Justice Committee on Nov. 20th, 2012

[The Chair, Conservative, Dave MacKenzie]

Seeing that the time is 3:30, we will begin the meeting.

This is meeting 51 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Wednesday, June 6, 2012, we are studying Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

Just so that everybody understands, we have had a switch in the witnesses. We will have Hershel Russell and Sara Davis on the two panels. I had the clerk add committee business to the bottom of the agenda. We will move that over until Thursday.

The proposer of the bill is here today.

If you have an opening address, please go ahead with it.

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

Thank you very much, Mr. Chair, and thanks to the committee.

I'm very pleased to be here today to launch the discussion on Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

I'm very happy that two of the witnesses we'll have today—Sara Davis Buechner and Hershel Russell—are transgendered Canadians, and you will be able to hear testimony from them based on their lived experience and not on what others such as I have to say about it. I'm disappointed that the vagaries of committee workload and scheduling did not allow time for all those who wanted to do so to appear before the committee.

I am very happy today, because it's an important day symbolically for these committee sessions to begin. Today is the Trans Day of Remembrance, and as you may have recognized, in the House I made a statement today calling attention to the fact that around the world over the last year, 265 trans people were murdered. In some countries, such as Brazil and Mexico, the murder of trans people has reached epidemic proportions. In the last year, 126 trans people were killed in Brazil and 48 in Mexico.

Extreme violence against trans people unfortunately also occurs in countries with otherwise progressive reputations, including Argentina and Canada. The list of those murdered last year includes Perla Maron, a 52-year-old transgendered police officer in San Juan, Argentina; and January Marie Lapuz, a young South Asian transgendered woman, very active in the LGBT community in British Columbia, including through conducting anti-homophobia workshops in the schools. So Canada is not immune to the violence that is often directed at transgendered people.

As you know, Bill C-279 would do two things. It would amend the Canadian Human Rights Act to include gender identity—and, as it was originally drafted, gender expression—as prohibited grounds for discrimination. It would also amend the Criminal Code to include these two factors as distinguishing characteristics protected under section 318 as aggravating circumstances to be taken into consideration at the time of sentencing. It's a fairly simple bill in the changes that it proposes to make.

Several people have asked me about whether this is revolutionary or evolutionary change. The way I have always viewed this question is that we have a gap in our human rights legislation whereby transgendered Canadians do not enjoy the same protection of their rights as other Canadians. By explicitly adding these to the Canadian Human Rights Act and the hate crimes section of the Criminal Code, we fill that gap, so that when people need to use the legal system to protect their rights, they don't have to argue that their situation is similar to someone else's in order to receive that protection.

It also does another important thing. I think it makes a statement, if we pass this, from the House of Commons saying that, as is the case with other forms of discrimination, Canada does not tolerate discrimination against transgendered Canadians.

I want to take this opportunity to reiterate that the rights and protections that transgendered, transsexual, and gender-variant people are asking for are not special rights. They are simply the same human rights as those enshrined in the Canadian Human Rights Act for all other Canadians. These rights and protections are needed to ensure that trans Canadians can live out their lives as anyone else would do and with the full sense of safety that other Canadians have.

These same types of protections are being implemented in other places in Canada and around the world. Probably the first that I know of in Canada was in 2002 in the Northwest Territories, where these protections were entrenched in the human rights act and so have been in place for more than 10 years. The City of Vancouver has a harassment-free workplace policy that includes gender identity and gender expression. The City of Ottawa and the City of Toronto have similar polices, which protect people from discrimination based on gender identity and gender expression. More recently, both Ontario and Manitoba have amended their human rights codes to add this protection explicitly, and just this morning legislation to amend the Nova Scotia human rights code was introduced in the legislature of Nova Scotia to add gender identity and gender expression to the Nova Scotia human rights code.

These are rights and protections that the Canadian Human Rights Act review panel recommended in its review of the Canadian Human Rights Act. So for those who say, “Why is this necessary, aren't things already covered?”, when the experts reviewed the human rights act, they felt it was necessary to fill this gap by adding these protections specifically to the Canadian Human Rights Act.

A final point I'll make in terms of legal obligations and documents is that Canada is a signatory to the UN Statement on Human Rights, Sexual Orientation and Gender Identity. That declaration recognizes the need for explicit protections for transgendered people all around the world.

The UN High Commission report recommends that a whole number of actions be taken by member states. I won't run through all of those, but two things are important out of that list. One is that there be comprehensive anti-discrimination legislation that includes discrimination on the grounds of sexual orientation and gender identity. The other is that governments who are signatories facilitate legal recognition of the preferred gender of transgendered persons and establish simple arrangements to permit relevant identity documents to be reissued reflecting that gender and name, in order not to infringe the rights of transgendered individuals.

Let me turn to what I have heard from MPs who have concerns about my bill. I had a number of discussions before second reading with people in all parties. The concerns fell roughly into three categories.

The first was that these protections are not needed. I want to deal with that in the general sense of the way transgendered Canadians experience their lives on a daily basis. It is clear that there is a great deal of discrimination against trans individuals. They are more likely to be victims of hate crimes. Those hate crimes are twice as likely to be violent hate crimes as those directed against other groups.

The second argument I heard from others was that these rights are already protected. I addressed that briefly in reference to the Canadian Human Rights Act review panel, which said they were not. Other minority groups have protections that are listed specifically in the Canadian Human Rights Act; therefore, they have visibility as identifiable groups to the public. When you go through that list of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, or conviction for an offence for which a pardon has been granted, it makes a declaration to Canadians about the protections that are afforded to these groups. Transgendered people are clearly missing from this list.

I should take a moment to clarify that sexual orientation is not a blanket term that offers protection to transgendered people. In fact many, some would argue most, transgendered people do not identify on the basis of sexual orientation. When specifically asked, somewhere between 30% to 40% of trans individuals identify themselves as straight, when given the choice; they do not see themselves as gay, but simply as people who were born in a body that does not match their gender identity.

The third objection or concern that was raised was that the bill as drafted was too broad and lacked definition and that it was thus difficult for people to know what was included in the bill. We will be discussing amendments in detail on Thursday to deal with these concerns. I have asked that they be forwarded to the committee. I believe you will be receiving them today through Madame Boivin's office, as I am not a member of the committee. On the basis of promising to have a discussion of those amendments, I received sufficient support for the bill at second reading to get the bill here today.

The simplest amendment will be to remove the term “gender expression”. That answers the concerns of many, in particular on the Conservative side, who said that while gender identity is easier to define, gender expression is a more difficult term to define and for many in the public to understand.

A second amendment will deal with adding a definition of gender identity. We will deal with that very specific proposal on Thursday.

The third has to do with French-language use of terms. As the bill was drafted by the House of Commons drafters, we use the term identité sexuelle. We have heard very strongly from the transgendered community, and also from the legal community in Montreal, that internationally and in Quebec the use has shifted to identité de genre, and that there is a different scope of those two terms in French. Now the preferred term is identité de genre.

It's important to note that gender identity is something that everyone has, not just gay or transgendered people, so it's a broad protection that we're adding here. The difference for transgendered people is that they have a gender identity that is not congruent with their physiological anatomy at birth and that a great deal of discrimination and violence results from that mismatch, because of other people's attitudes. So what we're trying to do here, as well as provide the legal protection, is to change attitudes, to accept that transgendered Canadians are fully part of the community and have every right to be.

In the interests of time I'm going to skip through some of the things I was going to say and maybe just go to some concluding remarks, because I would rather have the committee hear from the transgendered individuals.

I would in conclusion reiterate that, in my view, the rights we're talking about here are basic human rights, not special human rights, and that all we're asking here is to fill a gap. We're not trying to cause a revolution in Canadian human rights law, but simply to fix something that is missing.

I would say that while working on this bill I've learned a great deal myself about the life experience of transgendered people. You will find them everywhere in our society, as you would expect. They are our brothers, our sisters, our children, our parents, our friends, our colleagues, and our neighbours, and they deserve the same rights and protections as all other Canadians.

I look forward to answering any questions you may have. I'll conclude there. Thank you very much.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Garrison.

Ordinarily, as the sponsor of the bill, you would be the only one at the table, but you have requested to have another witness with you.

If Sara wishes to make an opening address, we will accept that.

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

Thank you.

[Dr. Sara Davis Buechner, Professor of Music, University of British Columbia, As an Individual]

Thank you, ladies and gentlemen. I am quite honoured and humbled to speak to you today. I thank you all for your time and your kind consideration.

My name is Sara Davis Buechner. I am a classical concert pianist. Since 2003 I have been a professor of music at the University of British Columbia in Vancouver. I travel a lot, especially around North America and Asia, performing concerts when I am not in Vancouver teaching a class of about 15 aspiring pianists of world-class calibre.

After graduating from the Juilliard School in 1984, I gave a very successful debut in New York. In 1986 I was the top American prize winner of the international Tchaikovsky competition in Moscow. I received a lovely letter from President Ronald Reagan at that time. Some years later, I also played at the White House for President and Mrs. Clinton. I have a very nice photo of the two of them congratulating me on that.

At the age of 37, after a lifetime of questioning and fear, I was diagnosed with gender dysphoria, and I transitioned to my correct gender, which is female. My pianistic skills did not change one bit, but suddenly my concert schedule went from about 50 appearances per year to two or three, and the conservatory in New York where I was a popular teacher decided my skills were no longer needed.

With limited means of supporting myself, I took a job teaching small children at an upstate private school for about $600 a month. I counted myself lucky, as most of the transgender friends I knew were completely unemployed. Some of them were homeless.

I learned to endure frequent verbal and occasional physical harassment as part of the price of that integrity, even in a city of such a cosmopolitan nature. One evening I was the victim of an attempted date rape at the hands of a man who assumed, since I was transgendered, I must be a sex worker. I didn't bother to report that to the police, because I didn't want to be harassed by them either. I believe they would have assumed I was a trannie sex worker and deserved everything I got.

In an effort to find meaningful employment, I applied to about 30 American colleges and universities with music openings. I received no answer from most of them, and rejections from the others. One professor from Rutgers university asked a colleague of mine if it was safe to leave me alone in a room with undergraduates.

But when I was called for an interview for the open piano position at UBC in Vancouver, I was pleasingly astonished to find that their music department was interested about two things only: one, my musical ability; and two, my teaching ability.

When I did get the job in a competitive audition, I was overcome by emotion on two levels. One, I would be able to pay my bills for the first time in many years. And two, I realized that Canada was far ahead in terms of its understanding and support of basic human rights.

I've lived in Vancouver since 2003 with my Japanese spouse, Kyoko, whom I could not legally marry in the United States. We are reminded of our second-tier status there every time we travel, because when we cross the border, the American agents force us to stand in separate lines for processing. They say we are not married.

Bill C-279 assures protection for people like me, with gender identity or gender expression needs. These needs are not wilful, they are not chosen, they are not ignorable. For trans folks and cisgendered folks, these are matters of life and death—of living openly, honestly, and freely without fear of extra prejudice, malice, or worse, violence. We do not need extra rights and we do not ask for them. We need the same rights as our Canadian brothers and sisters of all races, creeds, denominations, and identity.

In the past, I have lived in a country where those rights are not protected, where I was turned down for housing with no explanation whatsoever and no legal means of recourse; where I was fired from a job with no possibility of compensation; where I was called names on the street and scared to ride buses and subways; where I was laughed at by American government officials when I applied for a name change.

As a child of eight years old, my favourite composer was Mozart. When I was that age, my grandmother, an accomplished seamstress, made for me my very own purple Mozart coat with a frilly blouse. I was very proud of that coat and blouse, and it felt natural to me when I wore it, which I did to elementary school one day, where I was beaten savagely by my male classmates. The coat was ripped, there was blood on the blouse, and my glasses were broken right in the middle as well.

The teachers did nothing to protect me or my fledgling gender expression. My parents, however, were sent a note from the school principal advising them that their son was never to wear girls clothing to school ever again.

I know that some of you harbour legitimate concerns, or I think you feel righteous concerns, about transgender people in public bathrooms, fearful of cross-dressed attackers in the stalls. To my own knowledge, this has actually never happened anywhere in North America. However, you can see on YouTube many examples of stomach-churning violence against transgender people, being beaten in those bathrooms by bigots who don't like the way they look.

During the five years I lived as a woman, before being able to afford surgery—because of American health insurance not covering it—I was one of those people who risked a beating every time I went to relieve my bladder. If I had walked into a men's room, I would at best have been redirected, or at worst seriously injured. Trans folk go to the washroom to relieve their bladders behind closed doors in privacy, just like anyone else.

In terms of gender appearance and expression, I can talk for a long time about friends of mine who are intergendered, bigendered, people of one gender, who nevertheless look and sound like they are another. There's a wide, wide spectrum.

My dear friend Hsia-Jung, who had her breasts removed from cancer, cries every time she gets called “sir”. I have a female friend, Sheila, whose voice is two octaves lower than mine. I get called “sir” on the telephone. It's not a big deal. I'm happy to explain my own story to help people understand who trans people are. We are just, as they say in music, the variations on the theme—the human theme.

I will let other more statistically and politically informed witnesses here speak to the numbers of trans people who experience harassment, discrimination, violence, or death, either as murder or at their own hands. Suicide is a very, very common experience for trans people. There's a desperation when you don't know, don't have the facts, and don't understand. I know it all firsthand.

In my own uneducated fear as a young adult, how many times did I overdose and try to die because I did not understand why I felt as I did or know what to do about it? Thankfully, I found people who assisted me. Now I thank God every day of my life that I have lived 15 years, since becoming female, in internal peace, happy to be real to myself and real to the world.

I am fortunate to be married to a wonderful spouse; fortunate to see my brother's two young daughters grow up—they love their Aunt Sara and I love them; fortunate to be alive and to help my aging parents; fortunate to be teaching wonderful Canadian students; fortunate to be playing the piano again, talking to audiences frequently and playing the piano for them in Vancouver, Victoria, Winnipeg, Kelowna, Red Deer, Edmonton, Montreal, Timmins, Toronto, Guelph, etc.; and fortunate to be living in the most progressive, humane, and beautiful country that I know, Canada.

I am beyond grateful to be able to make my home here with dignity and integrity. I'm confident, too, that my fellow Canadians will see the importance and necessity of passing Bill C-279 to help all of us live in safety and equality.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Côté.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Thank you very much, Mr. Chair.

Thank you, Mr. Garrison. Thank you for being here, Ms. Davis Buechner.

Furthermore, I'd like to take this opportunity to tell you that your presentation... Is everything all right?

[Dr. Sara Davis Buechner]

Just a moment please. I wish I could speak French fluently.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Can you hear the English interpretation now?

[Dr. Sara Davis Buechner]

Yes, thank you. Pardon me.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Not a problem.

Ms. Davis Buechner, you spoke about cruelty and various incidents. Unfortunately, I've heard these stories all too often from friends and people I know, whether they be homosexual, transgender or transsexual.

You know, I've been an advocate within the NDP for eight years out of thirst for justice. It was first and foremost a thirst for economic justice. However, the traditional heterosexual, white man who was more entitled to some opportunities than others, and that's not necessarily a positive thing, was quickly confronted with these injustices that certain people were unfortunately experiencing.

In the context of my advocacy activities, I was able to meet a very active group of bright activists who had experienced poverty and violence. So I'm not surprised by what you told us. I think it's very important and very courageous on your part.

I've come to a conclusion. This is not about a choice, but rather about a way of being. Guided by this idea, it is up to our society and our legal system to reflect this reality.

Of course, my colleague Randall's bill will not immediately resolve all of these unfortunate cases. However, we are finally bridging a gap. Could you tell the committee how you feel about the amendments to these sections of the Criminal Code and the Canadian Human Rights Act? Do they give you hope?

[Dr. Sara Davis Buechner]

It's impossible for me to speak to the specifics of everything that they would do, but I think that, in terms of my own experience of the past, to be able to procure legal representation and to have such rights guaranteed in the Constitution, in the Human Rights Act, means that there is some sort of legal recourse if one experiences harassment and discrimination problems, particularly in the hospital from doctors or nurses who do not understand transgender issues.

If one is indeed harassed on the street, hearing “Hey, buddy, you look like a girl”, these kinds of statements and harassment issues are very specific to the trans community, being that people decide there's one way to look at a person's gender, and anything outside of that is not okay. Such experiences are really not about whether one is gay, or straight, or bi, but really very much about the outward appearance.

It seems to me that it would be a great, great advantage...or not just “advantage”. That's the wrong word. I think really it is definitely a right to have the same rights as anyone else in protecting one's ability to earn a living, receive health care, make a family, and so on, just the daily things that most people really do take for granted, particularly for trans people in terms of daily safety and going about their business in their lives.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

You spoke about a crime that you were a victim of. You decided to not file a complaint because you did not think that you would get support from the police. One could also be talking about assistance from a lawyer or from the health system. One could almost draw the conclusion that without this bill, you are a second class citizen because you do not necessarily benefit from the protection and assistance of, for example, police or medical services unless those individuals are already open-minded.

[Dr. Sara Davis Buechner]

Yes, this is absolutely true. In fact, I cited specific instances. When I was asked to leave a job, I consulted a lawyer—a rather high-priced one, I might add—who advised me simply to quit, that it would not be worth my time and money to fight the case, and that it would make me look bad. It would be a better course of action to simply quit and look for employment elsewhere.

In terms of the other experience, yes; when you live in New York City, you realize that sometimes the police are.... Well, they're a little bit different than you are, and they have their experiences.

So no, I did not feel that I would be taken very seriously, particularly as I'd had the other experience of going to change my name legally, a perfectly basic right that every American citizen has, and having three people actually point at me and laugh. I didn't really trust many government agencies at that time.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Rathgeber, go ahead, please.

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

Thank you, Mr. Chair.

Mr. Garrison, as you probably know, I was one of the individuals who voted against your bill at second reading. I had some of the concerns you outlined at the beginning, and still do, although I eagerly await your amendments in hope that they might alleviate some of my concerns.

Let's talk about those. With respect to the whole issue of redundancy, if I can call it that, you are no doubt aware that gender identity disorder is a formal diagnosis used by psychologists and physicians to describe persons who experience significant gender dysphoria. It appears to me that if an individual is suffering from gender identity disorder—perhaps suffering is the wrong word—but if they are experiencing gender identity disorder, they are subject to the disability provisions of the Canadian Human Rights Act. Would you agree with that?

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

I guess I would back up a step and say that, again, speaking a bit for transgendered people, most do not feel that they have a medical disability. They do not feel there's anything wrong with them. So the very listing of gender dysphoria as a medical disorder is very controversial in the transgendered community. It has some perverse advantages, I would say, in the Canadian medical system in that sometimes, in some provinces, it qualifies people for medical assistance with surgery.

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

I would suggest to you that another one of those perverse advantages—to use your verbiage, not mine—is that it affords one human rights protection.

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

I am not a human rights lawyer, although I have some background in working with international human rights. What I have been told is that for people to launch a case, such as you're suggesting, they have to spend the first part of their time in court establishing that their problem is like a disability or that it fits under a disability, whereas, if protection were listed in the Canadian Human Rights Act, they wouldn’t have to go through that stage of demonstrating that it's like some other protected right—it would be more direct.

I still think that the more important aspect is the declarative aspect, so that there's no confusion in Canada about whether something is or is not protected. If it's listed, it is protected.

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

Okay. So you know that in 2009 the Canadian Human Rights Tribunal said, in Montreuil v. Canadian Forces, that there's no longer any doubt that discrimination based on transsexualism is discrimination based on sex or gender, as well as discrimination based on disability.

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

Yes, I'm aware of that.

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

Right. And that in Kavanagh v. the Correctional Services of Canada, the same tribunal states that discrimination on the basis of transsexualism constitutes sex discrimination as well as disability discrimination.

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

I'm aware of that.

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

And that your own court, the B.C. Court of Appeal, affirmed in Vancouver Rape Relief Society v. Nixon, that although they found that there was no discrimination, they agreed with the tribunal that there was discrimination on the basis of sex when an individual claimed that they were discriminated against because they weren't able to work at a rape crisis centre.

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

But in all those cases, my understanding is that first you had to make the arguments that the situation of the person was “like” the protected grounds. So it makes a two-step legal process out of it.

Again, I would still say it's the—