Bill C-16 (Historical)

An Act to amend the Canadian Human Rights Act and the Criminal Code

This enactment amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination.
The enactment also amends the Criminal Code to extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.

Canadian Human Rights Act

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Does the member have unanimous consent?

[Some hon. members]

Agreed.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, I rise this morning to speak to Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code by expressly including gender identity and expression as prohibited grounds of discrimination under the Canadian Human Rights Act.

Over the last number of years there has been increased awareness about issues concerning transgendered Canadians. As result there is greater understanding of and sensitivity to transgendered persons.

There is no doubt that it was not long ago in Canada that it was difficult to be transgendered, and I would submit that there are many challenges that transgendered Canadians face today. Quite frankly, I think the vast majority of Canadians stand in opposition to discrimination against transgendered persons. I certainly oppose discrimination against transgendered persons. In the context and the spirit of opposition toward discrimination against transgendered Canadians, I support the underlying intention of Bill C-16.

That said, while I support the underlying intention of Bill C-16 and will be supporting the bill so it can at least get to committee, I acknowledge there are legitimate questions about whether the bill is necessary from a legal standpoint. I want to emphasize that I say this from a legal standpoint, because I am not suggesting and am not talking about discrimination against transgendered persons, because we are opposed to that. Rather, I am talking more broadly about whether Bill C-16 would add anything substantively at law to protect transgendered Canadians. I would suggest that the answer to that is likely not.

Sex and sexual orientation are prohibited grounds of discrimination under the Canadian Human Rights Act and under various provincial human rights codes. Sex and sexual orientation have been broadly interpreted by the Canadian Human Rights Tribunal, by provincial human rights commissions, and by the courts. As a result of that broad interpretation, today in Canada discriminating against transgendered Canadians constitutes a prohibited ground of discrimination under the Canadian Human Rights Act. In that regard, Bill C-16 would not add or take anything away. Really, at law, it would maintain the status quo.

The fact that transgendered Canadians are protected under the Canadian Human Rights Act is demonstrated by a number of decisions by the Canadian Human Rights Tribunal. Here I am talking about Kavanagh and the Correctional Service of Canada case; Montreuil and the Canadian National Bank case; Montreuil and the Canadian Forces case; and the Nixon case out of the British Columbia Court of Appeal, which upheld a ruling of the British Columbia Human Rights Commission in 2005. All three Canadian Human Rights Tribunal cases dealt with alleged discrimination on the basis of gender identity. All of the cases were in the context of federally regulated workplaces and therefore engaged the Canadian Human Rights Act.

In all three cases, the Canadian Human Rights Tribunal determined that sex, which constitutes a prohibited ground of discrimination under the Canadian Human Rights Act, included transgender Canadians. Bill C-16 does not really add anything substantively at law. Therefore, it begs this question. What does Bill C-16 actually do? I would suggest that Bill C-16 is symbolic. I recognize that this is important to a number of people. I certainly know that some in the transgender community would say that words have meaning and that they take comfort by the express inclusion of gender identity and expression in the Canadian Human Rights Act. I acknowledge that. However, while I acknowledge and am sympathetic to it, I would also state that legislating on the basis of symbolism is not a good way of going about crafting legislation.

What is more, I would submit that Bill C-16 is inconsistent with the way human rights legislation has been drafted across Canada. Human rights legislation, in terms of the broad prohibited grounds of discrimination, is crafted broadly. They are broad torts. We are talking about prohibited grounds, such as sex and sexual orientation, which I have already discussed, and age, disability, race, and ethnicity. There are many groups and subgroups that could fit into any one of those expansive terms. However, we do not list every single group or subgroup because it would be impractical to do so. It would be legally unnecessary to do so because those groups and subgroups are already protected by those broad categories, and in some cases it might even be legally problematic, as there might potentially be unintended consequences from creating a laundry list of various groups. Therefore, Bill C-16 is not consistent with how how human rights legislation has been drafted.

That said, I reiterate my earlier point that there are many in the transgender community who say that this would be meaningful to them. From the standpoint that I oppose discrimination against transgender Canadians and to the degree that the inclusion of gender identity and expression would remove any ambiguity that potentially exists, which I do not believe there is, but to the degree that there might be, I am prepared to support Bill C-16 because I support it in principle so we can get it to committee. As a member of the justice and human rights committee, I look forward to the opportunity to look more closely at the bill when it gets to committee.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I appreciate the comments made by the member. I thought it was interesting that he talked about the underlying intentions of Bill C-16 that he, representing the Conservative Party, appreciates. He understands why that commitment on the issue is so critically important.

My question for the member is with respect to the symbolism he referred to. I would argue that the minster who spoke before him put forward a very strong case that this is more than just symbolic. The member said that he and the Conservatives would be supporting the bill's passage to committee stage, which I applaud. The question I have for the member is this. If he believes that this legislation goes beyond symbolism, does he then see himself and the Conservative Party supporting it going both to committee and third reading?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, let me just clarify that there will be a free vote on our side. Members will have an opportunity to look at the bill and make a decision. However, on the broad question of whether Conservatives oppose discrimination against transgendered persons, I can say that Conservatives are united in our opposition to discrimination, as are the vast majority of Canadians.

I believe that the bill is well intentioned, but it is important that there be careful study and review. I understand this has been debated before, but we need to look very carefully at what all of the implications of the bill would be to make sure that it in fact would do what the minister says it would do and that there would not be any unintended consequences.

I certainly have heard from members of the transgendered community who have spoken in strong support of this legislation. I take their sentiments very seriously, which is why I want to support the bill so we can get it to committee stage for further study and review.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I want to thank the member for his speech and support of the bill in principle, and I respect the sincerity with which he has offered his comments.

He has made the argument that the bill is really unnecessary, which we have heard each time it has come before the House. I wonder whether he is familiar with the position of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal, which have both said repeatedly that there are gaps in the current legislation and that there are good legal reasons for amending the Criminal Code hate crimes section and the Canadian Human Rights Act to make sure that transgendered Canadians are explicitly covered. Those are the legal arguments they have both made.

He also said that doing things symbolically in the Criminal Code is not a good idea. However, the previous Conservative government spent a lot of time saying it is important for the Criminal Code to denounce unacceptable behaviour in our society. I submit that the bill is very similar to lots of legislation introduced by the previous government, which sought to label certain behaviour as not acceptable in our society.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, I want to thank the member for his question and for his leadership on this issue.

Certainly, the question of gaps under the Criminal Code, in terms of existing law, is something that the justice committee will have to study very carefully. However, based on my review of the cases that have been adjudicated by the Canadian Human Rights Tribunal and cases that have gone to levels of courts across the country, including the British Columbia Court of Appeal, I believe that the existing language does protect transgendered Canadians. However, the question of potential gaps is something the justice committee will have to look at very closely, should the legislation pass, which I anticipate it will.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, I rise today to speak to the government's Bill C-16.

In its current form, I cannot support this bill for a number of reasons. Let me assure all of my colleagues in this House and, indeed, all Canadians that I do not oppose this bill because of any hatred for, any fear of, nor any malice toward anyone who is dealing with questions of gender identity.

Before I outline my concerns about the potential negative outcomes of Bill C-16, allow me to say clearly that I am supportive of any initiatives that will protect persons from hate speech. I am supportive of the need to guarantee equal rights. I also agree that there can be no tolerance for bullying or violence of any kind, or for any reason.

Parliamentarians and all Canadians have a duty to prevent bullying, hate speech, violence, or any such behaviour, but I am wary of the demands of any government-imposed value systems that would change fundamental definitions and principles of society. The imposition of fundamental value system changes of this magnitude must be viewed with some degree of skepticism. Too much is at stake for us to proceed without caution, if we proceed at all.

I am supportive of equal rights for all, but in my opinion this bill goes far beyond equal rights into the territory of granting extra rights or special rights for some; and in the process of granting those extra rights for some, we automatically diminish and deny the legitimate time-honoured rights of many others.

Relating to Bill C-16, I have a number of concerns. Some of the concerns address immediate potential negative repercussions, while others relate to the potential for long-term effects and outcomes of the enactment of this bill.

My concerns lie in four areas. I am concerned that this bill would cause fear for many Canadians, fear that they would not be able to even discuss public policy issues, such as this one, on which they may disagree with the government-imposed agenda. I am concerned about the potential harm to innocent children and youth as a result of the possible invasion of their privacy. I am concerned that the terms gender identity and gender expression are very subjective terms, far too subjective to be used in the context of legal documents, particularly in the Canadian Human Rights Act or the Criminal Code of Canada.

Finally, I am concerned that, when government adopts dramatic changes to public policy as it relates to gender identity and sexuality, with minimal research or support, the results could be harmful for all members of society, but especially for those we are actually trying to help; that is, transgendered children or youth.

Let me address these points in reverse order. Would this bill inadvertently harm those whom we are trying to help? There have been many eminent scholars, medical practitioners, psychologists, psychiatrists, and professional organizations that have raised legitimate concerns about the current treatment of the transgendered person and are especially concerned about long-term negative effects of hormone treatment and reassignment surgery.

The American College of Pediatricians urges educators and legislators to reject all policies that condition children to accept a life of chemical and surgical impersonation of the opposite sex. They point out the biological medical dangers associated with the use of puberty-blocking hormones and the follow-up use of cross-sex hormonal medication—testosterone and estrogen—which are needed in late adolescence. These are known to be associated with dangerous health risks including, but not limited to, high blood pressure, blood clots, stroke, and cancer.

There is another sobering statistic, and that is the increased suicide rate. During my 10 years here in Parliament, possibly the one issue that has received most of my attention has been suicide prevention. Motion M-388, dealing with Internet predators, and Bill C-300, An Act respecting a Federal Framework for Suicide Prevention were private members' business initiatives that I tabled and worked on diligently for many years.

The research is clear that the suicide rate for adults is 20 times higher for those who have used cross-sex hormones and undergone sex reassignment surgery, even in Sweden, which is among the most LGBTQ-affirming countries.

The American College of Pediatricians states that:

Conditioning children into believing that a lifetime of chemical and surgical impersonation...is normal and healthful is child abuse. Endorsing gender discordance as normal via public education and legal policies will confuse children and parents, leading more children to present to “gender clinics” where they will be given puberty-blocking drugs. This, in turn, virtually ensures that they will “choose” a lifetime of carcinogenic and otherwise toxic cross-sex hormones, and likely consider unnecessary surgical mutilation of their healthy body parts as young adults.

Research reported by the American Psychiatric Association in Diagnostic and Statistical Manual of Mental Disorders, fifth edition, clearly shows that the large majority of boys and girls who experience gender dysphoria will not experience the persistence of these feelings following adolescence.

I also urge my colleagues to listen to Dr. Ken Zucker, professor in the department of psychiatry and psychology at the University of Toronto, and to Dr. Susan Bradley, psychiatrist in chief at the Hospital for Sick Children and head of the division of child psychiatry and professor emeritus at the University of Toronto. They state:

It has been our experience that a sizable number of children and their families can achieve a great deal of change. In these cases, the gender identity disorder resolves fully, and nothing in the children's behavior or fantasy suggest that gender identity issues remain problematic.

In light of the input from these groups and experts in psychiatry and psychology, at the very least it is important that government does not legislate ideological conformity on this issue. We need to take a stand for good public policy as it relates to gender and sexuality, and to base our decisions on scientific research that will help protect against devastating lifelong negative consequences.

Another major concern for me in Bill C-16 is the issue that the terms gender identity and gender expression are very subjective terms, far too subjective to be used in the context of legal documents. Would policies protecting people on the grounds of gender identity and expression merely provide safety and protection—that is, provide a shield against against abuse—or would they be used to drive a broader agenda? As legislators, are we simply trying to protect the sexual minority from verbal and physical abuse, or are we also intending to impose a cultural shift in our very understanding of human sexuality and gender expression? What would the impact be on immigrant groups and faith groups, the majority of which are at odds with gender fluidity concepts? Would they have the freedom to teach their children and practise their beliefs without being accused of hate speech or a human rights violation?

For me and the millions of other Canadians who acknowledge the supremacy of God, as the first words of our charter affirm, there is the reality that our faith journey is the foundation of our world view. If freedom of religion is to be embraced, then it is of paramount importance that Bill C-16 not infringe upon that fundamental freedom. It is important that government clarify the nature of the protection being afforded and how it expects terms such as gender identity and gender expression to be interpreted. The implications are too unpredictable. Far too much is left to interpretation that would result in unnecessary accusation of human rights violations as well as litigation and endless court cases to further tie up our court system.

Another concern is the potential harm to innocent children. As I stated earlier, I am in total support of equal rights. Therefore the question needs to be asked: Where are the equal rights? Is it equal rights of the boys or girls and of the young men or women who expect to find only those of their same gender in their change rooms? Is it fair to have their rights trampled upon by this imposition of extra rights for some? Common sense dictates that the potential for abuse of this new freedom to self-identify with a change room of one's own choice could very well lead to bullying, harassment, and even sexualized violence in these public spaces. One of the pitfalls of Bill C-16 is its failure to recognize the potential that heterosexual predators who, while not transgendered themselves, would take advantage of the protection of this bill to hide behind their predatory pursuits.

Yes, I am concerned for the safety and well-being of young children and youth, who deserve their right to privacy.

Finally, I am concerned about the fear this bill may cause for many Canadians. I fear they will not be able to even discuss public policy issues such as this one, on which they may disagree with the government agenda. Any law that limits legitimate discussion and debate of closely held beliefs presents a danger to freedom of expression, a fundamental value held dear by people across the political spectrum. The right to disagree must be viewed as sacred in our society. It is the lifeblood of both new ideas and age-old protections.

I am simply asking that those who support this bill respect my right and the rights of millions of Canadians not to be charged with human rights violations because we make our views known or because we disagree with others' views. We can and must respect each other even in spite of holding opposing views. It is my hope that we can openly disagree without labelling each other.

[Kennedy Stewart, NDP, Burnaby South, BC]

Madam Speaker, first, I have had the privilege of succeeding Bill Siksay as the MP for Burnaby South, who has worked on this issue for many years. I also had the great privilege of seconding the bill when my friend, the member for Esquimalt—Saanich—Sooke, put it forward in the last Parliament. This issue is very important to me, as it is to many members in the House.

Does the member actually know any transgender people and has he sat down and spoken with them about their day-to-day struggles and how much this bill would help alleviate those day-to-day struggles?

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, as I indicated in my remarks, I do not expect that all people in this chamber or, in fact, all Canadians will agree with my perspective on the bill.

Yes, I do know transgender people and, yes, I have spoken with people who have these issues to deal with. However, as I outlined in my comments today, it is my concern that if we are really trying to help people who are struggling with these issues, we be open and honest with them about some of the potential dangers they may face.

A famous biblical statement says “...the truth will set you free”. I believe it is up to us in the chamber, especially where Parliament should hear the views from all perspectives, to hear and respect the views from all sides.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, there are many people of many faiths in our country who have a belief that gender identities are male and female. Where there is freedom, it should be okay to believe in various gender identities and it should be okay to not believe that.

Is the member concerned that the legislation would weaken the protections for freedom of religion in our country?

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, I outlined in my comments a number of potential concerns that may need to be addressed in the future.

I know for a fact, having spoken with many people, even over the last weekend, that some groups are very concerned about the potential impact this would have on faith communities or on immigrant groups that, by and large, are not open with this idea of gender fluidity. It is my concern that as a faith group leader, as a parent in a faith group, we need to have the freedom to share our beliefs with our children and grandchildren and not be afraid that if we do not necessarily go along with the government-imposed agenda, we will somehow be accused of hate speech or of violating some Charter of Rights and Freedoms points.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, first, the member for Kitchener—Conestoga has always treated me with great respect, despite his reservations about my own identity as a gay man. However, he is error when he says that faith communities and their majority reject transgender people. In fact, the vast majority of faith communities in our country have made clear expressions of their support for this bill. That was made very evident in the last Parliament.

Raising the question of religious freedom and freedom of speech could be raised in every context. The bill would do nothing to restrict people's freedom to their own beliefs or to teach their own children. What it would do is try to protect the expression of hatred and the kind of discrimination in public that takes place each and every day against transgender Canadians.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, I want to clarify what I think I heard my colleague say. I do not believe I said that the large majority of faith groups or immigrant groups were opposed to transgender people. They are certainly not. We are welcoming of them as persons. We simply may disagree with the points of Bill C-16 when it comes to the subjectivity of the term “gender expression and gender identity”. Certainly, I will stand in this place, and I hope all my colleagues would agree with me, and oppose any form of discrimination that is based simply on gender identity or sexual identity. However, we do not necessarily endorse all the implications that the bill may bring forward down the road.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I would like to ask for the unanimous consent of the House to split my time in the opening round of debate with the member for Hochelaga.