Evidence of meeting #51 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was trans.
A recording is available from Parliament.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
You mentioned international law. Is there somewhere members could look for some international law definitions?
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
The basic international law compendium was included in what's called the Yogyakarta principles, where international jurists got together in Indonesia and tried to clarify international law by in a sense codifying it, although it's not been adopted by any legislature. The Yogyakarta principles are easily available online, if someone wants to have a look at that.
The definition used there is for gender identity. It uses the word “including” and adds many other things to it, but the definition I'll be proposing to you is the first part of that definition and the part that is consistent with Canadian jurisprudence, I believe.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
In other words, I gather what you're saying is that this is a good reference, but the definition you'll be putting forward is one that is—
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Condensed: yes. I was thinking of a tighter definition, a more “succinct” definition, I suppose one would say.
It looks like we're going to be able to take a look at that soon.
That's it. Thank you.
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you, Mr. Chair.
Thank you both for your testimony.
In particular, Professor Buechner, thank you so much for coming and sharing with us a very acute analysis of the issues tied into your own experience.
I wanted to ask you about the whole question of symbolic or declarative value. Even if we assumed that one way or the other, human rights commissions or courts, because of their own pushing the boundaries in seeking a more equal society, might find ways to interpret existing discrimination in order to, as much as they can, help folks who are suffering discrimination on the basis of being transgendered.
My own experience as a gay man is that adding the words “sexual orientation” to human rights documents does what Mr. Garrison says: it just cuts through the noise and makes it very clear that on the basis of a particular difference that can be used for discriminatory purposes, I'm as human as anybody else.
I personally have never had to use this in a legal context, yet I know others have. At the same time, its presence has great symbolic value for me.
I'm just wondering if that resonates at all with you.
Professor of Music, University of British Columbia, As an Individual
Oh, greatly, I think, simply because I think it's a very fundamental human need to belong. We all want to know where we belong, with whom, and who our peers are.
Certainly when I was an adolescent I knew I had gender issues and questions, but when I first went to college and I met gay men and lesbians, I wasn't them, either. Something was wrong here. I didn't feel straight. I didn't feel gay. Where did I belong? I needed information badly, and it wasn't really there to be had.
Similarly, I would say that when I was able to emigrate to Canada and have a marriage be recognized, I felt I was in a home that understood me as a person and valued that commitment that I made.
I think there is incredible importance to adding gender identity to the human code, simply because here we are, and this is how we define ourselves to the best of our abilities. I'm a member of one of the smaller minority groups around, for sure. Yes, that symbolic value is very important, but the real value of it is even more important.
NDP
Craig Scott NDP Toronto—Danforth, ON
Thank you.
While I'm on this—it's a similar thing—I'd like to thank you for a turn of phrase that I scrambled to scribble down, even as my colleague Ms. Boivin did. You said that trans people are “just variations on the theme—the human theme”. I thought that was very important for us to think about, because I think of this bill as being essentially about recognition of humanity through recognition of difference, distinct identity, as part of how we understand equality. Your presentation here today I hope has reached a lot of us, to make us understand that even more.
We received a letter from an organization called Gender Mosaic, based in Ottawa. They have been around for about 25 years as a transgender social and support group—
NDP
Craig Scott NDP Toronto—Danforth, ON
Oh, they are here. Fantastic.
I'm not sure if they'll have a chance to testify, so I want to simply ask about something that appears here in their brief:
Both gender identity and gender expression work hand in hand....And it is gender expression...that is usually the cause of discrimination, violence or ridicule in our community....it is the expression of gender that may cause a landlord to refuse accommodation. The fact is that it is usually the expression of gender that can trigger acts of discrimination, ridicule or violence.
I'm wondering if you would take a few moments to comment on that interlinkage.
Professor of Music, University of British Columbia, As an Individual
Well, without question, it was when I was transitioning that I would be accosted on the street by people, or things said to me constantly on the New York subways—over and above the way that people talk to you on the New York subway anyway—with various opinions about how I looked or what I really was.
Even, I have to say, to this day, when I get into a taxi, especially when I'm tired, and say “Take me down to UBC”, I'll hear, “Sure, sir”, as if they've really figured me out. I get “figured out” from time to time, but you know, I don't need figuring out. I'm just who I am.
Two things that come to mind in response to your statement, though, are from doctors—very prominent doctors whom I was fortunate to be able to see. I went to a quite famous endocrinologist in New York when I was transitioning. To that man, there was no question that there were lots of medical issues involving transgendered people that were not really even fully understood and still needed plenty of research.
Another moment of hilarity came from my therapist, who had a heavy Austrian accent, telling me at one of my first sessions, “Well, you know, this gender—we think there are about 17 of them. However, we've only got two boxes. You want the M or the F?”
Professor of Music, University of British Columbia, As an Individual
It's a humorous story, but it certainly tells of one of the perils that we face as transgendered people. We're made up of so many things. We're born in the way that we're born, and yet society is the part that gives us the sheet of paper and says, okay, here's your box. Well, what if that box doesn't feel right?
I have one tale of experience; we have another witness who has a different tale of experience. But so many trans people I've met—male to female, female to male, inter-gendered, as I said.... I've known people who could pass for whatever gender they wanted, depending on what they were going to wear that day.
The human condition is a wide one, and what you say about the expression is really, to me, at the heart of it. I don't want people harassing me for how I look or who they think I am, or “figuring me out”, or figuring anybody out, and then feeling that this is okay because you don't fit into those two boxes.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Thank you, Mr. Chair.
I would like to thank both witnesses for appearing here today.
I know from my previous private member's bill that certainly it is a lengthy process, so I commend Mr. Garrison for his work. It's never easy to put together a bill and then to go through the whole process. I know that for a fact.
Because some of the questions regarding human rights commissions and tribunals have already been asked, I'm going to take the same approach as Mr. Cotler and not approach it from a symbolic basis but more on the consequential aspects of it.
Subparagraph 718.2(a)(i) of the Criminal Code currently contains a list of numerous aggravating factors to be considered when a crime is motivated by hate, bias, or prejudice based on “race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor”.
Do you think this section, which currently contains a non-exhaustive list of factors, can be interpreted to include crimes motivated by hate, bias, or prejudice based on gender identity?
It is my understanding that the gender expression aspect will be amended down the road; is that not correct?
So if we could focus, then, on gender identity, I'd appreciate it.
In other words, is this amendment to subparagraph 718.2(a)(i) necessary?
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
I guess it's the same argument that was made earlier, in that there is a value in the Criminal Code's establishing standards of behaviour and telling people what behaviour we do and do not accept in Canada. By listing gender identity in that list, we are making a declaration, just as we made for the other groups.
Now, I understand that there are some people who don't like the hate crime section of the Criminal Code, and that's a debate for a different day. But if we are going to list groups, then I believe that gender identity is equally worthy of listing as any of the other groups that are already listed. You could make the same arguments, in essence, about several of the other things in the list: “Oh, we don't really need them there, because they'll be included.”
My argument is simply that equality for transgendered Canadians means listing and declaring in the same way we have for other factors in that list.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Again, in the criminal law context, could you provide examples of offences that have been committed in relation to gender identity?
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
Well, I started today by talking about the murder of a transgendered woman in New Westminster, British Columbia, who was very active in the community in promotion of equality for transgendered people. She was from the South Asian community and actively conducted workshops in public schools so that people could come to know a transgendered person and understand her life situation as she spoke from her experience.
While that was a murder case and a more extreme case, there's obviously no “aggravating” factor—in murder, we're at the top—but there are many other legal cases in which the motivating factor appears to have been hatred against transgendered people. I didn't bring specific examples with me today to discuss, but it's certainly not difficult to find them.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Do you think the offences would have been prevented had this bill been in place?
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
Does the Criminal Code prevent crime? That's a large topic that we could talk about.
I think, yes, it does help for us to say in our Criminal Code what behaviour we think is unacceptable. It does, in general, help people adhere to a standard of behaviour that we find acceptable in our society. I don't think this is any different from any of the other things that we list in the Criminal Code.
Conservative
Dan Albas Conservative Okanagan—Coquihalla, BC
Were prosecutors unable to proceed, or courts unable to convict, because the grounds were not listed? And also, in your opinion, would the impact of this bill be at the sentencing stage?
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
Again, not being an expert in criminal law.... I'm not a criminal lawyer, but having worked in the field of criminal justice for a long time and having talked with prosecutors about this, the problem is that often, as was the case with Ms. Buechner, people are reluctant to even file the original complaint because they feel they will not get equal treatment under the law.
One of the things that would help...and that did help when we listed other things, was that by saying that gender identity is included here, it will encourage people to report those crimes, and will encourage people to expect and be able to demand equal treatment under the law.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Chairman.
Thank you to both witnesses for coming today.
Mr. Garrison, I'd like to thank you for the work you have done in this area. Like any issue of this nature, education, I believe, has a large part to play. The same concerns, reflecting different values perhaps or different degrees, were raised when we were considering same-sex marriage. This is never an easy thing to do because it can run up against the beliefs of certain individuals, but I think that this ultimately is an issue of respect.
I would like to reassure the committee members. We will be tabling four amendments on Thursday. They may dissipate certain concerns. I am not an expert in this area but here is what I understand.
I was listening to Mr. Rathgeber's questions, that are logical up to a point. The argument that one often hears with respect to issues or amendments of this nature, is that what is being sought already exists, just not explicitly. Jurisprudence makes up for this by guaranteeing a certain openness because rights are acknowledged. However, those rights are not always written down. In writing them, in my opinion, two very important issues are resolved. First, there is clarification and therefore no more ambiguity. One would no longer need to prove that these are protected rights simply based on a liberal interpretation. I am not referring to my colleague, Mr. Cotler's, party; I am using the word in its better sense. It's a joke.
Second, in my opinion, when you write something down and you're not afraid to state it clearly, that constitutes a form of education. It also fosters respect for a real situation. I don't think that anyone around this table wants to see people hit, beaten, verbally, physically or otherwise abused, simply because of what they look like or what they represent. I don't think anyone supports that. The message we are sending out with Bill C-279 is that this is written down, and it will certainly help improve the situation.
Have I understood?
