Justice Committee on Nov. 20th, 2012

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

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

So I think you're agreeing with me, then, that the purpose of your bill—I don't want to put words in your mouth—is largely symbolic. You want to state it. You want to state that this class of individuals has protection, even though you're close to agreeing with me, if not agreeing with me, that they already have protection.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I'm still arguing that there is an ambiguity for most people in the public and for most people who are seeking legal protection, because they cannot find themselves listed but have to squeeze their case into another protection. And I still think that's true.

The Canadian Human Rights Tribunal and the Canadian Human Rights Commission will be here on Thursday as witnesses. When the review was done of that legislation by experts, it was recommended that the term “gender identity” be added to the legislation. So when it was reviewed, the recommendation was made, despite the case law—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'm going to need to ask them why on Thursday.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Okay.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I have a question for both Mr. Garrison and Sara Davis Buechner.

Mr. Garrison, I wonder if you could share with us the experiences of jurisdictions that have explicitly identified gender identity as a prohibited ground of discrimination—Ontario, Manitoba, the Northwest Territories. Have they reported an increase in accessibility to services for these individuals, on the one hand, or a decrease in criminal offences against them on the other?

My question somewhat follows that of Brent Rathgeber's, but it's not..... While recognition is important from the symbolic point of view, I'm talking about the consequential effects of having this type of inclusion in the law.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

In Manitoba and Ontario there has been less than a year's experience—just a few months' experience, in fact—so we don't have any reporting or time for this to have taken effect so as to give you that information.

In the Northwest Territories, we have had 10 years' experience, but I'm not aware that anyone has done a specific report looking at the situation. I know anecdotally of transgendered people who live in the Northwest Territories who feel that it has made a difference, but I'm not seeing any formal study.

[Irwin Cotler, Liberal, Mount Royal, QC]

Okay. Thank you.

To Ms. Buechner, one of the issues that were raised during debate at second reading was the problem that some transgendered Canadians have had in securing equal access to health care.

I'm raising this because, as you both have said, this is not seeking special rights; it's basically seeking the same rights—equal rights.

So my question is whether you yourself have experienced—and if you did, whether you'd be willing to share with us—problems with regard to equal access to health care and whether this bill would address that issue.

[Dr. Sara Davis Buechner]

In Canada, I myself have had no problems with that.

I think the best anecdote I can tell is a rather humourous one, of going to an emergency room in New York City and sitting down because I had a raging flu. The nurse asked me various questions about my age and weight and so forth. Then she asked me, “When was your last period?” I said to her, “Well, I haven't really had the first one yet.”

[Voices]

Oh, oh!

[Dr. Sara Davis Buechner]

That's a bit of.... I'll be here all week. Thank you. Don't forget to tip the server.

[Voices]

Oh, oh!

[Dr. Sara Davis Buechner]

But what's pertinent to the story particularly is going into a hospital emergency room, when one might be in great distress and maybe not in one's most communicative state, being able to say “I am a transgendered woman”, and having the nurses and doctors know, okay, that means A, B, C, D, E. You don't have to be a real expert on your own medical issues in order to tell the doctor what he or she should be prescribing for you. That is something that I think is of great concern to all transgendered people.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Chair, not all of the provinces provide equal access to medical services for the transition and for those who might require surgery. So there is a problem with equal access to those services in Canada.

The issue I have heard most often from transgendered people is on the question of identity documents and the difficult procedures that are often required for getting identity documents. Putting gender identity into the human rights code would give a basis for clarifying the rights to those identity documents and the right of access to them without some of the hurdles that are placed before transgendered people.

[Dr. Sara Davis Buechner]

I should add in a more serious vein that because I was rather butchered by a doctor in Bangkok, where I originally went for surgery, it was after I moved to Canada that I sought corrective surgery. There were no doctors who performed this kind of surgery anywhere west of Montreal. There's an excellent clinic in Montreal, where I went, but someone without the access to buy plane tickets and get there would not have access to this medical care.

[Irwin Cotler, Liberal, Mount Royal, QC]

Given your own experience, now that you're here before us as a witness today, are there any measures beyond this bill, beyond this particular piece of legislation, that you would recommend from your own understanding and experience that Parliament might consider in order to better safeguard the rights of transgendered Canadians?

[Dr. Sara Davis Buechner]

I've just been watching about an hour of Parliament, and I don't ever want to go in that room again.

[Voices]

Oh, oh!

[Dr. Sara Davis Buechner]

No, I'm going to let my colleague speak to that. I wouldn't put myself in the position to say what the Canadian Parliament should do.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you very much for being here today, both of you.

This is probably more for you, Mr. Garrison. During debate of this bill and its predecessors, you will recall that concerns were raised regarding the term “gender expression” and the fact that it was undefined and therefore, for some, potentially vague, and could be widely interpreted.

I really have two questions in one. Do you think adding the term “gender expression” as a prohibited ground in the Canadian human rights code and in the Criminal Code could create vagueness and legal uncertainty? Conversely, do you think the removal of that term would assist the broader public in understanding the intent of this bill?

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I would say that within the transgender community, as Sara pointed out, there's a great variety and a great flowering of different approaches to gender, particularly among young people. I find that when talking to people in the transgender community, the concern for the inclusion of the term “gender expression” is sometimes age-related. Younger people feel that “gender variant”, which is a term they like to use, not conforming to either stereotype, is something important to be protected.

But in my discussions with members, I do acknowledge that this is not as clear a legal concept in Canadian jurisprudence, and it's not as clearly understood by the public. That's why I have said that I think we will still make the basic progress we need without including the term gender expression. That's why the amendments to remove it from the two sections will come forward on Thursday.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I recall that you stood in the House and indicated that you were willing to look at removal of “gender expression” as an amendment and also a definition of “gender identity”. Are we to take it that those will be the substance of the amendments you're going to propose?

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Yes, they will. I had the same experience in talking to members of Parliament who had concerns. I don't believe it detracts from the bill to add a clear and simple definition for “gender identity” and one that is consistent with Canadian law and international law.

That's what you'll see coming in the amendment—a very simple, very clear definition, very consistent with the existing jurisprudence. I don't believe it detracts from the bill, and if it helps others be more comfortable with it, I think that's a good thing.