biological sex or sexual orientation. Rather, the terms refer to an inner feeling of being male, female, both or neither. Second, gender identity and gender expression are not a disability. Rather, they are a sense of self and a source of identity. To confound gender identity and gender expression with sex and disability is to ignore the unique experiences of discrimination and disadvantage that are faced by transgendered Canadians.

The member continued:

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

So in the context of this debate, which has at times been a vigorous debate and at times a debate with moments unworthy of this House, there are some who, contrary to evidence and facts, choose another path to make their case. They choose fear and innuendo, all the while claiming a moral high ground. They claim for themselves exclusivity to that which is right and decent, using language that is hurtful and demeaning. How can anyone claim to be of good heart or claim the virtue of “love thy neighbour” yet reduce this bill to gutter language when they call it “the bathroom bill”? It is an entirely offensive and erroneous implication to suggest that transgendered people would be lurking late at night in bathrooms should this bill pass.

These purveyors of fear and intolerance are often the same people who claim same-sex marriage would lead to the downfall of marriage or that same-sex marriage would lead to rampant polygamy. It was pure nonsense then and it is pure nonsense today.

In contrast to these voices of intolerance, we have the work of organizations like the Canadian Professional Association for Transgender Health. It has done excellent work using facts and evidence as the basis of this debate. This is what it said with respect to Bill C-279 and the so-called bathroom question:

It is also important to recognize that the provisions...will not create new or special rights for transgender individuals, and in particular, it will not change the law with respect to washroom use. Rather, its enactment will explicitly confirm the law’s protection of the safety and human dignity of everyone in Canada regardless of gender identity or gender expression. It will also ensure that gender variant people’s right to participate in, and contribute to, Canadian society and economic life are not hampered by ignorance, prejudice, hatred and violence.

Not too long ago, I had the opportunity to listen to interventions by Conservative MPs, whose passion and thoughtfulness at the justice committee was encouraging. I first acknowledge the member for Delta—Richmond East, now the Associate Minister of National Defence. She should be applauded for her courage in defending the rights of transgender Canadians at the justice committee. One can only imagine her embarrassment, however, when a fellow Conservative MP, a non-member of the justice committee, was sent by the Prime Minister's office for the sole purpose of hijacking the meeting in order to filibuster and prevent this important bill from proceeding through the committee. In the face of this intervention and filibuster, the Conservative member for Delta—Richmond East held firm to her convictions in supporting Bill C-279.

The second individual I would like to acknowledge is the Conservative member for Saint Boniface. She is a rare ray of light in this debate, using reason to construct an argument that is worthy of the House. Unlike the vast majority of her Conservative colleagues, she supports protecting transgender Canadians. Allow me to highlight one quote by the member for Saint Boniface:

To give hope and opportunity to transgendered people through a bill like this, to give them hope in knowing they will have clarity every single time they report, every single time they want to go before a commission or a tribunal, that gender identity means they can be a transgender individual and not have to rely on sex, which to most people means plumbing, or disability, which is not what many of them feel, I think is imperative. I think it's imperative that this move forward. I think it's imperative that we, as Canadians and parliamentarians, embrace the notion that we are inviting other Canadians to feel the sense of belonging that this bill will give them.

The march to full equality is never easy. There will always be voices opposed to progress and to full equality. Those voices of intolerance are now on the fringe of society, where they belong. One need only reflect on a time when women were not allowed to vote and treated like second-class citizens, if even citizens at all, or we think of the great injustice inflicted on black people who struggled and, arguably, still struggle for the justice and equal treatment they deserve by virtue of their inherent dignity, or we think of our gay and lesbian brothers and sisters and how they were treated, so marginalized and shunned. Many of those who oppose same-sex marriage are the same people who now oppose this bill.

Let me close by suggesting this. If the Conservatives use their majority to defeat this bill, they may very well take comfort in the victory of intolerance over justice, but the fight for equality and dignity will continue. Those who are vulnerable to hate speech, marginalization and discrimination in the workplace because they are transgendered will one day, despite the Conservative government, get the protection they deserve as full and equal citizens of this great country.

Canadian Human Rights ActPrivate Members' Business

March 7th, 2013 / 5:55 p.m.
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Calgary Centre-North Alberta

Conservative

Michelle Rempel ConservativeParliamentary Secretary to the Minister of the Environment

Mr. Speaker, I speak today to Bill C-279. I would like to thank the member for Halifax for some of her comments here today.

I have had the privilege of representing constituents in Calgary Centre North for nearly two years now. In this time, I have had the opportunity to review many pieces of legislation and debate both their merits and their flaws. As I have done so, I have been struck that oftentimes, we have to evaluate two components of legislation: the why of the bill and the how of the issue. Many times we disagree, sometimes vociferously, about the why. We have differing political ideology, thoughts on how public policy should be best utilized and thoughts on how this country should be governed. It is in this context that I first speak to the why of this bill.

After reading testimony from witnesses during this iteration of the bill and in the last Parliament, and after consulting with those who work with members of the trans community and members of the community itself, I am frankly shocked by the discrimination this group of people faces.

The member for Esquimalt—Juan de Fuca and witnesses to this bill at committee, and indeed members here today, have given this House so many examples that I cannot reiterate them. Suffice it to say that I would offer that the summary of evidence could read as follows: the trans community in Canada has, on frequent occasions, experienced elevated levels of sexual violence committed against members; frequent workplace discrimination and job loss based on gender; lack of clarity on health care provisions and sometimes access to health care; lack of clarity on processes related to obtaining identification documents; bullying in places of employment and educational institutions; discrimination in accessing housing accommodation; and numerous other incidents of discrimination.

Most importantly, they live with the consequences of these acts of non-compassion, of false assumptions that, simply by virtue of their state, they are sexually promiscuous, or more ludicrously, that they are criminal. In this, the trans community experiences very high levels of both depression and suicide. This is not acceptable to me, and this is the why of this bill. It is my hope that no one in the House, either on this side or the other side, could read the testimony, could talk to people in the community, and argue that this is acceptable or tolerable in our country.

The question set upon us as legislators is the how. How do we prevent these situations from occurring?

I have spent a lot of time on the how. I found that this bill seeks to address the how by addressing the following assumption, using the language of the member for Esquimalt—Juan de Fuca during the bill review at the Standing Committee on Justice, that “transgendered Canadians do not enjoy the same protection of their rights as other Canadians”.

This is a very serious charge that is worthy of study, as the ideas and values that are the heart of how our country operates, the freedoms it affords to all groups to worship without persecution, to seek prosperity in one's field of work, to choose whom we love, and to speak with conviction on issues that impact our communities, are all based on the assumption that Canadians have equality of rights in freedom of expression and can do so without the threat of discrimination or violence to their person. However, to assess whether this bill provides an adequate how, I first evaluated the validity of this assumption.

The member for Esquimalt—Juan de Fuca had an exchange with the member for Edmonton—St. Albert at justice committee about this assumption. The member for Edmonton—St. Albert said:

Except now that the Canada tribunal has emphatically stated that there is no longer any doubt, I would suggest to you that your first hurdle has been cleared by precedent... There is now case law that supports the proposition that individuals who have a genuine gender identity disorder are entitled to human rights protection.

There have been numerous examples given in the House and at committee of case law that shows that this provision exists. I understand the member for Halifax when she says that she wants to see herself in that human rights bill. The case law does exist to show that it is there.

Mr. Ian Fine, the acting secretary of the human rights commission, stated the following, “the commission, the tribunal, and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act”. Having said that, he also stated that “adding the grounds of gender identity and gender expression to the [Canadian Human Rights Act] would make the protection” of the transgender community explicit. The rationale that he stated for this necessity was as follows: “This would promote acceptance and send a message that everyone in Canada has the right to be treated with equality, dignity, and respect”. I do not disagree with the latter part of that statement. It gave me quite a bit of pause for thought, and that has been at the heart of my deliberations on the bill.

It could be argued that this is contradictory in some regard. Mr. Fine previously made a statement that the tribunal, the commission and the courts do view gender identity and expression as protected by the Canadian Human Rights Act, and that somehow even though this protection exists, it does not send enough of a message to Canadians on this issue. While this contradiction may be well intentioned, I feel there are many examples where serious issues arise when legislators equate symbolism with social action or when we inadvertently dilute the role of social activists by being reactive to an issue with legislative symbolism.

The member for Halifax has my playbook because she stole my speech on International Women's Rights Day. I would like to speak on the social action process for the struggle for female gender equality.

Even after laws were passed to enshrine women's gender equality within our laws, the member is right; we did not see those changes happen overnight. In fact, lawsuits still had to be fought and won, offenders had to be charged, battles had to be waged to change workplace codes of conduct, and awareness training programs had to be crafted. I would like to highlight that in the British parliament, even after women had been elected, as little time ago as 1993, a woman in this place did not make it to a vote because she could not find a bathroom.

I have also stood in the House to highlight that sexism does happen with frequency in this country in spite of these laws. I am not trying to imply that the struggle for trans rights is directly concurrent with the struggle for women's rights, but in my deliberations on the bill, I found there is a burden of evidence which suggests that case law does exist to provide the trans community with protection under the law against discrimination and violence. Here is my concern. In this fact, the how of this legislation may not achieve the ultimate solution to the why, in that it may place too much of an emphasis on symbolism over direct social action.

As always, the member for Halifax makes a very compelling argument.

A question that I have struggled with in evaluating the validity of the bill is what guidance we, as legislators, are truly giving judicial organizations in how to carry out the intentions of Parliament in this regard. The way the term “gender identity” is defined in the preamble of the bill, even with the amendments, played a large part in my decision to vote to study the bill further. I am still not entirely clear on how parliamentarians, the human rights tribunal, criminal courts, sentencing judges and the broader community at large will be required to interpret this term.

I am also not clear on the following key issues. What constitutes the scope of discrimination against someone based on his or her gender identity in the eyes of my colleagues, as legislators, of members of the trans community and the courts? What kind of speech based on someone's gender identity could be considered hate propaganda? What does it mean in defined terms to have a bias based on a person's deeply held internal and individual experience of gender?

Admittedly, the evaluation of this legislation has been very difficult for me because I believe that the why it presents is concerning. Any time we as parliamentarians are faced with clear situations where fear of differences or lack of awareness allow hatred to mushroom, we have to take note and ask ourselves what role we play in breaking down these barriers. This legislation has opened my eyes to the plight of a group of people in this country who experience extreme discrimination. Both sides of this debate should agree that equality and protection against harm are two fundamental values that all Canadians of any gender, any age, any background are entitled to.

However, as legislators we are also tasked with deciding if the proposed legislation is sound. Given the lack of clarity that I found in the bill, I do have concern about its viability and if the how will achieve what the community and Canadians hope for in addressing the why.

Canadian Human Rights ActPrivate Members' Business

March 7th, 2013 / 6:05 p.m.
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NDP

Raymond Côté NDP Beauport—Limoilou, QC

Mr. Speaker, it is a great privilege and pleasure for me to speak this evening about the hon. member for Esquimalt—Juan de Fuca's bill, particularly since I had the pleasure of examining and fine-tuning it with my Standing Committee on Justice and Human Rights colleagues.

It was a very intense experience. We had to establish the parameters for the debate on the bill, which seeks to amend the Criminal Code and the Canadian Human Rights Act.

First, it is important to point out that gender identity and gender expression are basically a state of being, or in other words, something that cannot be fully explained outside the personal experience of the individual in that state.

I am well aware that some of my colleagues are somewhat reluctant to deal with differences related to gender identity and gender expression. They may even feel uncomfortable or unable to do so as a result of their own personal experiences.

I would like to use my own experience growing up as a heterosexual in a very common family situation as an example. Like any individual in our society, at some point I had to deal with my gender identity and gender expression. We have no choice about this state of being. We cannot really change it and we have to live with it, yet we still have to make decisions dictated by societal conditions and our ability to deal with those conditions.

From this perspective, for certain groups in our society, it may be difficult, if not practically impossible, to deal with one's gender identity and expression and the decisions associated with that without a certain amount of suffering and a feeling of helplessness.

I would like to come back to my personal experience. I am 46 years old, and I had my late father as a role model. If he were still alive, he would be 80 years old. He was a man from a certain era who quietly shouldered his responsibilities, keeping many questions and doubts, as well as his share of heartache, to himself. That was the example I had, and I had to decide whether or not to follow it. I also had to determine how far I was prepared to go and how much of his legacy I was prepared to accept.

That sometimes put me in uncomfortable situations as a heterosexual. It can be difficult to be at ease with being a man. We are told that real men do not cry, that they shoulder their responsibilities, that they should take their place in society, get a job, have children and have a nice little family. Having to conform can be a heavy burden, especially as society evolves. We experienced that in Quebec, with the upheaval of the Quiet Revolution.

Sometimes, our grandparents' reference points, which seemed to be set in stone, are jarred or even swept away by compelling movements that force people to question themselves and face a reality that is completely different from everything they have every known.

We all experience frustrations in life. Some people, however, not only experience frustrations, but also face suffering because of conditions in society and repression by intolerant groups that have no place in a society that prides itself on freedom and on giving every individual an equal opportunity and an equal place in society.

We should not hide the fact that the testimony we heard in the Standing Committee on Justice and Human Rights was shocking. I would like to repeat part of what the member for Calgary Centre-North said. At times, we were outraged and at times we were simply pained by their stories. I cannot describe how it felt to hear people testify about the humiliation they endured in everyday situations that I, as a heterosexual man, could never have imagined.

At times, an overwhelming sense of outrage came over me, and I had a hard time accepting the systematic obstruction, the underhanded attempts to obstruct the committee's normal work in order to gain the upper hand in this debate.

All of my colleagues in the House will agree that human dignity is non-negotiable. It is very simple. I would even add that the sanctity of human life is something we value so highly—at least we should—that we cannot put a price on defending it. We must never tolerate pettiness or compromise.

I have spoken about my faith before, and I want to share some of the Catholic Church's social doctrine. It very clearly states that every human being has the unalienable right to exist and to have dignity within society. That represents a tremendous challenge, because it means that we must allow the right to be different, the right to a certain degree of dissidence, the right to go against the established norm and the right to go against the stream.

This also means that people like me, who have the privilege to have a favourable—even comfortable—place in society, must make concessions. I am very pleased to be able to reach out to a group in our society whose rights are too easily violated and to offer them some progress. It may not be perfect, but it is still progress.

With respect to the work in committee, it is no secret that transgender and transsexual individuals too often face problems with the courts. I do not want the courts to determine their rights. That is my role and my duty as legislator, and that is what I want to do, here in this House, with Bill C-279.

Canadian Human Rights ActPrivate Members' Business

March 7th, 2013 / 6:15 p.m.
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NDP

Jinny Sims NDP Newton—North Delta, BC

Mr. Speaker, it is a privilege today to rise and speak in support of Bill C-279. The bill would add gender identity and gender expression to the Canadian Human Rights Act, section 2, as prohibited grounds for discrimination. It would also amend the Criminal Code to include gender identity and gender expression as distinguishing characteristics protected under section 318, and as aggravating circumstances to be taken into consideration under section 718.2, hate crimes, at the time of sentencing.

However, before I go into more detail on the bill, I want to take a moment to acknowledge the stellar speeches I have heard tonight. My colleague from Charlottetown captured what the legislation is about, but also identified how many of the fears are baseless and that a lot of flames are being fanned to scare people and make them not feel right.

My colleague from Halifax, from a legal point of view, but more from the emotional point of view, very importantly pointed out to us that we are not talking about giving people rights here; we are talking about acknowledging in legislation, laws that we are saying they already have. I have not heard anyone in the House say that transgendered people do not have these protections. Therefore, let us make them explicit by putting them in the Criminal Code and the Human Rights Act.

My colleague also went on to talk about, and we could see it in her presentation, the human toll it takes when we have discrimination and we have a minority group of people in our society who do not feel reflected in law. They have to find a corner that they can hide in or that they can fit in. That is not how we are as Canadians.

I also liked the struggle of my colleague across the way, the member for Calgary Centre North. What was so moving about her presentation was that she identified beautifully the very reason that we need this legislation. She felt, when she heard and read the testimonies, the pain and anguish that some Canadians are going through because of gender identity issues.

After listening to these three members, I cannot imagine anyone in the House being opposed to the legislation. We disagree in the House on all kinds of things, on the budget, on some pieces of legislation, but surely when it comes to fundamental rights and protections for every Canadian, no matter what race or gender, that is one thing we can all agree is fundamentally Canadian and the right thing to do.

My colleague articulated beautifully the struggle that women have had. When we look at history, it was not that long ago that women were not recognized as persons. I challenge anyone in the room to think that we could be sitting in the House as women representing our ridings if that legislation had not been enacted and we had not been recognized as persons. That did not automatically get rid of all the discrimination and all the barriers and glass ceilings that exist. However, what it did do was to open up a pathway, and it took away the greatest barrier, which was to not be recognized at all.

This bill, in turn, would do exactly that. It says to the members of our transgendered community that they are part of this society and they are explicit in our human rights code. They do not have to hide, nor do they have to go looking to see which corner of the human rights code they fit in, nor do they have to see if there is a judge who is going to be favouring looking for a spot or fear a day when the judiciary could turn around and say it is not explicit and cannot be found in here, so they are not covered. It is to avoid that very situation that we have to have legislation like this.

In our human rights code, we identify race, gender and many other things. This bill would add another specificity to the word “gender”. It would identify it to include Canadian society.

I do not know if members are aware, but I was a classroom teacher for a very long time. In that role, one of the things I discovered very early on in my teaching is that for children to be successful in life, they have to see themselves reflected, but they also have to feel themselves protected. When we have transgender young people in our community who do not feel protected explicitly in our law, we leave them vulnerable.

I do not have to explain and draw graphic pictures in words of the kind of discrimination many face. I am not saying this legislation would take it away, but when this legislation is passed, it would send a message to employers and to the very few Canadians who may have a tendency not to be so inclusive and not to be so accepting. There are very few of those in Canada, I find, but when it comes to imposing hurt on a person, one person can do a lot of damage. It is for that reason that we must have this law and this kind of explicit protection in our legislation.

As we sit in here, words are important, and words in legislation become even more important. I heard a colleague today speak from a legal perspective that I had not thought of, describing all the different areas the different judges have had to explore to see where discrimination on gender identity and gender expression could be covered under the human rights code. They actually have to struggle to find those areas, and if they have to struggle to find them, our human rights code needs to be made more explicit.

Once again I acknowledge the wonderful speeches made by my colleagues from Halifax and Calgary Centre—North and the emotion and empathy I heard from my colleague from Charlottetown. I am sure her colleagues on that side of the aisle heard the pain that she experienced as she chose her words very carefully and will see that it is time for this House of Commons to take action.

It would be fitting if we could all vote for this measure unanimously, especially when we are on the eve of International Women's Day. We would celebrate the fact that we have enshrined those rights into our legislation and into human rights.

I appeal to my colleagues across the aisle to vote for this unanimously. I know they are going to, because they are very caring Canadians.

Speaker's RulingCanadian Human Rights ActPrivate Members' Business

February 27th, 2013 / 6:35 p.m.
See context

Conservative

The Speaker Conservative Andrew Scheer

There are nine motions standing on the notice paper for the report stage of the member for Esquimalt—Juan de Fuca's Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

While it is not usual for the Chair to provide reasons for the selection of report stage motions, in this case, I have decided to do so, as I have received a written submission from the hon. member for Esquimalt—Juan de Fuca outlining what he feels are exceptional circumstances surrounding the clause-by-clause consideration of the bill in committee.

As members know, consistent with the note to Standing Order 76.1(5), the Chair would not normally select motions that could have been presented in committee.

The hon. member who has submitted motions at report stage was also an active participant in the meeting scheduled for the clause-by-clause consideration of the bill by the Standing Committee on Justice and Human Rights. As such, it would appear that the amendments submitted by the member could have been proposed during the committee consideration of the bill. In the present case, however, there appear to be extenuating circumstances.

In his remarks, the member for Esquimalt—Juan de Fuca explained that during clause-by-clause consideration of the bill on December 6, 2012, the committee passed two amendments to the first clause of the text as well as the clause itself, as amended. He stated that the committee did not continue studying the bill.

Even the member for Esquimalt—Juan de Fuca's attempt to seek a 30-day extension for the consideration of Bill C-279 in committee was unsuccessful. As a result, clause-by-clause consideration of the bill did not proceed beyond the first clause, and pursuant to Standing Order 97.1, on December 10, 2012, the bill was deemed reported back to the House without amendment.

The Chair has had to rule on similar cases in the past, including one that came up on December 7, 2012—at page 13030 of the House of Commons Debates—regarding Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations). In that case, due to circumstances beyond its control, the committee was unable to complete its examination before the bill was deemed to have been reported without amendment pursuant to Standing Order 97.1. Accordingly, any amendments that had originally been submitted for the clause-by-clause examination of the bill in committee were submitted again at report stage. The Chair therefore selected those motions at report stage for debate, because it was clear that the members in question had attempted to propose their amendments in committee during the clause-by-clause examination of the bill.

In reviewing the sequence of events related to the bill now before the House, as well as the written submission from the member for Esquimalt—Juan de Fuca, I am satisfied that despite the efforts of the member to have his amendments considered by the committee, he was unable to do so before the bill was deemed reported back to the House.

Accordingly, Motions Nos. 1 to 9 have been selected for debate at report stage, and they will be grouped for debate and voted upon, according to the voting patterns available at the table.

I shall now propose Motions Nos. 1 to 9 to the House.

Motions in AmendmentCanadian Human Rights ActPrivate Members' Business

February 27th, 2013 / 6:50 p.m.
See context

Moncton—Riverview—Dieppe New Brunswick

Conservative

Robert Goguen ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, I am pleased to have this opportunity to comment on and contribute to the debate on Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

Bill C-279 has been studied by the Standing Committee on Justice and Human Rights. While at committee, the sponsor of Bill C-279, the member for Esquimalt—Juan de Fuca, proposed several amendments. He proposed to add only the term “gender identity” and not “gender expression” as a prohibited ground in the Canadian Human Rights Act and to the hate propaganda and aggravated sentencing provisions of the Criminal Code. He also proposed to add a definition of the term “gender identity” to the bill's preamble.

I would like to begin with a discussion of the proposed amendment to the Canadian Human Rights Act. In interpreting and applying this act, the Canadian Human Rights Tribunal has already accepted and considered several complaints brought by transsexuals on the ground of sex. In fact, the ground of sex in any discrimination law is interpreted broadly and has evolved over the years. It is usually understood to cover discrimination complaints based not just on sex, but also gender-related attributes, such as pregnancy, childbirth, and more recently, transsexualism. For those complaints brought by transsexuals, the tribunal has used the existing grounds already contained in the act.

I would like to give a few examples to illustrate my point. The Canadian Human Rights Tribunal decided one case involving a male-to-female transsexual who was incarcerated in a federal men's prison. This inmate brought a complaint before the Canadian Human Rights Tribunal alleging discrimination because the prison refused to continue her sex reassignment treatments and did not want to transfer her to a women's prison.

The tribunal dealt with this complaint under the ground of sex. In its decision, the tribunal stated, and I am quoting directly from the 2001 judgment of Kavanagh v. Correctional Services of Canada, which says there is no dispute “that discrimination on the basis of Transsexualism constitutes sex discrimination as well as discrimination on the basis of a disability”.

In another decision of the Canadian Human Rights Tribunal, from 2004, Montreuil v. National Bank of Canada, a male-to-female transsexual, who was in the process of transitioning and was dressing in women's clothing, was refused employment at a bank. Here again, the tribunal dealt with this complaint using the ground of sex, as the parties agreed. The tribunal member commented that “as a pre-operative transgendered person, the Complainant belonged to the group of persons who cannot be discriminated against on the basis of sex, under the Act”.

In a 2009 decision from the tribunal involving the same complainant, the Canadian Forces had refused the complainant's application for enrolment in the forces after determining that she had gender identity disorder. While the complaint was eventually dismissed by the tribunal, the tribunal member stated quite plainly that “discrimination on the basis of transsexualism is discrimination on the basis of sex or gender, as well as discrimination on the basis of disability”.

In deciding that transsexuals are already protected by our federal human rights law, the tribunal's approach is consistent with that taken by the provincial human rights tribunals that have found discrimination against transsexuals to be covered by the existing ground of sex.

I will mention one more decision to make my point that discrimination against transsexuals can and already has been addressed by the current law. This example comes from a discrimination complaint that made its way to the British Columbia Court of Appeal. In this case, a male-to-female transsexual was refused a volunteer position at a women's shelter and rape crisis centre. Once again, the tribunal dealt with the complaint using the ground of sex, and the Court of Appeal accepted this. This is the Vancouver Rape Relief Society v. Nixon case, which was decided in 2005.

As I have just described, all of these cases were dealt with using the ground of sex. This makes sense, as the existing prohibited grounds of discrimination are subject to interpretation by the tribunals and the courts. The ground of sex has been interpreted broadly, as I mentioned earlier, which is in keeping with how human rights protections are generally interpreted by courts and tribunals.

Using all of these examples, I wish to make the point that transsexuals facing discrimination in federally regulated workplaces and in accessing federally regulated services are in fact already protected by the current law.

For similar reasons, we may wish to ask ourselves whether it is necessary to add these grounds to the sentencing provisions of the Criminal Code. The section in question lists a number of deemed aggravating circumstances on sentencing, including evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or any other similar factor. Again, the list includes sex, and it also refers to any other similar factor. Consequently, judges may already be able to impose longer sentences for hate crimes against transsexual persons in appropriate circumstances.

If transsexuals are already protected from discrimination and are covered by the open-ended language of the sentencing provisions, we must ask ourselves this. What is the purpose of adding these terms?

It may be a largely symbolic or declarative purpose. In that case, on what basis do we decide to symbolically add one group and not others? Grounds of discrimination are not typically stated generally, like sex, race and religion. There are many different groups covered by these grounds. The Canadian Human Rights Act and the Criminal Code do not break these grounds into specific groups, which would involve selecting some groups over others for specific mention. If it turns out that, for example, people are being discriminated against on the basis of certain religious observance, then the general ground of religion is there to cover the situation. It would be inappropriate for Parliament to extend the list of grounds by adding particular religious observance.

If people with a particular disability are facing discrimination, then the ground of disability is in the act and can be used to protect these individuals. If we began to add specific groups, there might be no end to this kind of law reform and it could go on and on.

As I have said, the ground of sex is already in the act and has been used to address instances of discrimination against this group. The addition of gender identity is therefore unnecessary.

However, if its addition is not purely symbolic, as the sponsor tells us it is not, then we would ask ourselves this. If this ground were to be added to the Canadian Human Rights Act, what sorts of new complaints of discrimination will be brought before the Canadian Human Rights Commission and Tribunal? How will employers know what kinds of workplace behaviour and expression would be prohibited? The answers to these questions are not clear to me and they are questions that we should carefully consider.

As I have explained, I believe the amendments proposed by Bill C-279 are unnecessary. For these reasons, I will be opposing Bill C-279.

Motions in AmendmentCanadian Human Rights ActPrivate Members' Business

February 27th, 2013 / 7 p.m.
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Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I rise today to address amendments to Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression) to protect transgender Canadians. In its original form, it did this by adding “gender identity” and “gender expression” to both statutes. As I stated the last time the bill was in the House, I support this important effort, which will have not only symbolic but substantive and practical effects, to provide human rights protections to groups that, for example, the Ontario Human Rights Commission has characterized as being as “disadvantaged and disenfranchised” as any in our society today.

We are presented now with the unusual yet welcome opportunity to reconsider amendments to Bill C-279 that were raised at committee. These amendments, which remove “gender expression” and add an agreed upon definition of “gender identity”, were the product of a compromise solution, agreed to to maintain the support of the 15 Conservatives who joined with the opposition and voted for the bill at second reading. While I had hoped that both “gender identity” and “gender expression” would remain included in the bill, I appreciate the need for compromise in order to make progress on this critical issue. On that note, I would like to commend the sponsor of this legislation, the hon. member for Esquimalt—Juan de Fuca, for the spirit of co-operation he has maintained throughout this process.

With respect to the amendments that add a definition of gender identity, I welcome the fact that the chosen definition makes explicit reference to the internationally recognized Yogyakarta Principles. While these principles are not themselves binding international law, they were developed by some of the world's foremost experts on international human rights law and are intended to serve as an interpretive aid to human rights treaties. As an international law scholar myself, I am always pleased to see us referencing elements of internationally recognized principles in our own domestic legislation.

As I mentioned with respect to the exclusion of “gender expression”, it was initially my preference that both terms remain in the bill. Again, I am cognizant of the possibility that even in the absence of “gender expression”, the term “gender identity” might, through case law and through an appreciation of travaux préparatoires, eventually come to encompass part or all that would have been protected by the former.

All things considered, the amendments in question today are reasonable given that Parliament would still be taking a significant step forward with respect to protecting the rights of transgendered Canadians. As of now, these individuals can only exercise their rights under the Canadian Human Rights Act by advancing a claim under the prohibited grounds of sex and/or disability, as the parliamentary secretary himself acknowledged. To be clear, tribunals do hear the cases of transgendered Canadians, but such claims are complex and costly and rely on grounds, such as in the case of disability, that may themselves be highly offensive to the claimants themselves.

Some might ask why this is necessary legislation if transgendered individuals already benefit from such protections, which is basically the query and complaint put forward by the parliamentary secretary. Besides the symbolic value of recognizing this group in statute, Bill C-279 produces three substantive and practical effects of note. First, the Canadian Human Rights Commission would begin keeping statistics on incidents of discrimination targeting transgendered individuals. Second, the commission would begin raising awareness of transgender issues in its communications. Third, public officials would begin receiving briefings and training on the matter. This is, of course, in addition to the most important change offered by the bill, the offer of a clear and explicit human rights recourse to transgendered Canadians, not only in that it provides an expressed protection for transgendered people but in that it provides an effective remedy. This is something that cannot be marginalized or ignored.

There is precedent for the use of the term “gender identity” in Canadian, provincial as well as international contexts, notably the United Nations declaration on sexual orientation and gender identity, which Canada signed in 2008 and what I mentioned earlier, the internationally recognized Yogyakarta Principles.

In a word, I believe that this legislation would better ensure that transgendered Canadians enjoy the same equality of opportunity and freedom from discrimination as all other Canadians, as the member for Esquimalt—Juan de Fuca has so aptly affirmed and demonstrated in his remarks and in his work throughout this process.

However, it bears pointing out that we are in this rare situation today of reconsidering amendments because Conservatives on the justice committee engaged in a concerted and regrettable effort to thwart debate at the clause-by-clause stage. Indeed, the intention was clearly either to obfuscate the subject and spirit of the bill or, if nothing else, to torpedo the compromise arranged by the mover.

To start, they came with their own amendments, including a handful that only reinforced the status quo formula of “sex” and “disability”. Then there was a frivolous amendment exempting official Canadian sports authorities from the provisions of the bill, as if to contain some fictional mass of men trying to compete in women's sports, and vice versa. Finally, there was an out-of-context amendment that sought to ensure that no part of the Canadian Human Rights Act could infringe upon the rights of aboriginal peoples. While I firmly believe that we should only enact legislation that is mindful of the rights of Canada's aboriginal peoples, I found there was no reason to codify this specific protection into the act, as the charter supersedes any statutory act, which is clearly set forth in section 52 of the Constitution Act. It appeared that this, too, was a diversionary item.

Despite the tactics of diversion and delay, the compromise could still have been implemented at committee. With the support of one of the 15 Conservatives who voted for the bill at second reading, whom we should credit for open-mindedness, the committee accepted the amendment we are reconsidering today to remove “gender expression”, rendering several other Conservative alternatives inadmissible. Unfortunately, this procedural oversight by the Conservatives who were opposed to the bill spurred them to engage in a filibuster, behaviour which the Speaker has obviously himself acknowledged, given his decision today. Hopefully, we can now conclude the amendment process with an honest debate on the merits.

I would like to once again remind members of what is at stake with regard to this bill. To quote Mr. Justice La Forest of the Supreme Court of Canada at the time, “gender identity” must be included as a protected ground in the Canadian Human Rights Act because, “To leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issues to remain invisible”. We should also not disregard the history associated with this legislation, which has been introduced seven times since 2005. It was most notably passed by the House in early 2011, only to die on the Senate floor following the dissolution of Parliament that same year.

Today I urge my colleagues to not let this be another failed attempt at establishing equality and fairness for transgendered Canadians. The time to act is now.

Motions in AmendmentCanadian Human Rights ActPrivate Members' Business

February 27th, 2013 / 7:05 p.m.
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NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

Mr. Speaker, it is a great pleasure tonight to rise and show my very strong support for Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression). I will speak to the amendments as well as the general bill in my speech tonight and the shorter form as it is often called, “the gender identity bill”.

It seems very apt to be speaking to the bill this evening, on the very day that tens of thousands of people across Canada are joining together to reduce bullying. We have had the famous Pink Shirt Day today, when people from all communities across Canada are joining hands and saying that this is something we must reduce, that it is something that is taking a terrible toll on our neighbourhoods and in our communities where we live and we have to do something to stop that.

With this bill, we are talking about making the world a better place by taking steps to protect those whom others abuse. The bill has been a long time coming but it is well worth supporting, especially with the amendments have proposed.

I am disappointed that some members on the other side are opposing the bill, as stated tonight, and I think we will hear it in other speeches. Their statements somewhat misrepresent the views of a number of members within the Conservative caucus, including the Minister of Finance who voted to support the bill at second reading. Where their arguments are often being masked in technical details, I think there are deeper and more disturbing reasons for not supporting the bill that underlie their objections. Again, I do not think this represents a good number of the Conservative caucus who have supported it at second reading and in the past as well.

The bill has been introduced and championed by the member for Esquimalt—Juan de Fuca, whom I have the great pleasure of sitting beside in the House of Commons. Even though the member is newly elected, like me a rookie, the bill has shown that he is one of the smartest and most ethical MPs in this place. I have enormous respect for his work on it and also as our very able public safety critic. I am very honoured to support his heroic efforts to support the trans community and those within the LGBTQ community.

Besides sitting beside the champion of the bill, I have another strong connection with the bill other than my absolute belief that it is relevant and just in that earlier versions were championed by my predecessor in Burnaby—Douglas, Mr. Bill Siksay. It is really an honour to follow in the footsteps of Mr. Siksay. Through his efforts on this issue and many others, he is seen as a champion in Burnaby and the national and international LGBTQ community.

Bill Siksay first introduced the ideas contained in the bill in 2005, then again in 2006 and again in 2008. Members in the House may remember that predecessors to the bill passed through the last minority Parliament on February 11, 2011. Again, the bill has a long history. For eight years it has been winding through the House in various forms, having passed once and I hope pass again as it has passed second reading.

In 2011 the bill had the full support of the NDP as well as some level of support from all other parties. Unfortunately, the bill in the last Parliament died in the Senate without being considered once the election was called.

This hopefully amended Bill C-279 contains some simple and very just measures. As my colleagues have mentioned, it would add the term “gender identity” to the Canadian Human Rights Act, section 2 as prohibited grounds for discrimination. It would also amend the Criminal Code to include gender identity as a distinguishing characteristic protected under section 318 and as an aggravating circumstance to be taken into consideration under section 718.2 at the time of sentencing. This would mean that it would count as a hate crime, or consideration when prosecuting hate crimes.

Members again should remember that the bill passed second reading on June 6, 2012, with the unanimous consent of the NDP and support from Liberal, Bloc, Green and 15 Conservative MPs. I remind members who make speeches tonight that there is sizable support for it from a good portion of the Conservative caucus, including many frontbenchers.

I would like to thank those who supported the bill at second reading. It sends the right message to Canadians that the House of Commons takes care to ensure that justice extends to all Canadians. It is a good symbol and shows that we in the House of Commons care about this community and all communities in Canada and will make sure they are treated fairly.

These, of course, are in no way special rights. They are equal rights and they are ensuring that rights are being extended to all Canadians by enshrining the idea of gender identity in the Criminal Code and the Canadian Human Rights Act.

Bill C-279 provides remedy to transsexual and transgender Canadians who do not currently enjoy specific protections in federal law or specific protection against hate crimes.

Passing the bill into law would be an important step forward for Canadians expressing themselves as transgendered. Trans people have regularly been shown that they are denied things that we all take for granted, such as adequate access to health care and housing, the ability to obtain or change identification documents, access to washrooms and other gender stations, as well as very fundamental rights such as the ability to exercise the right to vote and to acquire and maintain meaningful employment.

I would also remind members that Canada is a signatory to the UN declaration on sexual orientation and gender identity, and to meet our obligations it is necessary to add gender identity to our own Canadian Human Rights Act. Not only has this bill been winding its way through the House of Commons for a long time, but we also have an obligation not only to our citizens but to an international obligation to make sure we go forward with this measure.

The bill has had broad support from many across Canada. We have had emails, texts and twitters. I know people are following on CPAC and here in the House tonight, as well as many of our brothers and sisters in labour unions such as the CLC, CUPE, CUPW, CAW, CAUT and the British Columbia Teachers' Federation. It also has broad support from student groups across the country, including UVic Pride, UBC, York University, SFU and universities right across Canada.

We need to do this in the spirit of the anti-bullying pink shirt day that we are seeing here in Canada. Wearing a pink shirt is a good thing. It shows that Canadians care. However, this is an opportunity to actually do something concrete, to change the laws of our country to make sure that people who are facing discrimination are no longer discriminated against, or if they are, that they have remedy within our legal system, whether it is the Canadian Human Rights Act or the Criminal Code, in order to make sure that they obtain justice and are able to pursue their lives as they see fit.

What we need to take into account also is how the trans community is suffering under the current circumstances. Worldwide since 1970, 717 trans people have been reported as murdered. However, this of course is a severe undercount, because many countries do not collect adequate statistics in this area, nor do they correctly record violence against the trans community.

Finally, as we are here on pink shirt anti-bullying day, we should follow what Egale Canada says: that 90% of trans-identified students reported being bullied on a daily or weekly basis.

I am proud to stand up here today to support the amendments and the bill and to make sure this bullying and this injustice stop and the trans community is given proper remedies to fight back against this discrimination.

Motions in AmendmentCanadian Human Rights ActPrivate Members' Business

February 27th, 2013 / 7:15 p.m.
See context

Conservative

Dan Albas Conservative Okanagan—Coquihalla, BC

Mr. Speaker, I am pleased to have the opportunity to participate in the debate on Bill C-279, which is sponsored by the hon. member for Esquimalt—Juan de Fuca, an opposition member from my province of British Columbia for whom I have great respect.

After examining and considering Bill C-279, I think it is clear that the amendments proposed in this bill are not necessary. That is why I am going to vote against Bill C-279.

I would like to take this opportunity to contribute to the discussion on Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), which proposes to add the terms “gender identity” and “gender expression” to those laws.

Bill C-279 has been studied by the Standing Committee on Justice and Human Rights. While the bill was in clause-by-clause review before the committee, the member for Esquimalt—Juan de Fuca proposed several amendments to the bill, namely that only the term “gender identity” but not “gender expression” be added as a prohibited ground in the Canadian Human Rights Act and to the hate propaganda and aggravated sentencing provisions of the Criminal Code.

The member also proposed to add a definition of the term “gender identity” to the preamble of Bill C-279. This definition reads:

[Whereas] 'gender identity' to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth...

We do know that in practice the definition of “gender identity” in this discussion can extend beyond that. However, I also accept that clarifying the definition from a legal perspective is a challenging one. In some respects, that is one of the crutches in this debate.

As I mentioned, the sponsor proposed to add this definition to the preamble of Bill C-279 although not to the Canadian Human Rights Act or the Criminal Code directly. Looking at this definition as it stands, we can conclude that gender identity is something that all people must have. All Canadians must have some sense of their gender, of whether they are male or female. Indeed, the sponsor of Bill C-279 made this very point when he spoke before the Standing Committee on Justice and Human Rights.

I raise this point because gender discrimination is already covered by existing law. In fact, there have been a number of decisions of the federal Canadian Human Rights Tribunal in which discrimination against transsexuals has already been considered using the ground of sex as defined and already included in the Canadian Human Rights Act. Some decisions have also used the ground of disability.

For example, a transsexual who was incarcerated in a men's prison brought a complaint forward to the Canadian Human Rights Tribunal, alleging discrimination because the prison refused to continue her sex reassignment treatments and did not transfer her to a women's prison. The tribunal dealt with this complaint under the ground of sex.

In another case, a male to female transsexual who was in the process of transitioning and was dressed in women's clothing was refused employment at a bank. Here again the tribunal dealt with this complaint using the ground of sex.

Finally, in a complaint from my home province that made its way up to the British Columbia Court of Appeal, a male to female transsexual was refused a volunteer position at a women's shelter and rape crisis centre. Again, the court dealt with the complaint using the ground of sex.

All of these discrimination complaints have already been addressed under the current law. As a result, I question the legal need for the adoption of Bill C-279.

I also have some concerns on the proposed amendments to the Criminal Code. What kinds of speech based on someone's subjective or personal sense of being male or female would be considered hate propaganda? What does it mean to have a bias based on a person's subjective sense of being male or female? How do we single out one gender from the other?

By adding the proposed definition for the term “gender identity” in Bill C-279's preamble, it remains unclear what situations it would cover and how the Canadian Human Rights Tribunal, or the criminal courts and the sentencing judges, would interpret these terms. This gives rise to the potential for subjective interpretations. These interpretations do not provide clarity nor certainty. In the absence of having greater certainty and a clear definition, it is important to recognize that existing laws already do apply to discrimination against transsexuals.

I respect what the member for Esquimalt—Juan de Fuca is attempting to do in the bill. However, we must not lose sight of the fact that the Canadian Human Rights Tribunal, and our criminal courts and sentencing judges do not have that same luxury. They are bound to follow the language that is passed into law. If that language is too vague, then it becomes open to selective and arbitrary interpretation. This is contrary to the clarity that we seek to create in our laws.

While I do respect the member for Esquimalt—Juan de Fuca's efforts and that the language as proposed in the bill is well intended, I submit it would not provide the clarity that is needed, and as such I regret that I cannot support Bill C-279.

In closing, I explained that the amendments proposed in this bill were largely unnecessary given the existing case law. The Canadian Human Rights Tribunal has already dealt with a number of discrimination complaints lodged by transsexual individuals. It is not necessary to add vague new terms to the Canadian Human Rights Act or the Criminal Code. That is why I urge my colleagues from all parties to vote against this bill.

Motions in AmendmentCanadian Human Rights ActPrivate Members' Business

February 27th, 2013 / 7:25 p.m.
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NDP

Mylène Freeman NDP Argenteuil—Papineau—Mirabel, QC

Mr. Speaker, I am honoured to rise in the House to support Bill C-279. I congratulate my colleague from Esquimalt—Juan de Fuca for reintroducing this bill, which will add an important right to our legislation and protect people who are subject to a serious form of discrimination.

Including gender identity in our laws—in the Canadian Human Rights Act—would represent significant and necessary progress. In addition to protecting transgendered people who experience discrimination, this bill recognizes the fact that transgendered Canadians have an identity and a community, and that they are worthy of being officially recognized and protected by our laws.

This bill changes the wording in our laws to be truly inclusive, so that the law ensures that no one experiences discrimination based on their identity. We must recognize that these identities deserve equality.

This recognition for transgendered and transsexual people is not just symbolic; it is urgently needed. My NDP colleagues have provided many reasons for this urgency over the course of the debates in the House, since Bill Siksay introduced the first version of the bill in 2005.

It is urgent because transgender people are victims of violence and discrimination, and live in greater poverty. It is urgent because it is vital that transgender people be recognized as individuals in their own right with all the rights to which they are entitled.

In this House, we should not be afraid to recognize transsexuals, transgender people and intersex people as Canadians in their own right who deserve to have their identity included in Canadian law. We must recognize the fact that gender and sexuality are distinct. They are not a simple dichotomy. The lack of binary simplicity is uncomfortable for people who accept their gender identity as a biological imperative. But that in no way reflects reality.

The medical community is beginning to understand transgender identity and, step by step, is moving towards validating and supporting these facts.

Dr. Shuvo Ghosh, who is a trailblazer in this field is a pediatrician, a developmental-behavioural pediatrician to be specific, and an assistant professor at McGill University and at the Montreal Children's Hospital, noticed that he was seeing more and more transgendered children and decided that he would open a clinic to specifically support their needs. It is the first one of its kind, in fact. I am very happy and proud that it is in my province of Quebec and so close to my home in Montreal.

Dr. Ghosh wrote me this letter to share with the House:

To the Honourable Members of the 41st Parliament of Canada: Last year when Bill C-389 passed its third reading in the House of Commons, many questioned the wisdom of enshrining “gender identity” or “gender expression” in the Canadian Human Rights Act and whether this was redundant given that “sex” is already protected. With the NDP's Private Member Bill on Gender Identity now up for debate, these questions are once again being raised. As a paediatrician who cares for gender non-conforming children, adolescents and their families who are part of the roughly 1-2% of all Canadians with differences in their gender expression, I would like to highlight the main reasons why this issue is crucial for Canadian society. While “gender identity” and “sex” are related terms, they are no synonymous. The most obvious example of this dichotomy is in children born with medical intersex conditions who identify more with one gender of another, or rarely, neither or both; but their physical sexual characteristics frequently do not correspond with their identity. Are we to conclude, then, that they fall outside the protection of the Human Rights Act because their “sex” is indeterminate or incongruent with their behaviour? Youth with any variation in their gender identity...have been shown, in numerous studies and in various clinical databases, to be the group most vulnerable to extreme and violent bullying, depression, anxiety, and suicidal thoughts.

Adolescents with gender variance are 14 times more likely to attempt suicide than any other sub-group of teens, including other recognized and protected vulnerable populations. They are also the most likely to be rejected by peers and family members, and often lacking even any legal recourse to simply “be” who they are, frequently enter a spiral of self-harm that can lead to substance abuse and alcoholism. This heartbreaking distress is seen and reported even in children as young as 4 years old who simply recognize that their gender identity does not correspond with their anatomic sex, and have asked their parents to help them die. So many families of gender variant kids experience severe discrimination, societal rejection, and serious psycho-social difficulty. This translates to higher levels of divorce, greater school and emotional problems in siblings, and severe marginalization. These families need their children to be recognized, included and protected, just as any family does.

Isn't it fair for Canada to stand up and to stand together, to say that our most vulnerable children and teens deserve to be specifically protected for the very characteristic that makes them vulnerable? Do we as a nation not have the responsibility to enshrine gender identity in the Canadian Human Rights Act? It is imperative. The medical evidence supports it; and these young Canadians, slipping through the cracks of our society, deserve to have their tears of loneliness and rejection wiped away so that instead of living and dying in fear, they may grow up to share and contribute to this wonderful country in which we are so privileged to live.

Sincerely,

Dr. Shuvo Gosh

It is an incredible letter, and that is why I felt I needed to read it to the House.

Dr. Gosh sees firsthand every day how children suffer from the pressure to normalize and how space must open in our culture and in our minds to account for gender non-conforming children. Some children have biological gender variance, but nowhere do they see powerful reflections of themselves in mainstream society. However, a person must be recognized and must see themselves reflected in the world around them to feel healthy and accepted, and we as legislators have to make laws that recognize their inherent human rights.

Not only do we have the power to better protect trans folk from the disproportionate harm they face, but I believe we can be even more proactive about this problem. This bill is a very good first step, and I want to thank my colleague for all the work he has done for it to have the possibility of becoming law. It is my hope, though, that we can do even more to break down the inherent discrimination in our society. There are so many spaces that define and treat us by gender, spaces where trans folk face non-inclusion, discrimination and harm.

We must proactively train police, airport officials, teachers, legal personnel and medical personnel, and raise awareness among all Canadians that gender non-conforming people are equal members of our communities who deserve to be respected, treated with dignity and cannot be discriminated against, just the same as those of us who conform to our birth sex as our identity. This is about people whose rights are being ignored due to who they are.

In closing, I want to thank those who work on ensuring the rights and dignities of transgender and transsexual people, like Dr. Gosh and others I have heard from. Gwen Haworth, a trans woman, filmmaker and activist took the time to meet with me in Vancouver and to advocate for the rights of the trans youth she works with in the downtown eastside. I want to thank those who bravely face discrimination, hate, violence and marginalization every day because of who they are.

I would like to sincerely thank Bill Siksay, the first author of this bill, and the member for Esquimalt—Juan de Fuca, who has worked very hard to bring us to the point of adopting this very important measure today. Finally, I would like to thank in advance all members who will be supporting this bill. I thank them from the bottom of my heart.

Motions in AmendmentCanadian Human Rights ActPrivate Members' Business

February 27th, 2013 / 7:35 p.m.
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Cypress Hills—Grasslands Saskatchewan

Conservative

David Anderson ConservativeParliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board

Mr. Speaker, I am glad to be able to join the debate today on Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

As my colleagues are aware, Bill C-279 would amend both the Criminal Code and the Canadian Human Rights Act by adding gender identity and gender expression. I understand that the member opposite now wants to change that with his amendments.

I am cognizant of the need to protect all Canadians from discrimination and hate crimes. I am proud of the fact that Canada is recognized internationally as a country that is deeply committed to the principles of respect for diversity and equality, but I would argue that the bill accomplishes neither of those goals.

The desperate attempt, I would say, by member for Esquimalt—Juan de Fuca to amend the bill shows that the bill itself is not adequate. The bill is just not up to the level it needs to be in order for anyone to support it in this House. The amendments to the act as proposed by Bill C-279 are largely symbolic and vague, and I would say that they risk introducing confusion to the law. I would suggest as well that the amendments he is making do not add anything to it.

The bill is not properly designed to remedy the supposed social problem that it is aimed at addressing, and I would argue that it is largely unnecessary as well. For those reasons and a couple of others, I will be opposing Bill C-279.

I first want to speak about the fact the bill is unnecessary.

The courts and human rights tribunals in this country have already developed jurisprudence to protect transsexual and transgendered people. The Canadian Human Rights Tribunal has already decided several complaints brought to it, and we heard about those earlier from my two colleagues. These complaints have been dealt with using the grounds of sex orientation or disability.

In fact, the grounds of sex in all anti-discrimination laws are interpreted broadly. They have evolved over the years and are usually understood to cover discrimination complaints based on not just sex but on all gender-related attributes, such as pregnancy, childbirth and, recently, transsexualism.

For those few complaints that have been brought by transsexuals—and I think one of my colleagues read four of them—the tribunal has used the existing grounds already contained in the Canadian Human Rights Act, and in fact there is no gap in protection. The Canadian Human Rights Tribunal has dealt with the four cases that were mentioned around gender identity and gender expression issues.

Furthermore, in deciding that transsexuals are already protected by federal human rights laws, the tribunal's approach has been consistent with that taken by provincial human rights tribunals as well. They have found that these grounds of discrimination are already covered by their existing codes.

All of these cases were adjudicated within the framework of the Canadian Human Rights Act, which designates sex and sexual orientation as prohibited grounds of discrimination. Both Susheel Gupta, as the acting chairperson and chief executive officer of the Canadian Human Rights Tribunal, and Ian Fine, who is the secretary general of the CHRC, spoke at committee about that and the fact that it does not need to be extended further than it is now in order to deal with those complaints.

My second problem with the bill is that it is undefined.

I understand that the member is now starting to try to put definition into some of these things because he is afraid he is going to lose the bill, and I think that he should lose it. Expanding the definition of sexual orientation to gender expression and to gender identity in the Canadian Human Rights Act and the Criminal Code makes who and what is being protected even less clear than it is. If the member's purpose was to clarify the existing grounds, which I would maintain is unnecessary, he could have proposed adding an appropriate definition to the Canadian Human Rights Act. He did not do that. He has come back lately with an attempt to do that, but it was not his intention at the beginning.

In fact, the member's intention at the beginning was that the courts and the human rights commissions themselves would determine the definitions of these things. He was quoted in Xtra magazine as saying:

Once gender identity is in the human rights code, the courts and human rights commissions will interpret what that means.

I would suggest that even with the definition he is trying to add today, he probably is still thinking that hopefully the courts and the human rights commissions will define it. However, I would argue that it is inadequate for a legislator to proceed in this way.

If our role is to bring laws forward, they should be brought forward with enough content that the courts and commissions are not the ones who are defining what those bills are and what they say. I believe that is inappropriate. It is an abdication of our parliamentary responsibility to pass laws that would leave us in a situation like that. For parliamentarians to leave new and undefined terms to the courts and human rights tribunals, I would argue, is risky and irresponsible.

I also want to point out—and I think this is probably something that the member hopes will happen—that when the courts rule on these grounds, they usually assume that the old language was inadequate and that they should make new and broader interpretations and that such broader interpretations must be sought.

Therefore, I would argue that in this case it is not defined properly and that those interpretations are inappropriate for good legislation. The definitions are undefined and inadequate and because of that alone, this legislation needs to be rejected.

There are a number of other things I would like to talk about, and I understand I have some time in the next hour. However, I want to mention that the member said earlier at committee that the United Nations had supported proposals such as his. The reality is that while the Commissioner for Human Rights has called for some of these changes, the United Nations has not supported them. In fact, several of its commissions have turned away from supporting these notions that he has brought forward today.

I look forward to finishing my speech when we meet again.

Canadian Human Rights ActPrivate Members' Business

June 1st, 2012 / 1:30 p.m.
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Liberal

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.

Canadian Human Rights ActPrivate Members' Business

June 1st, 2012 / 1:40 p.m.
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NDP

Libby Davies NDP Vancouver East, BC

Mr. Speaker, I am very proud to rise in the House today to support Bill C-279, which is An Act to amend the Canadian Human Rights Act and the Criminal Code in regard to gender identity and gender expression.

This bill has had a long history, and I want to first of all thank the NDP member from Esquimalt—Juan de Fuca for the tremendous work that he has done on this new version of the bill, as it has been in previous Parliaments. He has done an incredible amount of work within Parliament and by talking to individual members of Parliament and helping people understand the importance of this bill and what it means. He has also done significant work in the community, not just in the trans community but in the broader community, to bring about a better understanding of this bill. I certainly want to pay tribute and give respect to the work that my colleague has done.

This bill has actually had a long history. It was first introduced in the House in, I believe, 2005, and again in 2006 and then again in 2008 by Bill Siksay, who was the former member of Parliament for Burnaby—Douglas. He too did an incredible amount of work. It was a great day when the bill actually did pass in the House of Commons, as the member for Vancouver Quadra just noted a few minutes ago.

In February 2011, it did actually go into the Senate. Had it not been for the election, it is very possible that the bill would have gone through the Senate and would now be law. That history is interesting because it gives a sense of the importance of private members' business, bills and motions and of how we have to keep plugging away and working at an issue. Sometimes it can be a very long and difficult road, with barriers and frustrations and sometimes elections arising before the goal of having a bill finally approved is reached.

This bill and its history have been quite remarkable. I want us to reflect on that today, because this is the fourth time around with this bill. It has already passed in a Parliament. We have an opportunity here today to do something historic, which is to affirm the rights of transgendered, transsexual and gender-variant Canadians who do not have the same degree of protection for their rights and freedoms as all other Canadians. That is why this bill is seeking to remedy that gap in the Canadian Human Rights Act and the Criminal Code.

I know some Conservative members may just oppose the bill outright. I would have serious questions about that, because it is a bill based on establishing our understanding about human rights and protection under the law. Other members may support the issue in principle but may believe that the bill is possibly not necessary and that somehow that protection already exists. However, I think we need to be very clear that although other minority groups do have protection under human rights and the Charter of Rights and Freedoms, those rights are not guaranteed specifically to transgendered, transsexual and gender-variant Canadians because they are not identified as an identifiable group. While the charter now spells out race, nationality, ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted, it does not include transgendered persons. Therefore, it is really important that we actually make this move.

I would point out that the Canadian Human Rights Act review panel in 2000 recommended that these changes take place. In other words, an independent evaluation beyond this bill in Parliament came to the same conclusion, the conclusion that these changes are needed.

I would also point out that gender identity and gender expression are grounds for protection under the UN Declaration on Sexual Orientation and Gender Identity, to which Canada was a signatory back in 2008, so we can see the international frame for this as well as see that our own experts in Canada are saying that this change needs to take place.

The bill is very timely. It is warranted. It has already been approved by a previous Parliament, so I am very hopeful that we will see our way here, on all sides of the House, to have the bill go through at second reading and pass on to committee.

The support in the community has been quite magnificent. A lot of people have worked very hard on this bill. They include the member for Esquimalt—Juan de Fuca, as I pointed out earlier, and also groups like Egale Canada, Jer's Vision, Gender Mosaic, Ottawa Trans PULSE Project and Trans Pride Canada.

These groups, and many individuals as well, have worked very hard to bring about greater awareness of issues facing transgendered people and greater awareness that discrimination still exists in daily life. Whether we consider health care or employment, housing or social interactions and social acceptance, there is still discrimination, there is still persecution and there is still violence.

It is very interesting. When the member for Esquimalt—Juan de Fuca spoke in the first hour of debate, he laid out very well some of the reports that have been done. One done by Trans PULSE Project Canada, for example, shows that the level of depression among transgendered Canadians is as high as 61% to 66%, and there are issues around mental health. This all has to do with people feeling they are excluded, that they are facing discrimination and harassment, so it is very important that we address this inequality.

A bill like this is really just the first step. Putting something into law, enshrining a right and improving and strengthening the rights that we have, is surely the most important and significant first step that needs to be done, but it is only the beginning. From there, we have to ensure continual vigilance to make sure those rights and protections are upheld because, unfortunately, much discrimination still takes place, so the application of the law and an understanding about the law are really important.

We as legislators, as parliamentarians, have a really important leadership role to play in making it clear that we live in a society where, in our own communities and our own constituencies, we have transgendered constituents and that all people have the right to protection and dignity and respect under the law.

We can begin at that place, but we have to go further. We have to make sure, for example, that there is equal access to health care. Transgendered Canadians often find it very difficult to access health care services and are often denied medically necessary care. They are forced to deal with the issue of their gender before they can access the service. There are many examples, including not having equal access to surgery, an inequality that certainly exists in the provinces where there are different variations and standards. Some very important issues need to be dealt with, but first and foremost we need to get the bill through.

I want to appeal to all members of the House. This is a vote on principle in this bill, and if we accept the principle of what the bill is laying out, then let us get it to committee. At committee we can have a very constructive discussion about the bill, and there may possibly be amendments. The member for Esquimalt—Juan de Fuca, who brought the bill forward, has made it very clear and has shown in all of his work that he wants to engage, hear different points of view and find a way that the bill can be supported by all sides.

We have something very strong and healthy here. We are very close to getting this bill through, so again I want to appeal to all members of the House to consider the principles of the bill, which are about the protection of all Canadians in human rights and dignity and respect, and to allow the bill to go to committee so that there can be a further discussion in much more detail.

I am proud to be here today. Our NDP caucus, the official opposition, is 100% behind the bill, and we really hope other members of the House will find their way to support this bill as well and let it go to committee.

Canadian Human Rights ActPrivate Members' Business

June 1st, 2012 / 2 p.m.
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NDP

Philip Toone NDP Gaspésie—Îles-de-la-Madeleine, QC

Mr. Speaker, I rise today in the House to support Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code.

I am very proud to have the opportunity to speak to the bill introduced by my hon. colleague from Esquimalt—Juan de Fuca. I would like to take a moment to congratulate him on all his hard work on this issue.

I would also like to congratulate the former member, Mr. Siksay, who worked very hard in previous years to get his bill passed, a bill that was very similar to the one before us here today.

At the time, his bill was supported by the Canadian Bar Association and the Public Service Alliance of Canada. Today, we also have the support of many other unions, such as the Canadian Labour Congress and the Canadian Union of Public Employees.

I am very proud of the fact that Canada's labour movement has given us its support so that we can finally pass legislation that will strengthen the rights of Canadians. I think that is very important. Canadians generally believe that our rights must be interpreted in a broad sense. However, when it comes to transsexuals' rights, there are limitations. I am very proud of the work done by the hon. member for Esquimalt—Juan de Fuca.

Passing this bill would be an important step in protecting the rights of all Canadians. As a member of Parliament and an openly gay man, I am very aware of the fundamental importance of the legal protection of sexual orientation and gender identity and expression.

In fact, had my rights as a gay man not been enshrined in the law, I would likely not be here before you today. If I was not able to express my identity, I would be living a very different life, likely a double life, a life filled with fear.

I would not be married. I would never have been able to openly share the joy of that relationship with my family and friends. I would likely never have developed the confidence needed to become a notary and a politician.

I support this bill. It will help transsexual and transgendered Canadians achieve a degree of freedom that they do not currently enjoy. It will be a freedom that will allow them to exercise their right to express themselves fully and freely as human beings, knowing that the law will protect them against bullying and discrimination.

Federal law does not provide specific protection for transsexual and transgendered Canadians any more than it provides protection against hate crimes.

Often, the courts and human rights commissions consider these types of complaints as discrimination, but the legal arguments have to be made over again every time. Enshrining this right in our legislation would prevent such complaints from ending up in court and would prevent transsexual and transgendered people from always having to spend large amounts of money to protect rights that others take for granted.

It is time to stop doing things this way and to protect transsexual and transgendered Canadians against the discrimination, harassment and violence they experience in their everyday lives. It is time to protect transsexual and transgendered Canadians.

Some believe that terms such as “gender identity” and “gender expression” are poorly defined, but that is not true. These expressions are very clear in scientific research and in the law.

Gender identity is an individual's self-conception as male or female, both or neither, as distinguished from one's birth-assigned sex.

Gender expression is how a person's gender identity is communicated to others through emphasizing, de-emphasizing or changing behaviour, dress, speech and/or mannerisms.

Some have argued that there is no need for specific protection of transgendered rights as sexual orientation is already included in the Canadian Human Rights Act and in the hate crimes section of the Criminal Code. This argument confuses sexual orientation (who one is attracted to sexually) with gender identity and gender expression.

Transgender, transsexual, gender non-conforming and gender variant individuals may profess any of a range of sexual orientations: attracted to people of their own gender identity, of the other binary gender or of several different genders. There is no scientific justification for forcing those with alternative gender identity, gender expression or sexual orientation to assimilate. That kind of thinking is outdated.

Trans people are regularly denied things that we all take for granted, such as access to adequate health care and housing, the ability to obtain or change identification documents, access to washrooms and other gender-identified spaces, limits on the ability to exercise the right to vote, and on the ability to acquire and keep meaningful employment.

Canada is a signatory to the UN statement on sexual orientation and gender identity. To meet our obligations it is necessary to add gender identity to our own Canadian Human Rights Act and the Criminal Code.

Transsexual and transgender Canadians currently have no explicit protection in the Human Rights Act leaving trans Canadians open to discrimination, prejudice, harassment and violence on a daily basis. Adding specific protections for the rights of transgender Canadians will close a specific gap in Canadian human rights law and will help raise public awareness about this important issue.

Since 1970, at least 645 trans people have been murdered worldwide. We know that this is only the tip of the iceberg as most countries do no keep records on trans identities or trans-related violence. This is an opportunity for all parties to join together to help complete basic protection of human rights in Canada by including protections for transgender, transsexual, and gender variant individuals in Canadian law.

We have seen this House pass similar legislation before. We had the support of many members from all parties. It would only make sense this time around to pass a bill on which this House has already spoken and for which it has given its approval.

Moving forward with a new bill today will simply confirm the state of Canadian law as it should be and as the House has already declared it to be in the past. Unfortunately, we have lost several months debating the bill again, only to come here today and end up where we were two years ago.

In closing, I think it is very important for us to move forward and confirm our support once again. I hope that all members here in this House who were here the last time will reaffirm their support for this bill and that the other MPs, those who are new like me, will also lend their support. Nearly a dozen Conservatives have even participated in the It Gets Better video project in response to high rates of LGBT suicides.

We hope that all those who have demonstrated their concrete commitment to making it better for transgender people will vote in favour of this bill.

Canadian Human Rights ActPrivate Members' Business

June 1st, 2012 / 2:10 p.m.
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NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Mr. Speaker, I rise to close second reading debate on Bill C-279 with a great deal of optimism.

In the brief time I have available, I will not try to review all the arguments in favour of the bill. One reason is that this is essentially the same bill that passed in the House in the previous Parliament and stalled in the Senate. The second is that I had the privilege of opening this debate some weeks ago and laid out my arguments then. The third reason is the arguments in favour that have been ably put before the House today by my colleagues.

In the brief time I have available I want to deal with concerns we have heard from the other side of the House. I have listened carefully to speeches and I have talked a great deal with individual members on the other side. What I have heard is much goodwill on the question of protecting the rights of transgender, transsexual and gender variant Canadians despite some concerns about specifics of the bill.

One concern is a lack of definitions of key terms in the bill. I personally still do not believe a definition of gender identity is needed in the same way that we do not define other terms in the human rights code.

The other concern is with the breadth of the term “gender expression”. Again, this is not a concern that I share personally, but it is one that I have come to understand in my discussion with members on the other side. I will concede that this term is not as precisely defined in law as “gender identity”.

A third argument that has been made against the bill is that it is not needed because transgender rights are already protected in existing legislation. Once again, I do not share this opinion. I believe there is a gap in our law. As we just heard from my hon. colleague, one of the problems in law if it is not specifically mentioned is that those legal arguments have to be rebuilt in every legal case. Even if this were the case and transgender rights were covered in some general terms, there are still good reasons to proceed with this legislation and its specific protection of the rights of transgendered Canadians.

One good reason is to remove any doubt or ambiguity about the protection of those rights and to state very clearly that transgender, transsexual and gender variant Canadians are entitled to the same protections as all other Canadians, and that discrimination against transgender Canadians must end now.

Progress is being made in other jurisdictions, such as Ontario and Manitoba, and even in some unexpected places like Argentina, which now has perhaps the most progressive legislation in the world on transgender rights.

In response to that large measure of goodwill that I found on the other side of the House, I am committing today to support changes to the bill which I believe will preserve the essence of the bill while still meeting the concerns of many of those on the other side of the House.

If we can get support at second reading to get the bill to committee in the vote next Wednesday, we on this side will support amendments to do two things. We will support an amendment to remove the term “gender expression” from the bill, and we will support an amendment to add a definition for “gender identity” to the bill. I trust that this commitment will secure enough support to move forward on the protection of transgender Canadians.

I urge all members to join me in supporting this bill and helping to build a truly inclusive Canada where we can all live our lives as who we are, and we can each make our own special contribution to Canadian life.

I want to remind the House once again that transgender, transsexual and gender variant Canadians are our brothers and our sisters, our children, our parents, our grandparents, our family, our co-workers and our friends.

I urge everyone in the House to join together, let us move forward together to make progress for the protection of rights of all Canadians, including transgender Canadians, transsexual Canadians and gender variant Canadians. The time to act is now.

Canadian Human Rights ActPrivate Members' Business

April 5th, 2012 / 1:30 p.m.
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NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

moved that Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the second time and referred to a committee.

Mr. Speaker, I am honoured to lead off the debate at second reading of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

I am honoured to stand in this House and carry on the NDP tradition of standing up for the rights of transsexual and transgendered Canadians. I would also like to thank the 18 seconders of my bill for their support, which demonstrates the broad support that this bill has in this Parliament.

As many will be aware, this bill passed the House of Commons some two years ago in February 2011 but died on the order paper in the Senate when the 2011 election was called. I am hoping that we will have sufficient support once again from all parties in this House to adopt this very necessary bill.

I will begin by addressing why this bill is so necessary in a Canada where the Charter of Rights and Freedoms has become part of what one might call our national DNA and where we very much believe that rights are fully protected. The problem is that some citizens do not enjoy the full protection of their rights under the law, and the problem is that those Canadians are often subject to discrimination, denial of public services and, all too often, harassment and violence.

The reason this bill is before us today is because gender identity and gender expression rights are not expressly protected in Canada. Simply put, transgendered, transsexual and gender variant Canadians do not have the same degree of protection of their rights and freedoms as all other Canadians, and this bill seeks to remedy that gap.

Other minority groups do have protection under the Canadian Human Rights Act and under the Charter of Rights and Freedoms. However, these same guarantees are not provided to transgendered, transsexual and gender variant Canadians because in law they are not defined as an identifiable group.

Right now, people cannot be discriminated against on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. Unfortunately, none of those categories offer protection to trans-Canadians as the discrimination they suffer does not fit into those categories.

I want to emphasis again, since there is sometimes misunderstanding, that sexual orientation is not a blanket term that offers protection against the discrimination, prejudice and violence suffered by trans-Canadians. In fact, in a recent study carried out by the Trans PULSE Canada, 30% of the participants self-identified as straight, as heterosexual.

Transgendered, transsexual and gender variant rights are not just other words for sexual orientation. They are a category that is lacking and missing in our law.

Around the world, transsexual, transgendered and gender variant people do suffer high levels of discrimination, prejudice and violence, but in Canada, a country that prides itself on equality, acceptance and diversity, trans-people are no exception.

Each November, the Transgender Day of Remembrance is observed around the world to draw attention to the violence against the trans communities. Last year, the observance marked the deaths of over 220 people around the world as the result of attacks based on their gender identity or gender expression.

There is a lot to be done in the world at large but also a lot to be done here at home. I acknowledge that changing laws alone will not solve all the problems but I believe the first step to ensure that trans-people have the same rights as all other Canadians and that trans-people's rights are upheld just the same as those of any other citizen comes with the passage of this bill.

As a society, we must take this issue seriously so that trans-people are recognized as full citizens and are entitled to and can use their rights in the same way as any other citizen so they can participate fully in their communities. Again, I believe the first step will occur with this bill.

Bill C-279 would amend the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds for discrimination. It would also amend the hate crimes section of the Criminal Code to include gender identity and gender expression as distinguishing characteristics protected from hate crimes under section 318 and also as aggravating circumstances to be taken into consideration at sentencing under section 718.2 of the Criminal Code.

I should take a moment to address the question of definitions, as some have said that gender identity and gender expression are vague terms. That is not true in Canadian law. We have had litigation before our Canadian Human Rights Commission and in other places where these terms have received a very clear definition.

Gender identity is an individual's self-conception as being male or female, or both, or neither, as distinguished from one's birth-assigned sex. Gender expression, on the other hand, is how a person's gender is communicated to others, emphasizing or de-emphasizing characteristics, and changing or not changing behaviour, dress, speech and/or mannerisms.

The bill seeks to address the lack of explicit human rights protections on both counts, gender identity and gender expression.

I want to take this opportunity to reiterate that what we are talking about here are basic human rights enjoyed by all other Canadians and not some category of special rights. These are simply the same rights that are inscribed in Canadian legislation for all other Canadians. These rights and protections are necessary to ensure that trans Canadians can safely live out their lives, just as any other Canadian.

It is important to note that we will not be breaking new ground when we adopt Bill C-279. It will offer and include the same types of protections that are being implemented in other places in Canada and around the world. In fact, in the year 2002, the Northwest Territories entrenched protections for transsexual and transgendered people in its human rights act. Hence, the Northwest Territories has already taken a lead on this issue. Moreover, the cities of Vancouver, Ottawa and Toronto have all amended their anti-discrimination policies to protect against discrimination based on gender identity and gender expression.

We will also not be running in advance of the field. In Canada, the Canadian Human Rights Act review panel, in the year 2000, recommended these changes. In this House, a previous member, Bill Siksay, introduced the same bill in 2005, 2006 and 2008, before it was finally passed in 2011. Some would say that time is well due for passage of the bill.

Finally, I would mention that gender identity and gender expression are grounds for protection under the UN Declaration on Sexual Orientation and Gender Identity, which Canada signed on December 18, 2008. Accordingly, one could argue that having voluntarily signed on to this international convention, Canada is actually obligated to make the legislative changes necessary to bring those protections into force.

As well, in November 2011, the UN High Commissioner for Human Rights, for the first time, issued a comprehensive report on the rights associated with sexual orientation and gender identity and made a number of recommendations to all member states. Four of those are very relevant to Canada.

The high commissioner for human rights said that all member states needed to enact comprehensive anti-discrimination legislation that would include discrimination on the grounds of sexual orientation and gender identity. That is precisely what we are trying to do in Bill C-279.

The high commissioner went on to say that all countries should facilitate legal recognition of the preferred gender of transgendered persons and establish arrangements to permit relevant identity documents to be reissued, reflecting the preferred gender and name without infringement of any other human rights.

If we pass Bill C-279, this would facilitate making those necessary changes in the regulations that govern the issuance of identity documents, which is often a large problem for transgendered Canadians. As we have seen recently, with the changes under the air safety regulations for identity during travel, this would resolve the problem that was created by the introduction of this discriminatory regulation.

The high commissioner's fourth recommendation calls for the implementation of appropriate training programs for police, prison officers, border guards, immigration officers and all other law enforcement and security personnel to counter homophobia and transphobia and to ensure that the rights of transgendered citizens are observed by officials of the state in all appropriate circumstances.

Again, the UN High Commissioner for Human Rights has called on Canada, as a member of the United Nations, to take the kind of action I propose in Bill C-279.

Some say, what is the urgent need to fill this gap in our human rights legislation? When one meets with, as I have done, many representatives of transgender organizations and talks with transsexual or gender-variant Canadians, they mention three recurring areas where people have faced very serious forms of discrimination, and I want to talk briefly about those: access to health care, protection from violence, and economic inequality.

In Canada, we pride ourselves on everyone having equal access to health care. In fact, the Canada Health Act says that the primary objective of our health policy is to ensure that we protect, promote and restore the physical and mental well-being of all Canadians. However, trans Canadians find that in accessing health care, they are often denied medically necessary care by being forced to deal with the issue of their gender before they can access the service. They also suffer from under-delivery of psychological health care services and, often, insensitive or hostile treatment from health care professions based on gendered spaces in public institutions.

Thus the needs of transgendered and transsexual Canadians in non-health care related matters are urgent, but perhaps most urgent in this health care field.

Some trans people believe that in order to achieve their full identity, they require surgery. However, there is not equal access to that surgery among all the provinces in this country. By adding gender identity and gender expression to the human rights code, we can help promote access to those surgeries. However, others do not believe that surgery is necessary for their transition and are often denied access to care and other services because they have not had surgery to change their gender. Again, for transgendered people, they get hit by both sorts of discrimination, in being denied access to surgery and also sometimes being denied access to a full transition because they have not had surgery. This bill would help to solve that problem.

In terms of mental health services, we know that mental health resources in this country are already quite stretched and that people seeking mental health care are often faced with long waiting lists to see therapists, no matter what their mental health problem is. This simply further compounds the problems faced by trans Canadians.

A survey conducted by Trans Pulse Canada reports that in Ontario, rates of depression among transgendered Canadians are as high as between 61% and 66%. When we examine suicide rates for transsexual, transgendered and gender-variant people, 77% of trans people in Ontario, unfortunately, reported seriously considering suicide; 43% reported they had attempted suicide at some point; and of those who considered suicide, almost 50% were between the ages of 16 and 24. We are seriously failing trans Canadians in the area of mental health and suicide prevention in this country.

In terms of violence, there have been many surveys of transgendered Canadians showing they are subject to very high rates of violence. However, law enforcement agencies in this country do not collect statistics based on gender expression and gender identity. Therefore, we have no official statistics to tell us how serious the problem really is.

When we look at bullying, Egale Canada did a large-scale survey of LGBTQ across Canada. It found that 90% of trans-identified youth reported hearing transphobic comments daily directed at them; 23% of those students reported hearing teachers directing transphobic comments against them daily; 25% reported having been physically harassed; and 24% reported having property stolen or damaged. We can see from that small survey of trans youth that there are very high rates of violence and harassment against the trans community.

By adding this to the hate crime section of the Criminal Code, we can send a very powerful message that such is unacceptable behaviour in Canada and that the rights of transgendered people must be recognized and transgendered people afforded the right to participate fully in schools as well as other places in our communities.

Finally, in terms of employment, it is an area where trans people often face serious discrimination. Over 20% of those surveyed in Ontario by Trans Pulse Canada in the past were unemployed, which was two and half times the average unemployment rate in Ontario. Job stability is often limited and those who choose to transition in a workplace often have very serious problems in retaining their employment, due to hostility either from the employer or others in the workplace.

In conclusion, let me reiterate that the purpose of this bill is to fill a gap in Canada's human rights legal framework. It is not the purpose to create special rights for anyone. It is about equal human rights for all Canadians. Like all of us, trans people want to be able to take the advice of Oscar Wilde when he said, “Be yourself; everyone else is already taken.”

This bill will ensure that in Canada, transgendered, transsexual and gender-variant people have the freedom to be themselves and the protection, and rights guarantees, that all other Canadians have. As I have said many times before, trans-people are our brothers and our sisters, our children, our parents, our partners, our friends and our colleagues, and they deserve the same rights and protections as every other Canadians.

I look forward to the passage of this bill to help make that a reality.

Canadian Human Rights ActPrivate Members Business

April 5th, 2012 / 1:50 p.m.
See context

Delta—Richmond East B.C.

Conservative

Kerry-Lynne Findlay ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, I am pleased to have this opportunity to contribute to the debate on Bill C-279 sponsored by the hon. member for Esquimalt—Juan de Fuca, an opposition member from my home province of B.C., for whom I have respect. I think he knows that.

We studied Bill C-279 and, upon reflection, it is clear to me that the proposed amendments are unnecessary. Here is why I will be voting against Bill C-279.

As members may already be aware, the bill proposes to add the undefined terms “gender identity” and “gender expression” as prohibited grounds of discrimination in the Canadian Human Rights Act and into the aggravated sentencing provisions and hate propaganda provisions of the Criminal Code. I understand that the underlying purpose of these legislative amendments is to provide explicit protection for transsexual and transgendered Canadians. I have sympathy with the intention. However, I believe this bill as drafted does not equal the purpose.

I would like to turn first to a consideration of the proposed amendments to the Canadian Human Rights Act. The purpose of this act is to help create a society in which individuals have access to equal opportunity without discrimination. The grounds that determine what will be considered discriminatory include race, national or ethnic origin, religion, sexual orientation, disability and several others.

It is also worth recalling that this act prohibits discrimination in employment and services in areas of federal jurisdiction. For example, it protects individuals who are employed by the federal public service or federally regulated industries such as banks and airlines.

In interpreting and applying this act, the Canadian Human Rights Tribunal has already accepted and considered several complaints brought by transsexuals under the ground of “sex”. In fact, the ground of sex in anti-discrimination laws is interpreted broadly and has evolved over the years. It is now understood to cover discrimination complaints based not just on sex but also on gender attributes, pregnancy, childbirth and, more recently, transsexualism. Therefore, for those complaints brought by transsexuals, the tribunal has used the existing grounds already contained in the act.

For example, in one complaint brought by a transsexual inmate in a federal prison, the tribunal dealt with the complaint and Correctional Service Canada developed a policy to deal with potential future cases. In another complaint brought by a transsexual person against a bank, again the tribunal dealt with the complaint under the ground of sex. In fact, I presided over a successful mediation of just such a case when I was a member of the Canadian Human Rights Tribunal.

In deciding that transsexuals are already protected by our federal human rights law, the tribunal's approach is consistent with that taken by the provincial human rights tribunals that have also found discrimination against transsexuals to be covered by the existing ground of sex.

Since Canadian tribunals and courts have already recognized discrimination against transsexuals as a form of sex discrimination, what is the bill's purpose in proposing to add these two new grounds to the act, which do not refer to transsexualism itself but to undefined concepts of gender identity and gender expression?

The point of the prohibited grounds of discrimination in the Canadian Human Rights Act is not to identify particular groups. For example, the act does not mention men and women but the broader ground of sex. It does not list Christianity, Judaism, Islam or other specific religions but simply includes the ground of religion. The act contains the ground of ethnic origin but again does not list out specific minority groups. The act is structured in this way to treat all Canadians equally and fairly and to avoid singling out for recognition specific manifestations of a given characteristic. This bill departs from that approach.

For similar reasons, we may wish to ask ourselves whether it is necessary to add these grounds to the sentencing provisions of the Criminal Code. The section in question in the code lists a number of deemed aggravating circumstances on sentencing, including evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or any other similar factor. Again, the list includes sex and it also refers to “any other similar factor”, so judges may already be able to impose longer sentences for hate crimes against transsexual persons in appropriate circumstances.

Thus, it appears there are already the necessary legal protections in place to protect transsexuals. I am not sure why it is necessary to add these new grounds when the tribunals and courts have been clear that complaints brought by transsexuals will be dealt with under the ground of sex and this ground is also included in the aggravated sentencing provision.

Furthermore, this bill adds even further uncertainty, because the terms proposed are not commonly used and are not defined by the bill itself, hence the questions we heard earlier.

It is my understanding that “gender identity” means individuals' self-conception as being male or female or their sense of themselves as male or female. It is my further understanding that “gender expression” refers to how a person's gender identity is communicated to others through behaviour, speech, dress or mannerisms. However, as these terms are neither commonly understood nor defined, their use would introduce vagueness into the law. I am particularly concerned with the unclear term “gender expression”.

We should ask ourselves what new sorts of discrimination claims would be brought before the commission and the tribunal, if this ground were to be added to the Canadian Human Rights Act. How would employers know what kind of workplace behaviour and expression would be prohibited? Would a federally regulated employer, such as an airline or transport company, be able to require the wearing of a prescribed uniform, for example? The answers to these questions are not clear to me, and they are questions we should consider carefully.

Finally, I would like to consider the role of tribunals and courts in shaping public policy. As I have said, these terms are vague and left undefined by the proposed bill. How can we ask tribunals and courts to apply something that we as legislators do not clearly understand? The fact that we have no idea how tribunals and courts would interpret these terms is also an issue we should consider.

In conclusion, I have explained that the amendments proposed by this bill are largely unnecessary, given the jurisprudence to date. The Canadian Human Rights Tribunal has already dealt with several complaints brought by transsexuals under the existing ground of sex discrimination. I mentioned a few. There is no need to add new and vague terms to the Canadian Human Rights Act or the Criminal Code. I would therefore urge my colleagues on both sides of the House to oppose this bill for those reasons.

Canadian Human Rights ActPrivate Members Business

April 5th, 2012 / 2 p.m.
See context

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I rise today to speak to Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code on the matter of gender identity and gender expression.

As my colleagues have noted, Bill C-279 would amend the Canadian Human Rights Act to add both gender identity and gender expression as prohibited grounds of discrimination. In addition, the bill would also amend the Criminal Code in the matter of its anti-hate provisions to include gender identity and gender expression in the definition of what constitutes an identifiable group, as well as adding gender identity and gender expression to the Criminal Code's list of aggravating factors that affect sentencing.

Accordingly, Bill C-279 constitutes an important effort to provide human rights protections to a group that remains the victim of significant discrimination in our society. I would be remiss if I did not note the hard work in previous Parliaments of the former member for Burnaby—Douglas and the current member for Vancouver Centre, both of whom have introduced similar versions of this legislation in previous Parliaments, and the member for Esquimalt—Juan de Fuca today for his legislative initiative and eloquent and comprehensive presentation of this issue on matters of fact and law.

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. Trans-phobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.

The statistics on trans-phobia, which my colleague from Esquimalt—Juan de Fuca pointed out in his remarks today, speak for themselves. Indeed, 95% of transgendered students feel unsafe at school and 9 out of 10 have been verbally harassed due to their gender expression, according to Egale Canada.

Further, 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. In particular, and this is shocking, 97% of transgender respondents in a recent survey reported experiencing harassment or mistreatment at work on the basis of gender identity or expression.

By adopting the amendments that have been proposed in Bill C-279, Parliament can send a strong message of support to transgendered Canadians, affirming their identity and acknowledging their struggles. Indeed, this legislation, again as my colleague from Esquimalt—Juan de Fuca pointed out, ensures that they will enjoy the legal protections accorded to other targeted groups. I enjoyed his quote from Oscar Wilde in this regard.

It is most appropriate that this debate is taking place on the eve of the 30th anniversary of the Canadian Charter of Rights and Freedoms, the centrepiece of our Constitution, that has promoted and protected rights, particularly those of the disadvantaged and discriminated against. I note with regret that, thus far, the 30th anniversary of our charter has gone without notice from the government. It is clear that the charter has had a transformative impact not only on our laws but also on our lives, not only on how we litigate but how we live. In particular, the charter enshrines equality rights such as we see in section 15. It is in this spirit of equality that I join in the support for Bill C-279.

A crucial equality rights issue raised in Bill C-279 is the protection of transgendered individuals against hate speech. Indeed, the promotion of hatred and contempt against an identifiable group results in prejudicial harm to the individual and group targeted by that hate speech. This harm-based rationale, as the Supreme Court characterized the Keegstra, Smith and Andrews and Taylor cases, in which I intervened as counsel on behalf of the intervenant amicus curiae, supports the sanction of hate propaganda as protective of equality. As the court put it, the concerns resulting from racism and hate mongering are not simply the product of its offensiveness, but the very real harm that it causes. Thus, by affording protections to transgendered Canadians under section 319 of our Criminal Code, this House would promote their equality rights under the charter.

Fears that the inclusion of gender identity in Canada's hate speech laws may spark vexatious litigation, thereby creating a chill on free expression, are, simply put, without any foundation.

The Criminal Code has a built-in filtering mechanism that requires the Attorney General's consent to prosecutions for the wilful promotion of hatred under subsection 319(2). Moreover, prosecution for criminal incitement to hate under subsection 319(1) is subject to a high threshold whereby the incitement must be “likely to lead to a breach of the peace”.

Bill C-279's proposed amendment to subparagraph 718.2(a)(i) also constitutes a worthy effort to promote the equality rights of the transgendered. The amendment would mandate judges to consider in sentencing whether a hate crime was carried out on the basis of gender identity or gender expression.

Given what we know about the discrimination that transgendered individuals face, the failure to recognize them in section 718 would send the courts a problematic message that an attack targeting some vulnerable groups, such as ethnic and religious minorities, is more worthy of the court's special consideration in sentencing than an attack targeting other vulnerable groups, namely, transgendered people.

The proposed amendment to the Canadian Human Rights Act is equally worthy of adoption. To quote Justice La Forest of the Supreme Court of Canada, gender equality and gender identity must be included as a protected ground in the Canadian Human Rights Act because “to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issue to remain invisible.” This is a clear and compelling consideration with respect to the inclusion of this ground.

Some members of the House have argued that Bill C-279 is unnecessary because transgendered people are already protected under the existing categories of sex and disability. With respect, this position is misinformed.

First, gender identity and gender expression do not refer to biological sex or sexual orientation. Rather, the terms refer to an inner feeling of being male, female, both or neither. Second, gender identity and gender expression are not a disability. Rather, they are a sense of self and a source of identity. To confound gender identity and gender expression with sex and disability is to ignore the unique experiences of discrimination and disadvantage that are faced by transgendered Canadians.

Finally, to borrow again the language of Justice La Forest of the Supreme Court of Canada, 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, Parliament would enable the Canadian Human Rights Commission to keep statistical account of incidents of discrimination against transgendered individuals. The ability to compile and analyze data on discrimination against transgendered persons would be crucial in confronting the scourge of discrimination that they continue to face in our society and might also guide educational efforts in the broader community.

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

However, the Canadian Human Rights Act will only achieve this remedial purpose if it grants recognition and protection to the most vulnerable groups in Canadian society. I am proud that in 1996, guided by these principles, the Liberal Party amended the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination. I am delighted that members of the House continue to carry on the fight against discrimination on this, as we mark the 30th anniversary of our Charter of Rights and Freedoms, by seeking to add to the prohibited grounds both gender identity and gender expression and provide remedial protection to this most vulnerable and disadvantaged group.

Canadian Human Rights ActPrivate Members Business

April 5th, 2012 / 2:20 p.m.
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Conservative

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.

Canadian Human Rights ActRoutine Proceedings

September 21st, 2011 / 3:10 p.m.
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NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

moved for leave to introduce Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

Mr. Speaker, this is a reintroduction of the bill that passed this House before the last election but, unfortunately, not the Senate. There is an urgent need for this legislation to help end the discrimination, social exclusion and. all too often. violence that face transgender Canadians.

I hope to work with members from all parties to ensure that this important bill becomes law. Let us take this step together so that all the Susans, Regans, Jordans, Daphnes, and all our other transgender friends and family members can take their rightful place in all aspects of Canadian life.

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