I appreciate the space that's being provided to me and to the centre today to have our voices heard and to speak for those who cannot. I'm here for them, for me and for all Canadians who value justice and equality. We're here in solidarity with the LGBT historians, and we fully support the points raised by Egale and Mr. Leckey.
Before I begin, I would like to acknowledge that these proceedings are taking place on unceded Algonquin territory.
As indicated by my colleagues today and last week, Bill C-75 is a wonderful opportunity for us to honour the apology made by the Prime Minister and address the continued criminalization of the LGBTQ2SIA community and the lack of bodily autonomy experienced by members of our community.
That said, before I make my critiques and recommendations, I would like to offer my commendation for the inclusion of the repeal of anal intercourse as a crime. This repeal is a step forward, and the change is long overdue. Thank you.
However, if we stop at this issue, this bill will become a lost opportunity for so many other overdue changes that would bring justice and equality to the LGBTQ2SIA community and all Canadians. We are everyone and we are everywhere.
The lack of repeal of the bawdy house law and vagrancy, nudity, immoral theatrical performance and indecent exhibition laws remains a serious point of contention between our community and the government. The apology delivered last year by the Prime Minister explicitly refers to the use of the bawdy house law to criminalize the LGBTQ2SIA community; however, no action has been taken on this issue.
The effects of these laws continue to cause harm in our communities. The people who have been charged and convicted under them have lost their families, their loved ones and their careers. They live in precarious situations. Some have taken their lives. Those who are still with us cannot have the records erased until this law is repealed. They continue to live with the shame of such treatment, as some have for over 30 years. This state-caused harm has been acknowledged by the Prime Minister himself and yet continues to be put aside.
The criminalization of sex work has been ruled unconstitutional by the Supreme Court, specifically in the 2013 Bedford case. Unfortunately, the PCEPA reconstituted a number of those crimes deemed unconstitutional, including communicating, obtaining sexual services for consideration, material benefit from sexual services and procuring, and advertising and material benefit in advertising, which work together to isolate sex workers. They cannot screen clients or hire security or administrative support. Such laws continue to put sex workers in danger.
Local, provincial and federal police services continue to use the existing legislation to harass and criminalize folks who should be allowed to do their jobs with the support and protection of the state. We strongly recommend that a clear decriminalization of sex work be included in Bill C-75.
Bill C-75 fails to protect intersex children from non-consensual surgery. In June 2017 the CCGSD came out with our “Pink Agenda”, making it clear that we stand in solidarity with intersex communities and their right to decide what is best for their bodies, yet today subsection 268(3) of the Criminal Code of Canada allows non-consensual surgery by medical professionals to alter the bodies of infants and children whom they perceive to be ambiguous, that is, intersex.
In doing so, the bodily autonomy of those infants is removed by the state, the parents and the medical practitioners who make these decisions and perform these surgeries. This causes undue harm because of their own discomfort. For example, Kimberly Mascott Zieselman, who published an opinion piece in USA Today in 2017, had her testes removed without her consent when she was 15. This surgery led her to take hormone replacements for the rest of her life.
She was not even informed that she had had this surgery until she was 41 years old. Imagine finding out that part of your body had been removed without your consent. Imagine that it led to a continuing medical condition and medical expense for the rest of your life. That's what we allow with this law. We strongly recommend that the repeal of subsection 268(3) be included in Bill C-75.
Bill C-75 fails to limit the laws that allow the criminalization of HIV. We have been asking for clarity on this. To this day, and regardless of the government's own report, the criminal justice system's response to the non-disclosure of HIV, which states that HIV transmission is a public health issue instead of a criminal issue, is that the non-disclosure of HIV is treated as an aggravated sexual assault in the criminal justice system.
In that same report, it is demonstrated that sexual activity with a person living with HIV who is taking treatment as prescribed and has maintained a suppressed viral load “poses a negligible risk of transmission.” The continued ability to criminalize the non-disclosure of HIV is in direct opposition to the government's own evidence-based report.
Bill C-75 can be used to limit this law. It can be used to ensure that non-disclosure of HIV is not criminalized and that members of the LGBTQ2SIA are not discriminated against by homophobic, transphobic or otherwise rogue Crown attorneys. However, as it is written, it does not.
My last point is that Bill C-75 fails to properly define “marginalized person”. While C-75 would require judges to consider the circumstances of an accused person from a marginalized group when deciding on bail conditions, the lack of definition of “marginalized persons” can be interpreted to exclude the LGBTQ2SIA community. We strongly recommend the explicit inclusion of LGBTQ2SIA in the definition of “marginalized persons” in C-75.
Thank you very much for listening.