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

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Madam Speaker, here is a boy, and here is a girl. Easy, right? Not so fast. Let us just say that it is a bit more complicated than that. Sex assignment is not always clear-cut. Genetically, a person with two X chromosomes is a woman, and a person with an X chromosome and a Y chromosome is a man. However, some people have just a single X chromosome, and others have three. Others have two or three X chromosomes and one Y chromosome, while still others might have two Y chromosomes and one X chromosome. Clearly, this is anything but simple.

The bill before us today, Bill C-16, makes no mention of genetics. However, it does address an equally complex subject, that of gender identity and gender expression.

As far back as the 1950s, we began to understand that a person cannot be defined merely by his or her physical sexual characteristics and to distinguish between “sex” and “gender”. In 1994, United States Supreme Court Justice Antonin Scalia wrote the following in a briefing:

The word gender has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine is to male.

I think it bears repeating, so once again, the word “gender” has acquired the new and useful connotation of cultural or attitudinal characteristics as opposed to physical characteristics, distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine is to male.

Justice Scalia clearly states that “sex” and “gender” are two different things.

Transgendered individuals are people whose sexual identity does not correspond to the physical sexual characteristics with which they were born. They literally do not feel comfortable in their own skin, in the body nature gave them. They feel feminine, but have a male body, or they feel masculine, but have a female body.

With that in mind, it is easy to imagine the discrimination, prejudice, harassment, and violence these individuals are often subjected to. A shy teen, a small man, and a kid with above-average intelligence are often harassed. Now imagine someone who is transgendered.

Statistics are an excellent way to illustrate the discrimination transgendered people are subjected to. In Ontario, for example, 71% of transgendered individuals earn less than $30,000 a year. My colleague from Esquimalt—Saanich—Sooke provided some statistics earlier on poverty rates among transgendered people, and those figures were far more grim than what I just mentioned.

According to Egale Canada, 90% of of transgendered students reported being bullied on a daily or weekly basis. That is a lot. In addition, a few months ago, a medical clinic in Montreal that performs gender-affirming surgery was targeted by arson.

The prejudice and violence are very real. That is why, over the past several years, the NDP has been introducing bills in the House of Commons of Canada to stand up for the rights of transgendered Canadians and protect them from discrimination.

The main purpose of these bills was to add protections to the Canadian Human Rights Act and the Criminal Code based on gender identity and gender expression. That is what Bill Siksay, the former NDP member for Burnaby—Douglas in British Columbia, did in 2005. Because he thought this cause was so important, he introduced the bill twice in the House of Commons, in 2006-07 and 2008-09.

This issue is so important to the NDP that my colleague from Esquimalt—Saanich—Sooke, who sits beside me, took up the torch and almost succeeded in having the bill passed in Parliament. The Green Party, the Bloc Québécois, and many Liberal and Conservative members voted in favour of it.

However, the unelected and unaccountable Senate decided to let the bill die on the Order Paper, even though it had been passed by members who were duly elected by Canadians.

As a result, after over 10 years of debate, these people, who are too often the victims of harassment and violence, still do not have any protection. The NDP is therefore pleased to see the government introduce Bill C-16. We have been asking for this for a long time. However, I am worried that this is just smoke and mirrors.

Since I am an optimist, I want to believe that the government really intends to protect this vulnerable segment of the population. After all, the last time, all of the Liberal members who were present for the vote voted in favour of Bill C-279, which was introduced by my colleague from Esquimalt—Saanich—Sooke.

However, this time, the context is different. Today, the Liberals form the government and hold a majority of seats in the House of Commons. They can therefore ensure that Bill C-16 is passed at second and third reading. I challenge them to do so.

The House has passed this bill twice already and the government can ensure that it passes quickly through all stages of the legislative process. Then there would be one remaining important stage, which, in my political party, we would be happy to do without. However, since the Senate still exists, we will have to work with it. I challenge the Liberals to talk to their Senate colleagues, those the Prime Minister kicked out of the Liberal caucus, but who still feel like Liberals, and to convince them that the changes that Bill C-16 makes to the Canadian Human Rights Act and the Criminal Code are just and important to transgendered people.

As far as my Conservative colleagues are concerned, during the March 2013 vote, 18 of them, including some cabinet ministers, supported a similar bill introduced by my NDP colleague from Esquimalt—Saanich—Sooke. Other members among their ranks, including their leader, recently said that they would support Bill C-16. I hope that many others will join them to ensure that this bill is finally passed.

I would hope that, as with the Liberals, these Conservative members who see the merits of this cause will work to ensure that their Senate colleagues do not allow this bill to die on the benches of the other place yet again. I think it would be a national disgrace if this bill is not passed.

Bill C-16 would add gender identity and gender expression to the list of prohibited grounds of discrimination in section 2 of the Canadian Human Rights Act. It would also amend the Criminal Code to include gender identity and gender expression as distinguishing characteristics protected under section 318, and as an aggravating circumstance to be taken into consideration under section 718.2, hate crimes, at the time of sentencing.

Since 1970, 948 transgendered people have been murdered around the world. This number is probably much higher, but most countries, including Canada, do not note the status of transgender in files involving violence.

Nevertheless, the evidence is clear: transgender people are victims of discrimination, prejudice, harassment, and violence. Therefore, it would be disgraceful to let down transgender Canadians once again. Trans and non-binary gender Canadians have been waiting for far too long to have legal rights in Canada.

Let us work together for this humanitarian cause and ensure that Bill C-16 passes quickly in the House of Commons and in committee, and just as quickly in the Senate, so that it becomes a law that Canadians can be proud of.

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

Madam Speaker, I thank the hon. member for her question and I know her great sincerity in addressing this issue before the House. The simple answer is of course I do. It is not the total solution. Passing laws never solves everything, but passing a law like Bill C-16 is an expression of our collective will as Canadians to do better and our collective will to make sure that we are an inclusive society that leaves no one behind.

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

Madam Speaker, I agree with the member for St. Albert—Edmonton that Bill C-16 does not actually add anything to the legal framework, but it does not take anything away either. One concern I have is that even with the existing laws that we have in the provinces and federally, we continue to see discrimination and persecution of transgendered people. Does the member believe that implementing Bill C-16 will really fix this problem?

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

Madam Speaker, I am pleased to rise today in support of Bill C-16, and I am pleased this time to be supporting a government bill to guarantee the same rights and protection to transgender Canadians that the rest of us already enjoy.

I thank the Minister of Justice for adopting my original private member's bill as a government bill, and for inviting me along to her press conference. I also want to thank her for reaching out to the trans community before the bill's introduction and consulting with those who are at the heart of this debate.

Yet, I cannot help but be disappointed to be still standing here today more than five years after I introduced my private member's bill, Bill C-279. I know many of us continue to feel frustrated at the delays in seeing this bill become law. It is an important bill in that it would fill the largest remaining gap in Canadian human rights legislation.

Over the past five years, I have had the privilege of having my name associated with the legislation, but I want to make it clear that the progress that has been made is a result not of my efforts but of those from the trans community who have stepped forward to demand that they be treated with the same dignity and respect as all other Canadians.

Over the past five years, I have learned much, and it does bear restating that gay men have not always been the best friends of our trans brothers and sisters. I learned a great deal from a first nation sister, a trans woman who travelled a very rocky road but is now a successful small business owner in Vancouver. I learned much from a trans man who became a distinguished therapist now working with others facing transition issues. I learned from a trans woman who had to rebuild her career as a concert pianist after transitioning. I learned from a friend who now holds the first chair in transgender studies at UVic, home of the world's only transgender archives and the first transgender studies program. I learned a great deal from my friend and political ally who is a tireless community activist in Toronto. I learned from many others, including students, consultants, office workers, factory workers, sex workers, and street kids.

While this proposed legislation has been languishing before the federal Parliament, some progress has still been made. While I would like to think the debate here provokes that progress elsewhere, it is clear that we have lost the chance in this Parliament to be a leader on the question of equal rights. In the meantime, seven provinces have adopted corresponding provincial human rights legislation: Ontario, Manitoba, and Nova Scotia in 2012; Newfoundland and P.E.I. in 2013; Saskatchewan in 2014; and B.C. and Quebec, this year, 2016.

The issue of trans rights is not a partisan issue, thank goodness. Amendments to protection against discrimination on the basis of gender identity were proposed by NDP governments in Manitoba and Nova Scotia, a Liberal government in P.E.I., and Conservative governments in Saskatchewan and Newfoundland. Those amendments passed with all-party support in Ontario and British Columbia.

Nor are trans rights an issue restricted to the Canadian context. Now, more than 18 countries have explicit protections of the kind proposed in Bill C-16, and the list may surprise members. Argentina has been a world leader in the protection of the rights of transgender citizens, but the list also includes Uruguay, Bolivia, Spain, France, Ireland, Estonia, Croatia, Montenegro, Albania, Israel, Cypress, Nepal, Australia, and New Zealand, among others.

In the United States, 16 states, plus the District of Columbia, provide explicit protections for transgender residents, but unfortunately some states also specifically allow discrimination against the trans community, most recently with new legislation in North Carolina.

In Canada, some public institutions and private companies have chosen to act without waiting for legislation. The Canadian Labour Congress has produced guides for transition in the workplace for use by all of its affiliates to ease transitions in unionized workplaces. Others have also moved forward, including the big banks, like the Toronto-Dominion Bank and the Royal Bank.

I will now return to Parliament. The bill was first introduced by former NDP MP Bill Siksay in 2005, again in 2007, and again in 2009. In the spring of 2010, on his third attempt, Bill actually saw his bill pass by the House, only to see it die in the Senate when an election was called.

My bill, Bill C-279, was passed by the House in March 2013, and before the 2015 election, it had passed through all stages in the Senate, bar one.

Therefore, I urge the House today to deal with the legislation as quickly as possible. I am confident the bill will pass second reading for the third time today, and I am hopeful it will return to the House quickly for final approval.

This will be possible if the justice committee agrees that it is unlikely to learn new things about the bill in yet another set of hearings. Between 2013 and 2015, three separate sets of parliamentary hearings were held, with 17 witnesses appearing before the House justice committee, and 18 witnesses before two different Senate committees.

In fact, if we judge by previous experience, new hearings in the House and the other place would only risk providing a platform for trans phobia. This is especially true when it comes to the most significant red herring concerning transgender rights: the question of bathrooms and change rooms, which we heard raised here earlier today.

I am hesitant to even mention this issue, but it continues to surface, even after it has been shown to have no basis in fact. I frankly believe its persistence is a sign of the very trans phobia we are trying to address in this bill. We all know that in the real world, the only ones at risk in bathrooms are trans people, who are almost always perceived to be in the wrong place.

We need to pass Bill C-16 as expeditiously as possible if we are to avoid allowing opponents of the bill to use media sensationalism to promote hatred against the trans community for their own political purposes. We have only to look south of the border to states like North Carolina to be reminded that this risk is very real.

The time to add gender identity and gender expression to the Canadian Human Rights Code and the Criminal Code is long past due.

While some have argued on technical grounds that the bill is unnecessary, we have heard clearly from the Canadian Human Rights Commission and the Canadian Human Rights Tribunal that it is needed, both to fill technical gaps and also for the purpose of denunciation. Passing Bill C-16 will say clearly that discrimination and violence against the trans community is not a part of our Canadian values.

In reality, of course, the proof that the legislation is needed is the ongoing discrimination suffered by transgender and gender-variant Canadians. We do not have comprehensive statistics on the trans community in Canada, partially precisely because of their exclusion from human rights legislation. However, the one study done some time ago in Ontario, which the minister referenced in her speech earlier this morning, demonstrates what we can all see if we choose to look.

Unemployment rates for trans Canadians are more than double the average and the poverty rate for trans Canadians is among the highest of any group, with just over half of the transgender community earning less than $15,000 per year, despite high levels of education. When it comes to marginalization and homelessness, again good statistics are missing, but we know that among homeless youth, up to 40% identify as LGBTQ and many of those as gender variant.

When it comes to violence, we know the stories, even if, again, official statistics are not often collected. Police on the street will tell us who who are the most vulnerable to violence, and that is the trans community, and within the trans community, those who are also visible minorities or aboriginal.

In the United States, we know that so far this year 20 trans women have been murdered, 80% of them black. The Trans Day of Remembrance reports that worldwide 269 trans people have been murdered over the past year, including one death in Canada, that of a young Somali trans woman in Toronto.

The need to act is urgent. While most provinces have done so, there are significant areas of federal responsibility, whether that is in providing better protection against hate crimes; or addressing the dangerous federal corrections policy that places inmates in the wrong institutions and, thus, at great risk of violence; or ending discriminatory and humiliating Transport Canada screening processes; or making appropriate identity documents like passports easier to obtain. In fact, in most of these areas, there is no need for the federal government to wait for a bill to do the right thing. Nothing prevents government agencies from doing the right thing when it comes to trans rights, but we have seen these initiatives stall at the federal level. Passing this bill will ensure that stalling ends.

Over the past year, there could have been much more done to address the ongoing epidemic of hate crimes against trans Canadians and, in particular, against those most marginalized in our society, like aboriginal people and sex workers. Over the past year, there should have been more progress in changing discriminatory government policies.

Right now, some of the most innovative work is being done by school boards and at the community level. I want to recognize the work done by organizations like Gender Creative Kids in Montreal and the Montreal Children's Hospital's child development program, a gender-variance program, and the work of organizations like PFLAG.

Finally, I want to recognize the many courageous parents who are standing by their trans kids and fighting for the supports they need to succeed in this country.

Bill C-16 calls for us to act to provide the same rights and protections to transgender and gender-variant Canadians that the rest of us already enjoy, no more, no less. I am asking that we join together to do so expeditiously. P.E.I. passed its legislation in three weeks and British Columbia in a single day. There could never be a better time for the passage of inclusive legislation of which all Canadians can be proud, no better time than now.

As I asked in closing the debate in the House of Commons on Bill C-279, some three years ago, if not now, then when?

[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.

[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.

[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, 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.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, I would further commit to and underscore the importance of recognizing those among us who are more marginalized and more vulnerable, and to ensure that we do everything we can within our power to protect and provide for these people.

In the drafting and thinking about Bill C-16, we engaged with many stakeholders in the trans community and many organizations and individuals who have been marginalized, and sought their important feedback. If and when this legislation passes and becomes law, this conversation will continue, in terms of how we operationalize this in the most appropriate ways and how we, as a government and a country, need to ensure that we move forward in an appropriate way that recognizes the interests, the needs, and the concerns of these marginalized populations.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, we live in a country that has rights and freedoms. Fundamental to each individual Canadian is the right to be themselves and to be protected while being themselves.

In terms of any willful promotion of hatred that could potentially exist against trans individuals or people of different gender expressions, that is why we are introducing Bill C-16, as upheld by the Supreme Court of Canada in terms of its constitutionality. I recognize freedom of religion. It is important to respect those freedoms and the rights contained in our Constitution but to also ensure that everyone has the ability to feel safe, to be themselves, to express who they are, and to succeed as all Canadians do in this country.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, I would echo his comments in terms of equality and the importance of the legal framework as the basis upon which we live as Canadians. I feel that as Canadians, we are most confident when we know that we live in a caring and compassionate society under a legal and political framework that will protect us, regardless of our race, gender, gender expression, or faith. It is within that endeavour that we are introducing Bill C-16 to ensure that there is equality across the country, that people have the freedom to be themselves, that there are no barriers in the way of people achieving what they want to achieve if they work hard, and that the protections will be there for them.

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Madam Speaker, I acknowledge the work of current and past members in the House and without question would underscore and acknowledge the hard work of the trans population in this country in bringing us to this place.

Without question, I would support moving Bill C-16 forward as quickly as possible so that we can ensure that there is recognition and protection of gender identity and gender expression in the Canadian Human Rights Act.

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

moved that Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, be read the second time and referred to a committee.

Mr. Speaker, I am very proud that on May 17 we introduced Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code. The bill addresses a fundamental issue of equality and human rights, the discrimination and hate crimes experienced by trans and gender diverse Canadians.

At this time I would like to table, in both official languages, a potential charter impact statement for Bill C-16.

I would first like to acknowledge the efforts of colleagues in bringing this matter before previous Parliaments by the member for Esquimalt—Saanich—Sooke, the member for Vancouver Centre, and the former member for Burnaby—Douglas, Mr. Bill Siksay. Their hard work on this issue helped start an important national conversation on gender identity and expression. I thank them all for their leadership.

Canadians know that trans people make the same important contributions to Canadian society as everyone else, yet their life journeys are often more challenging, as they have to overcome misunderstandings, prejudice, and hostility because of their gender identity or expression. With the bill, we unequivocally say that Canada can do better. As the Prime Minister has said, Canada is stronger because of its diversity, not in spite of it.

Bill C-16 reflects our commitment to this diversity and provides for equality and freedom from discrimination and violence for all Canadians, regardless of their gender identity. With the bill, we say loudly and clearly that it is time to move beyond mere tolerance of trans people. It is time for their full acceptance and inclusion in Canadian society.

Bill C-16 would bring us closer to this goal by amending two statutes: the Canadian Human Rights Act and the Criminal Code. These two statutes play an essential role in affirming the basic equality rights of all Canadians and reducing their vulnerability to harm. It would improve legal protections for trans and gender diverse people by updating the laws against discrimination, hate propaganda, and hate crimes. It would promote inclusion and respect for trans people who have so often been relegated to the margins, struggling for full recognition and participation in our society.

Some of the words and concepts used in the discussion on Bill C-16 may not be familiar to all Canadians. For this reason, I would like to elaborate on some of the terminology being used. The term “gender identity” is a person's internal or individual experience of their gender. It is a deeply felt experience of being a man, a woman, or being somewhere along the gender spectrum. Gender identity is a profound matter of self-identity. It shapes one's self-understanding.

Conversely, “gender expression” is how a person publicly presents their gender. It is an external, or outward presentation of gender through aspects such as dress, hair, makeup, body language, or voice. Trans and gender diverse persons are among the most vulnerable members in society. As parliamentarians we have the opportunity to make their lives safer and freer. Bill C-16 presents an opportunity to ensure that our laws provide clear and explicit protection to those who need it the most.

I will begin by discussing the proposed amendments to the Canadian Human Rights Act. Parliament enacted this act in 1977 to promote equal opportunity in federal workplaces and in access to goods and services. The act says:

all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices

Canada has a long history of laws that recognize and seek to address harmful discrimination. Over the course of this history a theme has emerged, one of greater awareness of the barriers to opportunity that exist in our society.

When legislatures across this country came to understand the pervasive harm done by discrimination against women, they prohibited discrimination based on sex. Later, legislators expanded the laws again to legally protect persons with disabilities. Other prohibited grounds of discrimination are now common in human rights laws throughout the country, such as family status and sexual orientation.

Today, we are at a point in our history where we must act again. We must renew our commitment to equal opportunity and further extend legal protection to vulnerable Canadians who experience discrimination. In recent years, many legislatures in Canada have acted to protect the rights of trans and gender diverse persons. We can now see these legal protections are not just symbolically important; they are absolutely necessary. Significant Canadian surveys paint an alarming picture.

In 2009 and 2010, the Trans Pulse project studied the experiences of approximately 500 trans persons in Ontario. They reported significant employment barriers, including 13% having been fired and 18% having been refused employment because they were trans. Given these barriers, it is not surprising that trans persons are significantly underemployed, with a median income of $15,000 per year, despite generally high levels of education. In fact, 44% of trans persons in Ontario have a post-secondary degree.

Tragically, more than half of trans people in Ontario have symptoms consistent with clinical depression. A shocking 43% of trans adults in Ontario had a history of attempting suicide, including 10% having made an attempt within the past year. The difficulties faced by trans persons are significant and deserve our attention. The experiences of trans and gender diverse youth are especially troubling.

In 2011, Egale Canada conducted the first national climate survey on homophobia, biphobia, and transphobia in Canadian schools, collecting information from over 3,700 lesbian, gay, bisexual, and trans high school students. Results showed that 23% of trans students reported hearing teachers use negative gender-related or transphobic comments weekly and even daily. The study also indicated very high levels of verbal, physical, and sexual harassment. Specifically among trans students, 74% reported verbal harassment, 49% reported sexual harassment, and 37% reported physical harassment linked to being trans.

Not surprisingly, 52% of trans youth reported feeling unsafe in both change rooms and washrooms. This is completely unacceptable. Too many trans and gender diverse persons are being deprived the opportunity to contribute and flourish in our society. These figures reinforce the need for Bill C-16, through which we, as parliamentarians, can do our part to address this shocking reality.

It should go without saying that discrimination is a matter of public concern. When a person loses the opportunity to work or faces persistent discrimination, we all lose potential contributions to our society, to our workplaces, and the Canadian economy. Depriving individuals of freedom to make for themselves the lives that they are able and wish to have undermines their ability to participate in society.

By adding gender identity as a prohibited ground to the Canadian Human Rights Act, Bill C-16 aims to ensure that people of all gender identities are protected from discrimination. We have heard from trans and gender diverse persons that their gender expression is often the basis of the discrimination they face. Gender norms are reinforced by our society, yet they do not fit all of us. There is great diversity in how Canadians dress and speak, in their appearance, and their behaviour. No one should be disadvantaged solely because they do not conform to someone else's gender-based expectations.

It is also important to understand what these amendments would mean to the Canadian Human Rights Act. The act defines a number of discriminatory practices, such as refusing to hire or promote an employee, or refusing to serve a customer based on the prohibited grounds of discrimination. By adding “gender identity or expression” to the list of prohibited grounds, it will be clear that practices that discriminate on these grounds will not be permitted.

People suffering discrimination can make a complaint to the Canadian Human Rights Commission. The commission then investigates complaints and attempts to mediate between the parties to resolve the dispute. If the commission believes that a dispute should be given a hearing and an authoritative decision, it may refer the complaint to the Canadian Human Rights Tribunal. If the tribunal determines that discrimination has occurred, it may order a range of remedies, such as reinstatement in a job, an order that the discrimination cease, or monetary remedies.

The purpose of the act is to end and correct discriminatory practice. The Canadian Human Rights Act already provides some protections for trans persons. Tribunals and courts in several jurisdictions in Canada have found that discrimination against trans persons is a kind of discrimination based on sex, which is already a prohibited ground of discrimination. However, it is not enough to leave the law as it is. Canadians should have a clear and explicit statement of their rights and obligations. Equal rights for trans persons should not be hidden but be plain for all to see.

The legal clarity would provide two tangible benefits. First, people who are subject to discrimination on the basis of gender identity or expression would be able to make their case in precisely those terms. Making a formal claim of discrimination can be an intimidating process. Explicitly including gender expression or identity in the Canadian Human Rights Act would make it easier to interpret for those who have suffered this kind of discrimination, instead of forcing them to explain how the law on sex discrimination covers their situation. Second, these amendments would raise awareness of the protections and obligations under the act.

Bill C-16 does not define gender identity or expression. This is consistent with the majority of prohibited grounds under the act. There are good reasons to continue with this approach.

Many of the grounds, such as race and religion, cannot be captured in a single definition. There are more subtle and complex concepts that evolve over time and reflect the particular cases the act deals with. That does not mean that they are vague or obscure.

Gender identity and gender expression are increasingly common terms with enough subtle meaning to allow the commission and the tribunal to interpret them.Gender identity is now found in eight provincial and territorial human rights codes, and gender expression is found in five. In none of these are the terms defined by statute.

The Canadian Human Rights Commission is also able to provide detailed guidance on how to comply with the law. The commission has an important policy and education mandate, which includes interpreting the act and promoting compliance with it. The commission will continue to perform its role of assisting employers and service providers in understanding and complying with the law.

Next, I will turn to the amendments to the Criminal Code proposed in Bill C-16.

Trans people in Canada face a significant risk of violent crime. While official data from police services is scarce, 20% of respondents in the Trans Pulse survey had been physically or sexually assaulted, although many did not report these assaults to police.

A recent report by the National Aboriginal Health Organization indicated that aboriginal LGBTQ youth are twice as likely to face attacks as heterosexual youth.

The Criminal Code has specifically prohibited hate propaganda since 1970. There are criminal offences for advocating or promoting genocide against an identifiable group, for inciting hatred by communicating statements against an identifiable group in a public place that is likely to lead to a breach of the peace, or for willfully promoting hatred other than in private conversations against an identifiable group. They are found in section 318 and 319 of the Criminal Code. All three offences protect identifiable groups.

Until recently, this was defined by the Criminal Code as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation”. The list has been expanded over time to include national origin, age, sex, and mental and physical disability.

Bill C-16 proposes to amend the Criminal Code to add “gender identity or expression” to this list. As a result, the bill, if enacted, will extend protections to groups identifiable on the basis of gender identity or expression, which to date have been left out of the protections provided by hate propaganda offences. It will provide long overdue equal protection under the law.

Finally, the bill proposes to amend paragraph 718.2(a)(i) of the Criminal Code, which directs judges to consider as an aggravating factor in sentencing any evidence that an offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, religion, colour, sex, language, age, mental or physical disability, sexual orientation, or any other similar factor.

While the term “any other similar factor” is open-ended, the purpose of this protection is to denounce crimes motivated by hatred. By adding gender identity and expression to the list, we will send a clear message that there is no place in Canadian society for crimes committed out of bias, prejudice, or hate based on gender identity or expression.

In Canada we celebrate inclusion and diversity. All Canadians should feel safe to be themselves. When I introduced the bill back in May, Charlie Lowthian-Rickert, an amazing young activist who I am pleased to say is in the chamber today, was here and very publicly stood beside me, proud of its introduction. She stated in the press conference that she now feels safer because of the legislation that had been introduced. Charlie is not alone in feeling this way.

Bill C-16, an act to amend the Canadian Human Rights Act and the Criminal Code, is an important step. It reflects Canada's commitment to equality and freedom from discrimination and violence. It affirms the basic equality of all Canadians and provides explicit legal protection to one of the most vulnerable communities in our society.

It is time for Parliament to ensure that our laws provide clear and explicit protection for trans and gender diverse Canadians. I very much look forward to the dialogue, and I very much look forward to all members in the House supporting Bill C-16.

Business of the House

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons and Minister of Small Business and Tourism]

Mr. Speaker, I want to start off just by saying quickly that I know on these complex consular issues emotions can run high. I also know that by working together we can make progress on consular cases, and that I will continue to advocate for decorum and respect in the House. That is part of the conversation we have been having today.

Today we will continue the debate on the Standing Orders. Tomorrow, we will discuss Bill C-4, on unions, and Bill C-24, An Act to amend the Salaries Act.

Next week, we will all be working hard in our constituencies, and I wish everyone well and I wish them a happy Thanksgiving. Upon our return, we will have two opposition days, the first on Monday, October 17, and then on Thursday, October 20.

On Tuesday, we will commence second reading debate of Bill C-16, the gender identity legislation, and also report stage and third reading of Bill C-13, concerning the World Trade Organization, provided the bill is reported back to the House tomorrow.

Last, on Wednesday, we shall call Bills C-4 and C-24 with the hope we can dispose of the union bill that day and have it sent to the Senate.

Criminal Code

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I thank my colleague from Elgin—Middlesex—London. I know her predecessor. I am not sure what they put in the water in that riding, but I do notice that both she and her predecessor demonstrated respect for the institution and its members. I thank her for her tone and the arguments she presented.

The only real collaboration between the government and the opposition on this extremely important issue happened while the report to the government was being written. I was present at one of the meetings. It was an exceptional instance of collaboration among senators and MPs of all stripes. Unfortunately, the bill before us is very different from the recommendations in that report. That should be cause for concern.

The government is so focused on meeting the supposedly incontrovertible June 6 deadline, failing which, it says, there will be a disastrous legal void. I do not buy that, because the Supreme Court set up a legal framework within which we can operate, at least temporarily.

Can my colleague speak to the steps available to the government to truly work collaboratively on Bill C-16 and, as in Quebec, achieve the greatest consensus possible on the issue, knowing that unanimity is not possible in any case?