Bill C-279 (Historical)

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

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.

Canadian Human Rights Act

[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.

[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.

The House resumed from April 5 consideration of the motion 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.

[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.

[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.

[Kerry-Lynne Findlay, Conservative, Parliamentary 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.

The House resumed consideration of the motion 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.

[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.

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

Thank you.

Thank you, Mr. Toews, for having come to meet with us today.

I agree that your privileges have been breached. There is not a doubt in the world. I think that all the members of this committee share that opinion. Like several of the members who sit on this committee, I am concerned about what we and the committee can do to remedy this. In my opinion, the measures this committee should consider are not obvious. When dealing with matters of privilege, we normally turn to the Speaker of the House, or the chair of the committee, who guides us.

In this case, we want to find a solution regarding these threats, but I don't know if this committee is in a good position to solve the issue. Certain bills undeniably generate debate. You mentioned during your first statement that this was the case for bill C-279, on gender identity and gender expression. The purpose of that bill was to introduce solutions for dealing with certain threats. I don't think it generated threats against a member of Parliament. So I don't know if it is really a good example.

Of course, this is not the first time that a member of Parliament has been threatened. However, since this happened outside of this Parliament and since you are the Minister of Public Safety, it seems to me that you are in a very good position to tell us what solutions you think this committee should look at.

[Vic Toews, Conservative, Provencher, MB]

Thank you, Mr. Chair, and thank you, colleagues.

I sincerely wish that the circumstances surrounding my appearance today did not exist. On February 29, I rose in the House on a question of privilege to ensure that the activities seeking to intimidate me with respect to my duties as a member of Parliament, duly elected by the people of Provencher, were appropriately addressed by the House. This intimidation has been aimed at me solely for doing the most basic duty of a parliamentarian—namely, introducing legislation within the exclusive jurisdiction of the Parliament of Canada.

Such intimidation should gravely concern all parliamentarians. We have a special obligation to our constituents to act without fear on the principles that they elected us to defend. This is why I'm pleased that your committee has taken up this serious matter.

As you know, on February 14 of this year I introduced Bill C-30, the Protecting Children from Internet Predators Act. In the days and weeks that followed, I and my office received a great deal of communication from Canadians. As I stated in the House, these ranged from the supportive to the critical and indeed to the humorous.

Specifically of concern were videos posted on YouTube publishing various unfounded allegations about my personal life and threatening to do more if I did not take specific action with regard to Bill C-30. Clearly the actions and threatened actions contained in these videos constitute an attempt by the creators of the videos to intimidate me with respect to proceedings in Parliament.

The online group called “Anonymous” that posted the videos hides behind masks and their claim to anonymity. It is their threats that clearly attempt to intimidate me and in fact all parliamentarians as we carry out our democratically elected responsibilities.

I am prepared to debate, and we must engage in vigorous debate, on matters before Parliament, but these online attacks launched on both me and my family have crossed the line.

Mr. Chair, all parliamentarians need to be concerned.

On February 29, the Liberal House leader repeatedly stated that there were clearly threats made against me, in fact going as far as stating, “...yes, indeed, there clearly are threats being made.”

The Liberal House Leader also cautioned the Speaker in finding a prima facie breach of privilege, and then stated that these threats “...do not constitute a breach of privilege.”

O'Brien and Bosc state that:

Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege”....

I would remind the chair and all committee members that in the videos published, there was a broad threat to all parliamentarians. I quote:

And to the rest of the Parliament of Canada: you would do well to mind your words about Anonymous. Any attempt to score political points by claiming we are associated with a particular political party will not be met kindly. Your party affiliations are utterly irrelevant to us.

Quoting again:

To the rest of those who support Bill C-30, do not believe for a moment that you are untouchable.

Mr. Chair, the Liberal House leader and all Canadians should be concerned about the threats posed to our democracy by online bullies and thugs who seek to intimidate duly elected members of Parliament. It is on this aspect that I encourage you to focus your study.

Let me be clear: I will not be intimidated by thugs who hide behind masks and anonymity. Our democracy demands that elected officials be free to debate any and all matters. I firmly believe that all members of this House must be able to serve their constituents, introduce legislation, and debate all matters free from intimidation, obstruction, and interference.

The fact of the matter is that today threats are directed at me for a bill that has drawn much public debate. Tomorrow it could be any of you, either government or opposition. In fact, there are those of you on this committee who have introduced legislation in the House, both from government and opposition. We have seen private members' bills that have produced vigorous debate, with strong positions being taken on both sides of the House.

One only needs to look at this 41st Parliament. Bill C-377 is a bill that would require the public disclosure of the finances of labour organizations. Heated debate and strong positions have been taken on this bill.

Bill C-276 and Bill C-279, Liberal and NDP bills respectively, seek to amend the Canadian Human Rights Act to include gender identity and gender expression. While not yet debated in this House, similar bills have been introduced in previous Parliaments, and strong positions were taken.

Whether or not an MP introduces legislation, all MPs take positions on motions, legislation, and House and committee debates. Mr. Chair, that is exactly what we should be doing. That's why we were elected. Canadians expect this.

I do not believe that members of Parliament should be held hostage, afraid to do what they feel is right, for fear that unnamed thugs might threaten them. Canadians deserve better. I was pleased that our Speaker upheld the 1973 ruling of Speaker Lamoureux, wherein he stated that he had no hesitation in reaffirming the principle that parliamentary privilege includes the right of a member to discharge his or her responsibilities, as a member of the House, free from threats or attempts at intimidation. Attacks on the personal life of a member of Parliament, while not appropriate, can be judged by the public where there is public accountability. The threats of nameless, faceless thugs who seek to intimidate legitimate democratic proceedings should concern all parliamentarians, and indeed all elected officials in our great country.

Mr. Chair, in your committee's deliberation I encourage you to view this question of privilege as a matter than concerns all parliamentarians, not just me.

I look forward to discussing this matter further and to answering any questions you may have.

Thank you, Mr. Chair.

[The Chair, Conservative, Harold Albrecht]

Are there any comments or questions?

I think, in fairness, this one could also probably have the same question asked of it in terms of the potential of the need for a royal recommendation.

I see no opposition to allowing it to proceed to votability.

It is so ordered for Bill C-383.

We'll move on to Bill C-279.

[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)