Thank you very much, Mr. Chair.
Good afternoon, everyone.
My name is Bennett Jensen, I use he/him pronouns and I'm the director of legal for Egale Canada.
Egale is Canada's leading 2SLGBTQI organization. Founded in 1986, Egale has been at the forefront of advancing and defending the rights of 2SLGBTQI people since that time.
Particularly in the early years of the charter, the Court Challenges Program was essential in Egale's ability to obtain legal recognition of queer people. I appear today on behalf of Egale in support of Bill C-316.
I will be addressing three brief points. The first is the role of the Court Challenges Program to date, the second is the particular vulnerability of 2SLGBTQI people and the third is the need for a robust challenge function in a healthy democracy.
On my first point, as members of this committee likely know, section 15 of the charter does not expressly list sexual orientation as a prohibited ground of discrimination. This protection was obtained through the courts. The courts reasoned that sexual orientation was analogous in nature to the immutable characteristics protected under section 15, such as race and religion.
This recognition was achieved through litigation. Specifically, the Court Challenges Program provided funding for Egale's interventions in landmark cases such as Rosenberg and Canada, Egan and Canada, and M. and H., which led to the recognition of same-sex relationships and specifically the conclusion that section 15 prohibited discrimination on the basis of sexual orientation, a finding that has enabled broader acceptance and dignity for queer people in Canada.
Currently at Egale, we are grateful to have received court challenges funding to pursue protection for the rights of another historically marginalized community: intersex people. Egale has initiated litigation challenging provisions of the Criminal Code that permit unnecessary surgeries to so-called normalize the appearance of intersex infants' genitals, in violation of their charter rights.
On my second point, the members of this committee will also appreciate that litigation is very expensive. For equity-denied groups, the very discrimination for which they require legal services is often a factor in their inability to afford those services, with 64.5% per cent of 2SLGBTQI people in Canada earning less than $40,000 a year. Discrimination in housing, employment and education contribute to higher poverty rates. Courts and human rights tribunals in this country have recognized that gender-diverse people in Canada in particular are in a unique position of disadvantage.
On my final point, in order for the charter to play its part in promoting equity and justice in Canada, those in minority communities must be able to access the courts to challenge the constitutionality of legislation passed by the majority. The Court Challenges Program is the vehicle that makes this more possible.
I note that this is a politically neutral position. The rights guaranteed by our charter apply to all.
When the legislative branch of the government fails to protect the charter rights of marginalized social groups, litigation is the avenue by which the government can be held accountable to its obligations. Without financial support for litigation, this avenue is closed to groups relying on charter claims to overcome systemic and systematic discrimination.
This is a crucial moment for gender-diverse people in particular. By “gender-diverse”, I mean two-spirit, trans, non-binary and gender-nonconforming people. As elected governments and major political parties take aim at the rights of gender-diverse people, particularly the rights of young people, it is essential that our communities are able to access the justice system.
As the Supreme Court of Canada recognized last year in Hansman and Neufeld, a core disadvantage facing gender-diverse people in Canada is the politicization and denial of legitimacy of trans identities and lives. This is precisely the kind of disadvantage that demands well-functioning checks and balances within our legal and political systems.
In conclusion, Egale strongly supports the strengthening of the Court Challenges Program through its entrenchment in legislation. This will help to counteract the financial difficulties faced by equity-denied communities, including ours, in asserting their charter rights before the courts and ensure that all of us benefit from the protections of our Constitution.
Thank you.
