Okay. That was my question.
Evidence of meeting #55 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was chair.
A recording is available from Parliament.
Evidence of meeting #55 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was chair.
A recording is available from Parliament.
3:35 p.m.
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
Mr. Chair, if I still have the floor, which I believe I did—
3:35 p.m.
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
In discussions before second reading, many members on the opposite side of the House for a definition for gender identity to be added to the bill. I have presented one here that is based on the broad consensus of international law and other laws for gender identity, which refers to the “...deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.”
This is a fairly well-accepted definition of gender identity internationally, so I move the motion.
3:35 p.m.
Conservative
3:35 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
The members will note that I have proposed an alternative definition of gender identity, which is found in the package of amendments as CPC-8 on page 11. I was caught somewhat off guard with the last vote. Although I did vote against NDP-1, that precluded any debate on close to half a dozen CPC amendments. I understand why that is, but I'm caught a little off guard and I don't want the same thing to happen with respect to any proposed amendments in Bill C-279, clause 1, line 21.
Procedurally I suppose we have to debate both proposed definitions concurrently before we can vote on either of them. If we vote positively on NDP-2, I presume you're going to rule CPC-8 non-votable. I don't know if you can give me a ruling on that in advance.
3:35 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Therefore, we have to have this debate concurrently. Formally or otherwise, we have to debate CPC-8 and NDP-2 at the same time and let the committee decide which is a better definition, or if no definition is required.
I don't think NDP-2 is necessarily a bad definition, but I would suggest to the members that CPC-8 is actually a superior definition.
The most problematic verbiage in NDP-2 is the words “deeply felt” in line 3 of the proposed amendment. These are serious matters, and the witnesses who have testified, especially those who have testified from the transgender community, all feel very deeply about their gender identify. They feel very deeply about their gender expression.
I think it would naturally be difficult to come to a committee and talk about these very sensitive matters, the tribulations and the trials they have been put through as a result of their gender identity. I think it would be almost axiomatic that anybody who is claiming the protection of gender identity under the Canadian Human Rights Act feels deeply that they have experienced gender identity issues.
What I propose—and this might be shutting the gate after the cows have left—is some sort of objective analysis. I anticipate that the sponsor of the bill is going to oppose me on this proposition, but I would like to see some sort of objective analysis to give credibility to the claim that one has gender identity issues.
Most of the criteria that currently afford protection under the Human Rights Act make it evident upon examination that the person qualifies. When somebody is claiming to have been discriminated against on the basis of race, ethnic origin, or sex, a cursory look at the individual would likely tell the commissioner or the tribunal that the person in fact falls into a class of individuals that are afforded protection by race, sex, or ethnic origin.
Other criteria that currently afford protection are slightly more tricky—certainly sexual orientation and religion—but with religion, if a matter were to go to an adjudication or to a tribunal, the complainant could at least theoretically be compelled to provide the tenets of his faith to demonstrate that he is in fact a subscriber to the religion he claims to belong to, and is therefore afforded protection against discrimination on the basis of religion as enumerated in section 2 of the Canadian Human Rights Act.
However, with respect to gender identity, I challenge the sponsor of the bill to differentiate between individuals who are genuinely in need of this protection—and I readily admit those individuals do exist—and individuals who might raise it as a matter of convenience.
I think the DSM-IV-TR backs me up on this. Gender identity disorder, or gender identity dysphoria, is a clinical term that refers to individuals who truly believe their inherent gender is something other than the gender assigned to them at birth.
I would suggest to the members of this committee that if a person is genuinely experiencing a gender identity disorder, he or she should be able to provide some sort of objective analysis of it.
Otherwise, in this section it's the individual's “deeply felt internal and individual experience”. If I'm reading this correctly, all an individual has to say is, “Yes, I deeply feel that I have gender identity issues” and they're automatically.... It's, “Do you feel deeply about it?” Of course the person feels deeply about it; otherwise they wouldn't be there.
If that is the test for establishing the eligibility for human rights protection, I think we've set the bar too low.
These are serious matters. Individuals who seriously have bona fide gender identity issues ought to be afforded protection, and I accept that premise, but there ought to be some sort of objective way of analyzing it, as opposed to self-describing as having gender identity issues pursuant to the qualifier “deeply felt”.
I think other members of the committee may want to wade in on this debate.
3:40 p.m.
NDP
Randall Garrison NDP Esquimalt—Juan de Fuca, BC
Thank you very much.
Mr. Chair, this definition was drawn from the Yogyakarta principles, which were drafted by 29 experts in international law, including the former UN human rights commissioner; 13 current or former UN human rights special mechanism office-holders; two serving judges; and a number of other academics. Seventeen of those experts were women.
While we can, as this bill seems to inspire people to do, speculate on what might happen with cases, this is drawn on something firmly based in international law and practice, and that's the reason it's being included in the bill.
3:45 p.m.
Conservative
David Anderson Conservative Cypress Hills—Grasslands, SK
Thank you, Mr. Chair.
I appreciate the committee's being willing to hear me today.
I have some of the same concerns as those Mr. Rathgeber has mentioned today as we look at the bill, and I have heard from my constituents over the last few months that they are very concerned about what I would call a lack of proper definition of the two terms.
I understand that one of these is likely to be removed from the bill, but I don't think the proposal we see being made in amendment NDP-2 brings us much closer to understanding than does having both of them included.
When I read the lines talking about “deeply felt internal and individual experience of gender”, I wonder how far from “gender expression” that actually is. From my perspective I—and I think from the perspective of the folks I've talked to, they—would see those as being pretty much similar things.
I understand the concerns that Mr. Garrison has in trying to define this term. I think Mr. Rathgeber is being reasonable in his request that at some point there needs to be a little more structure put into the definition.
The criticisms of the bill right from the beginning have been pretty much around the definitions and around trying to find how we can come to a definition that addresses the concerns of persons who feel they need to be protected and the members of the public who feel that this bill doesn't need to be passed as it is.
I think, as Mr. Rathgeber indicates, there needs to be a more serious, if you want to call it that, or a longer look at what the definition of “gender identity” might be. Getting another opinion on that, as he has talked about, is a reasonable thing to ask for, because as we go through this issue we want to try to accommodate people. People who truly believe that they are of a gender other than that assigned at birth need to be protected; they need to make sure they have that kind of protection. At the same time, we need to make sure that others are not taking advantage of the code as it's written, so I am going to have to disagree with Mr. Garrison that this is an adequate definition.
As was pointed out as well, the other subjects that are chosen here are pretty much identifiable from the outside. In the case of such matters as race, national or ethnic origin, or colour, people can pretty clearly understand immediately that there is a characteristic they can identify in them. I think the lack here is that such a characteristic is not found in this case.
If I'm married, I'm married not because I have a deeply felt conviction that I'm married; I'm married because I actually went out and got married. If I have a family status, it's a place in a family such that I know what my status and my position is. If I have a disability, I'm well aware and others around me are likely aware of what it is. The same would apply to the other subjects there.
I think we're falling down here. I don't see it as possible to support this bill unless we do a better job of these definitions. Really, the whole legitimacy of this bill depends on our being able to come up with a definition that Canadians are not only going to be able to support but also understand when they support it. To this point, people have not been able to, and I don't think that Mr. Garrison's suggestion of “deeply felt internal and individual experience” is going to be adequate for Canadians to understand what we're talking about.
As well, I'm not sure that it actually deals with the issues the bill is trying to address.
I'm not sure what the solution is. It may be too late to make those amendments here, or perhaps you have some later that will deal with this issue, but I don't think this is a good definition. I'm going to have to vote against it, Mr. Chair.
3:45 p.m.
Conservative
3:45 p.m.
Conservative
3:45 p.m.
Liberal
Sean Casey Liberal Charlottetown, PE
First off, I do think it's positive that there's a definition being added. I also think it's encouraging that the definition that is being added is adopting principles from international law. I think that's a good practice for us in general terms—not just in this instance, but in many cases.
I have a question for Mr. Rathgeber, and probably a question for our experts as well, but before that, in the case of discrimination based on religion or some other ground, there has to be a discretion left with the Human Rights Tribunal to assess the validity of the claim that one is of one religion or another religion. I think the proposed amendment inserts a degree of skepticism that we've trusted the boards to work through in other grounds of discrimination. I don't see why this one would be different.
My question for Mr. Rathgeber and the panel comes back to the genesis of the wording that Mr. Rathgeber has chosen. We know the wording that has been put forward in NDP-2 had its genesis in internationally recognized principles. With regard to the wording that is chosen in the alternate definitions, is there some body of case law, or something we can point to, that will help us have some predictor of how these are going to be interpreted—in terms of how they're going to be different?
I suppose the same question would go to our legal experts here. Do you have any commentary or advice you could offer with respect to the likely legal interpretation of the contentious words, which appear to be “deeply felt”? I think that would be of great benefit to the committee.
Thank you.
3:50 p.m.
Conservative
3:50 p.m.
Laura Stone Counsel, Human Rights Law Section, Department of Justice
We're not able to make predictions about what the tribunal will or will not decide and how they will interpret the scope of any new terms that are added to the act.
I'm not aware of any interpretations of the words “deeply felt”. They're not existent in the act currently.
As for the difference between the two definitions, again, we can't make a prediction as to how the tribunal would interpret one set of words over the other.
3:50 p.m.
Liberal
Sean Casey Liberal Charlottetown, PE
My sense from Mr. Rathgeber's comment is that his concern is whether these words would automatically require the application of a subjective standard, as opposed to an objective or a blended standard. I think that's the real nub of the issue here. If it's simply good enough to say “I feel it”, does that surpass the test, or is there, if you will.... Does that preclude any degree of objectivity?
Again, I would appreciate any comments or guidance you have with regard to that aspect. I think whether it's purely subjective is the stumbling block.
3:50 p.m.
Counsel, Human Rights Law Section, Department of Justice
I understand the question.
I'll just speak to my colleague for a moment.
December 6th, 2012 / 3:50 p.m.
Stephen Zaluski Deputy Director General and General Counsel, Human Rights Law Section, Department of Justice
To follow up on what Ms. Stone has said, with respect to the existing grounds in the act, as she has said, there is no element of subjectivity as the existing standard for measuring whether discrimination has been made out in a given case.
Arguably, a parallel could be made with respect to section 13 of the Canadian Human Rights Act, which of course is the subject of another bill before the Senate at this point.
The way section 13 has been interpreted by the courts, and by the Supreme Court of Canada in particular in the Taylor case, does certainly incorporate a subjective component in terms of the way the individual feels that the particular alleged hate speech has impacted upon him or her. Jurisprudentially, there is some move away from the strict language of that section to look at the impact it actually has.
For example, “deeply held feelings of calumny” are, I think, the words the Supreme Court of Canada in the Taylor case to describe the impact that hate speech might have on a victim. That was one of the tests that was used to determine whether a violation of the hate speech provision has been made out. It's not completely foreign to have a subjective element introduced in a ground, but as Ms. Stone has said, how a court or a tribunal would interpret or choose.... How these two definitions would lead to different outcomes is purely a matter of speculation for us at this point.
3:50 p.m.
A voice
Thank you.
3:55 p.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
Like Mr. Rathgeber, I am very concerned with the issue of evidence and of course proving what is “deeply felt”, which would probably be very much subjective. On the other hand, in his amendment, I guess we're talking about an “inherent feeling”, which may be far more objective.
Of course, any one tribunal will want to base itself on some standard so that it could offer some consistency in rendering decisions. I don't know if any one of the two definitions, quite frankly, could provide some sort of a consistent standard. For that reason, I wonder if we're not muddying the waters when we have the Montreuil case, in which the Canadian Forces refused Montreuil's application for enrolment into the forces. It was determined he was suffering from gender identity. Following the precedent set, the federal and provincial tribunals and the Canadian Human Rights Tribunal stated there is no longer any doubt that the discrimination based on transsexuality is discrimination based on sex or gender as well as discrimination based on disability.
Mr. Rathgeber asked the chairman or the president of the commission if this case had been overturned and whether or not it was good law. The answer was yes, it was in fact good law. It hadn't been overturned, so are we in fact muddying the waters here?
If we go to the completely objective criteria, is a tribunal going to be called upon to have expert witnesses testify exactly what “inherent” means? Does it become a battle of experts upon experts? Are there inherent costs associated with it? Would the tribunal want to have some sort of expertise to determine exactly what would be an inherent feeling?
We all know from going to court that you can have as many experts as you can have complainants, and of course the cost and time go up. The tribunal may become confounded by evidence. Do we completely muddy the waters with regard to what is otherwise a consistent ruling that there is no longer any doubt that in the issue of transgender, it's discrimination based on sex and disability?
Why would we want to go down this road? Could you provide us your advice as to whether or not the tribunal might call upon expert testimony in such a case? Is this something that there would be a cost associated with? Would it be a power that the tribunal could compel, having some sort of expert system?
3:55 p.m.
Counsel, Human Rights Law Section, Department of Justice
If a claimant wanted to bring an expert on their behalf, it would be the claimant who would have to pay for that. The tribunal does not have the power to award legal costs. If a complainant wished to call experts—and I believe they do sometimes call experts—they could do so.
