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House of Commons Hansard #107 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was general.

Topics

Safer Railways ActGovernment Orders

1:25 p.m.

Some hon. members

Agreed.

Safer Railways ActGovernment Orders

1:25 p.m.

An hon. members

On division.

Safer Railways ActGovernment Orders

1:25 p.m.

Conservative

The Acting Speaker Conservative Bruce Stanton

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Transport, Infrastructure and Communities.

(Motion agreed to, bill read the second time and referred to a committee)

The House resumed from March 29 consideration of the motion that Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

1:25 p.m.

Conservative

The Acting Speaker Conservative Bruce Stanton

I will let the hon. member for Renfrew—Nipissing—Pembroke know that we will have approximately three minutes remaining in the time allocated for government orders, so I will need to interrupt her at that time.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

1:25 p.m.

Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Mr. Speaker, I am pleased to have the opportunity to discuss Bill C-15, the strengthening military justice in the defence of Canada act, which is currently at second reading.

The bill addresses a variety of issues contained within the National Defence Act and aims to reinforce the military justice system. It has been discussed at length in the House, the Senate and at committee. It gives careful consideration to Senate committee recommendations stemming from the study of Bill C-60, as well as to the recommendations and proposed amendments put forward by the members of House when the bill's predecessor, C-41, was studied in committee. It would bring the National Defence Act up to date by addressing the recommendations made in Chief Justice Lamer's 2003 report, which itself was a result of an extensive review of the issues at hand.

In this regard, Bill C-15 would ensure our military justice system remains in keeping with Canadian values and in harmony with the Constitution and it would continue the maintenance of order and good discipline within the Canadian Forces.

The government recognizes that the proposed amendments in this bill are broad and, in some cases, complex. However, it should be noted the need for these changes has been recognized in most cases for years and that most of the proposed amendments have already been discussed and analyzed in committee.

This is the third time that this proposal has been put before the House of Commons since 2006. I move:

That this question be now put.

Strengthening Military Justice in the Defence of Canada ActGovernment Orders

1:30 p.m.

Conservative

The Acting Speaker Conservative Bruce Stanton

Given the time, we will go to the questions and comments time for the hon. member for Renfrew—Nipissing—Pembroke at the next opportunity.

We will now move to private members' business as listed on today's order paper.

Canadian Human Rights ActPrivate Members' Business

1:30 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

moved that Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the second time and referred to a committee.

Mr. Speaker, I am honoured to lead off the debate at second reading of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

I am honoured to stand in this House and carry on the NDP tradition of standing up for the rights of transsexual and transgendered Canadians. I would also like to thank the 18 seconders of my bill for their support, which demonstrates the broad support that this bill has in this Parliament.

As many will be aware, this bill passed the House of Commons some two years ago in February 2011 but died on the order paper in the Senate when the 2011 election was called. I am hoping that we will have sufficient support once again from all parties in this House to adopt this very necessary bill.

I will begin by addressing why this bill is so necessary in a Canada where the Charter of Rights and Freedoms has become part of what one might call our national DNA and where we very much believe that rights are fully protected. The problem is that some citizens do not enjoy the full protection of their rights under the law, and the problem is that those Canadians are often subject to discrimination, denial of public services and, all too often, harassment and violence.

The reason this bill is before us today is because gender identity and gender expression rights are not expressly protected in Canada. Simply put, transgendered, transsexual and gender variant Canadians do not have the same degree of protection of their rights and freedoms as all other Canadians, and this bill seeks to remedy that gap.

Other minority groups do have protection under the Canadian Human Rights Act and under the Charter of Rights and Freedoms. However, these same guarantees are not provided to transgendered, transsexual and gender variant Canadians because in law they are not defined as an identifiable group.

Right now, people cannot be discriminated against on the basis 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. Unfortunately, none of those categories offer protection to trans-Canadians as the discrimination they suffer does not fit into those categories.

I want to emphasis again, since there is sometimes misunderstanding, that sexual orientation is not a blanket term that offers protection against the discrimination, prejudice and violence suffered by trans-Canadians. In fact, in a recent study carried out by the Trans PULSE Canada, 30% of the participants self-identified as straight, as heterosexual.

Transgendered, transsexual and gender variant rights are not just other words for sexual orientation. They are a category that is lacking and missing in our law.

Around the world, transsexual, transgendered and gender variant people do suffer high levels of discrimination, prejudice and violence, but in Canada, a country that prides itself on equality, acceptance and diversity, trans-people are no exception.

Each November, the Transgender Day of Remembrance is observed around the world to draw attention to the violence against the trans communities. Last year, the observance marked the deaths of over 220 people around the world as the result of attacks based on their gender identity or gender expression.

There is a lot to be done in the world at large but also a lot to be done here at home. I acknowledge that changing laws alone will not solve all the problems but I believe the first step to ensure that trans-people have the same rights as all other Canadians and that trans-people's rights are upheld just the same as those of any other citizen comes with the passage of this bill.

As a society, we must take this issue seriously so that trans-people are recognized as full citizens and are entitled to and can use their rights in the same way as any other citizen so they can participate fully in their communities. Again, I believe the first step will occur with this bill.

Bill C-279 would amend the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds for discrimination. It would also amend the hate crimes section of the Criminal Code to include gender identity and gender expression as distinguishing characteristics protected from hate crimes under section 318 and also as aggravating circumstances to be taken into consideration at sentencing under section 718.2 of the Criminal Code.

I should take a moment to address the question of definitions, as some have said that gender identity and gender expression are vague terms. That is not true in Canadian law. We have had litigation before our Canadian Human Rights Commission and in other places where these terms have received a very clear definition.

Gender identity is an individual's self-conception as being male or female, or both, or neither, as distinguished from one's birth-assigned sex. Gender expression, on the other hand, is how a person's gender is communicated to others, emphasizing or de-emphasizing characteristics, and changing or not changing behaviour, dress, speech and/or mannerisms.

The bill seeks to address the lack of explicit human rights protections on both counts, gender identity and gender expression.

I want to take this opportunity to reiterate that what we are talking about here are basic human rights enjoyed by all other Canadians and not some category of special rights. These are simply the same rights that are inscribed in Canadian legislation for all other Canadians. These rights and protections are necessary to ensure that trans Canadians can safely live out their lives, just as any other Canadian.

It is important to note that we will not be breaking new ground when we adopt Bill C-279. It will offer and include the same types of protections that are being implemented in other places in Canada and around the world. In fact, in the year 2002, the Northwest Territories entrenched protections for transsexual and transgendered people in its human rights act. Hence, the Northwest Territories has already taken a lead on this issue. Moreover, the cities of Vancouver, Ottawa and Toronto have all amended their anti-discrimination policies to protect against discrimination based on gender identity and gender expression.

We will also not be running in advance of the field. In Canada, the Canadian Human Rights Act review panel, in the year 2000, recommended these changes. In this House, a previous member, Bill Siksay, introduced the same bill in 2005, 2006 and 2008, before it was finally passed in 2011. Some would say that time is well due for passage of the bill.

Finally, I would mention that gender identity and gender expression are grounds for protection under the UN Declaration on Sexual Orientation and Gender Identity, which Canada signed on December 18, 2008. Accordingly, one could argue that having voluntarily signed on to this international convention, Canada is actually obligated to make the legislative changes necessary to bring those protections into force.

As well, in November 2011, the UN High Commissioner for Human Rights, for the first time, issued a comprehensive report on the rights associated with sexual orientation and gender identity and made a number of recommendations to all member states. Four of those are very relevant to Canada.

The high commissioner for human rights said that all member states needed to enact comprehensive anti-discrimination legislation that would include discrimination on the grounds of sexual orientation and gender identity. That is precisely what we are trying to do in Bill C-279.

The high commissioner went on to say that all countries should facilitate legal recognition of the preferred gender of transgendered persons and establish arrangements to permit relevant identity documents to be reissued, reflecting the preferred gender and name without infringement of any other human rights.

If we pass Bill C-279, this would facilitate making those necessary changes in the regulations that govern the issuance of identity documents, which is often a large problem for transgendered Canadians. As we have seen recently, with the changes under the air safety regulations for identity during travel, this would resolve the problem that was created by the introduction of this discriminatory regulation.

The high commissioner's fourth recommendation calls for the implementation of appropriate training programs for police, prison officers, border guards, immigration officers and all other law enforcement and security personnel to counter homophobia and transphobia and to ensure that the rights of transgendered citizens are observed by officials of the state in all appropriate circumstances.

Again, the UN High Commissioner for Human Rights has called on Canada, as a member of the United Nations, to take the kind of action I propose in Bill C-279.

Some say, what is the urgent need to fill this gap in our human rights legislation? When one meets with, as I have done, many representatives of transgender organizations and talks with transsexual or gender-variant Canadians, they mention three recurring areas where people have faced very serious forms of discrimination, and I want to talk briefly about those: access to health care, protection from violence, and economic inequality.

In Canada, we pride ourselves on everyone having equal access to health care. In fact, the Canada Health Act says that the primary objective of our health policy is to ensure that we protect, promote and restore the physical and mental well-being of all Canadians. However, trans Canadians find that in accessing health care, they are often denied medically necessary care by being forced to deal with the issue of their gender before they can access the service. They also suffer from under-delivery of psychological health care services and, often, insensitive or hostile treatment from health care professions based on gendered spaces in public institutions.

Thus the needs of transgendered and transsexual Canadians in non-health care related matters are urgent, but perhaps most urgent in this health care field.

Some trans people believe that in order to achieve their full identity, they require surgery. However, there is not equal access to that surgery among all the provinces in this country. By adding gender identity and gender expression to the human rights code, we can help promote access to those surgeries. However, others do not believe that surgery is necessary for their transition and are often denied access to care and other services because they have not had surgery to change their gender. Again, for transgendered people, they get hit by both sorts of discrimination, in being denied access to surgery and also sometimes being denied access to a full transition because they have not had surgery. This bill would help to solve that problem.

In terms of mental health services, we know that mental health resources in this country are already quite stretched and that people seeking mental health care are often faced with long waiting lists to see therapists, no matter what their mental health problem is. This simply further compounds the problems faced by trans Canadians.

A survey conducted by Trans Pulse Canada reports that in Ontario, rates of depression among transgendered Canadians are as high as between 61% and 66%. When we examine suicide rates for transsexual, transgendered and gender-variant people, 77% of trans people in Ontario, unfortunately, reported seriously considering suicide; 43% reported they had attempted suicide at some point; and of those who considered suicide, almost 50% were between the ages of 16 and 24. We are seriously failing trans Canadians in the area of mental health and suicide prevention in this country.

In terms of violence, there have been many surveys of transgendered Canadians showing they are subject to very high rates of violence. However, law enforcement agencies in this country do not collect statistics based on gender expression and gender identity. Therefore, we have no official statistics to tell us how serious the problem really is.

When we look at bullying, Egale Canada did a large-scale survey of LGBTQ across Canada. It found that 90% of trans-identified youth reported hearing transphobic comments daily directed at them; 23% of those students reported hearing teachers directing transphobic comments against them daily; 25% reported having been physically harassed; and 24% reported having property stolen or damaged. We can see from that small survey of trans youth that there are very high rates of violence and harassment against the trans community.

By adding this to the hate crime section of the Criminal Code, we can send a very powerful message that such is unacceptable behaviour in Canada and that the rights of transgendered people must be recognized and transgendered people afforded the right to participate fully in schools as well as other places in our communities.

Finally, in terms of employment, it is an area where trans people often face serious discrimination. Over 20% of those surveyed in Ontario by Trans Pulse Canada in the past were unemployed, which was two and half times the average unemployment rate in Ontario. Job stability is often limited and those who choose to transition in a workplace often have very serious problems in retaining their employment, due to hostility either from the employer or others in the workplace.

In conclusion, let me reiterate that the purpose of this bill is to fill a gap in Canada's human rights legal framework. It is not the purpose to create special rights for anyone. It is about equal human rights for all Canadians. Like all of us, trans people want to be able to take the advice of Oscar Wilde when he said, “Be yourself; everyone else is already taken.”

This bill will ensure that in Canada, transgendered, transsexual and gender-variant people have the freedom to be themselves and the protection, and rights guarantees, that all other Canadians have. As I have said many times before, trans-people are our brothers and our sisters, our children, our parents, our partners, our friends and our colleagues, and they deserve the same rights and protections as every other Canadians.

I look forward to the passage of this bill to help make that a reality.

1:45 p.m.

Conservative

The Acting Speaker Conservative Bruce Stanton

Order, please. I have the honour to inform the House that a communication has been received as follows:

The Secretary to the Governor General and Herald Chancellor

April 4, 2012

Mr. Speaker,

I have the honour to inform you that the Right Honourable David Johnston, Governor General of Canada, signified royal assent by written declaration to the bill listed in the Schedule to this letter on the 4th day of April, 2012, at 6:22 p.m.

Yours sincerely,

Stephen Wallace

The schedule indicates that the bill assented to on Wednesday, April 4, 2012, was Bill C-19, An Act to amend the Criminal Code and the Firearms Act.

The House resumed consideration of the motion that Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the second time and referred to a committee.

Canadian Human Rights ActPrivate Members Business

1:45 p.m.

Delta—Richmond East B.C.

Conservative

Kerry-Lynne Findlay ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, unless I have not read the bill properly, I do not believe the hon. sponsor has defined the two terms at the centre of his proposed legislation, gender identity and gender expression. It seems to me that it is rather imprudent as legislators to pass legislation without clearly demonstrating the full extent of the bill's intention.

I understand the intent behind what the hon. member is doing, but does he agree with the statement that as legislators we have to be clear? Unfortunately, to my mind the bill, as drafted, is vague with respect to those central points.

Canadian Human Rights ActPrivate Members Business

1:45 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Mr. Speaker, I would say two things. One is that the bill was already adopted previously by the House of Commons and it does not appear to have been an obstacle in the previous Parliament, although neither the parliamentary secretary nor I were there at the time, so I do accept that there can be new debate on this.

However, not every bill defines every term, and some terms that we use in bills are already clearly defined in jurisprudence. I think the parliamentary secretary would find that the terms ”gender identity” and “gender expression” in case law, and I know she is a former human rights commissioner, before human rights commissions already have a very clear legal meaning. I would expect that any doubt that might remain about that would be very quickly settled in the first cases litigated under this legislation.

Canadian Human Rights ActPrivate Members Business

1:50 p.m.

Saint Boniface Manitoba

Conservative

Shelly Glover ConservativeParliamentary Secretary to the Minister of Finance

Mr. Speaker, I thank the hon. member from the NDP for bringing this bill forward. I intend to support anything that will allow Canadians to feel more at home here in Canada and more protected.

However, having said that, and I am a person who has been blessed with friends and family members who support this as well, I am concerned about the lack of a definition. I was very vocal in the last Parliament about wanting a definition, because I truly believe if a definition were provided, more people would likely support the bill.

I would encourage my friend and my colleague to please consider amending the bill so that we can have a wide variety of support for transsexual and transgendered people. I think it is warranted and I think it is prudent.

Canadian Human Rights ActPrivate Members Business

1:50 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Mr. Speaker, I thank the hon. member for her commitment and her previous very strong public support for the bill, based on her personal experience in law enforcement in Winnipeg and other experiences. I do thank her for that support.

This is debate at second reading, and we are asking for approval in principle of the bill. If the bill goes to committee, I am sure we could have this discussion about inserting a definition.

I, at this point, have argued that I do not believe it is necessary, but I would be quite happy to have those discussions in committee once we give the bill approval at second reading.

As the hon. member did before, I hope she will speak to many of her colleagues and help to build support among all caucuses for this important bill.

Canadian Human Rights ActPrivate Members Business

1:50 p.m.

NDP

Hélène Laverdière NDP Laurier—Sainte-Marie, QC

Mr. Speaker, I would like to thank my hon. colleague for his presentation and the bill he introduced in the House. If I may, I would like to thank him personally as well as on behalf of a significant proportion of my Laurier—Sainte-Marie constituents.

If this bill is passed, a number of people in my riding will benefit. These are people who make an extraordinary contribution to the cultural, social and economic life of Laurier—Sainte-Marie.

Does my colleague believe that his bill will help not only the people targeted, but also society as a whole?

Canadian Human Rights ActPrivate Members Business

1:50 p.m.

NDP

Randall Garrison NDP Esquimalt—Juan de Fuca, BC

Mr. Speaker, I firmly believe that the bill would help complete what we might call Canada's human rights project. Anytime we make our society more inclusive, we draw on the skills, talents and abilities of all our citizens and we advance the interests of our whole community and our whole country at the same time.

I would agree that while the specific protections go to a certain group of people, this would help make Canada a better country overall.

Canadian Human Rights ActPrivate Members Business

1:50 p.m.

Delta—Richmond East B.C.

Conservative

Kerry-Lynne Findlay ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, I am pleased to have this opportunity to contribute to the debate on Bill C-279 sponsored by the hon. member for Esquimalt—Juan de Fuca, an opposition member from my home province of B.C., for whom I have respect. I think he knows that.

We studied Bill C-279 and, upon reflection, it is clear to me that the proposed amendments are unnecessary. Here is why I will be voting against Bill C-279.

As members may already be aware, the bill proposes to add the undefined terms “gender identity” and “gender expression” as prohibited grounds of discrimination in the Canadian Human Rights Act and into the aggravated sentencing provisions and hate propaganda provisions of the Criminal Code. I understand that the underlying purpose of these legislative amendments is to provide explicit protection for transsexual and transgendered Canadians. I have sympathy with the intention. However, I believe this bill as drafted does not equal the purpose.

I would like to turn first to a consideration of the proposed amendments to the Canadian Human Rights Act. The purpose of this act is to help create a society in which individuals have access to equal opportunity without discrimination. The grounds that determine what will be considered discriminatory include race, national or ethnic origin, religion, sexual orientation, disability and several others.

It is also worth recalling that this act prohibits discrimination in employment and services in areas of federal jurisdiction. For example, it protects individuals who are employed by the federal public service or federally regulated industries such as banks and airlines.

In interpreting and applying this act, the Canadian Human Rights Tribunal has already accepted and considered several complaints brought by transsexuals under the ground of “sex”. In fact, the ground of sex in anti-discrimination laws is interpreted broadly and has evolved over the years. It is now understood to cover discrimination complaints based not just on sex but also on gender attributes, pregnancy, childbirth and, more recently, transsexualism. Therefore, for those complaints brought by transsexuals, the tribunal has used the existing grounds already contained in the act.

For example, in one complaint brought by a transsexual inmate in a federal prison, the tribunal dealt with the complaint and Correctional Service Canada developed a policy to deal with potential future cases. In another complaint brought by a transsexual person against a bank, again the tribunal dealt with the complaint under the ground of sex. In fact, I presided over a successful mediation of just such a case when I was a member of the Canadian Human Rights Tribunal.

In deciding that transsexuals are already protected by our federal human rights law, the tribunal's approach is consistent with that taken by the provincial human rights tribunals that have also found discrimination against transsexuals to be covered by the existing ground of sex.

Since Canadian tribunals and courts have already recognized discrimination against transsexuals as a form of sex discrimination, what is the bill's purpose in proposing to add these two new grounds to the act, which do not refer to transsexualism itself but to undefined concepts of gender identity and gender expression?

The point of the prohibited grounds of discrimination in the Canadian Human Rights Act is not to identify particular groups. For example, the act does not mention men and women but the broader ground of sex. It does not list Christianity, Judaism, Islam or other specific religions but simply includes the ground of religion. The act contains the ground of ethnic origin but again does not list out specific minority groups. The act is structured in this way to treat all Canadians equally and fairly and to avoid singling out for recognition specific manifestations of a given characteristic. This bill departs from that approach.

For similar reasons, we may wish to ask ourselves whether it is necessary to add these grounds to the sentencing provisions of the Criminal Code. The section in question in the code lists a number of deemed aggravating circumstances on sentencing, including evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or any other similar factor. Again, the list includes sex and it also refers to “any other similar factor”, so judges may already be able to impose longer sentences for hate crimes against transsexual persons in appropriate circumstances.

Thus, it appears there are already the necessary legal protections in place to protect transsexuals. I am not sure why it is necessary to add these new grounds when the tribunals and courts have been clear that complaints brought by transsexuals will be dealt with under the ground of sex and this ground is also included in the aggravated sentencing provision.

Furthermore, this bill adds even further uncertainty, because the terms proposed are not commonly used and are not defined by the bill itself, hence the questions we heard earlier.

It is my understanding that “gender identity” means individuals' self-conception as being male or female or their sense of themselves as male or female. It is my further understanding that “gender expression” refers to how a person's gender identity is communicated to others through behaviour, speech, dress or mannerisms. However, as these terms are neither commonly understood nor defined, their use would introduce vagueness into the law. I am particularly concerned with the unclear term “gender expression”.

We should ask ourselves what new sorts of discrimination claims would be brought before the commission and the tribunal, if this ground were to be added to the Canadian Human Rights Act. How would employers know what kind of workplace behaviour and expression would be prohibited? Would a federally regulated employer, such as an airline or transport company, be able to require the wearing of a prescribed uniform, for example? The answers to these questions are not clear to me, and they are questions we should consider carefully.

Finally, I would like to consider the role of tribunals and courts in shaping public policy. As I have said, these terms are vague and left undefined by the proposed bill. How can we ask tribunals and courts to apply something that we as legislators do not clearly understand? The fact that we have no idea how tribunals and courts would interpret these terms is also an issue we should consider.

In conclusion, I have explained that the amendments proposed by this bill are largely unnecessary, given the jurisprudence to date. The Canadian Human Rights Tribunal has already dealt with several complaints brought by transsexuals under the existing ground of sex discrimination. I mentioned a few. There is no need to add new and vague terms to the Canadian Human Rights Act or the Criminal Code. I would therefore urge my colleagues on both sides of the House to oppose this bill for those reasons.

Canadian Human Rights ActPrivate Members Business

2 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Speaker, I rise today to speak to Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code on the matter of gender identity and gender expression.

As my colleagues have noted, Bill C-279 would amend the Canadian Human Rights Act to add both gender identity and gender expression as prohibited grounds of discrimination. In addition, the bill would also amend the Criminal Code in the matter of its anti-hate provisions to include gender identity and gender expression in the definition of what constitutes an identifiable group, as well as adding gender identity and gender expression to the Criminal Code's list of aggravating factors that affect sentencing.

Accordingly, Bill C-279 constitutes an important effort to provide human rights protections to a group that remains the victim of significant discrimination in our society. I would be remiss if I did not note the hard work in previous Parliaments of the former member for Burnaby—Douglas and the current member for Vancouver Centre, both of whom have introduced similar versions of this legislation in previous Parliaments, and the member for Esquimalt—Juan de Fuca today for his legislative initiative and eloquent and comprehensive presentation of this issue on matters of fact and law.

The Ontario Human Rights Commission has noted:

There are, arguably, few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Trans-phobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.

The statistics on trans-phobia, which my colleague from Esquimalt—Juan de Fuca pointed out in his remarks today, speak for themselves. Indeed, 95% of transgendered students feel unsafe at school and 9 out of 10 have been verbally harassed due to their gender expression, according to Egale Canada.

Further, statistics from the United States reveal the significant incidence of de facto discrimination experienced by transgendered individuals. A recent national survey found that transgendered respondents experienced unemployment at twice the rate of the general population and were significantly more likely to be homeless and low-income earners. In particular, and this is shocking, 97% of transgender respondents in a recent survey reported experiencing harassment or mistreatment at work on the basis of gender identity or expression.

By adopting the amendments that have been proposed in Bill C-279, Parliament can send a strong message of support to transgendered Canadians, affirming their identity and acknowledging their struggles. Indeed, this legislation, again as my colleague from Esquimalt—Juan de Fuca pointed out, ensures that they will enjoy the legal protections accorded to other targeted groups. I enjoyed his quote from Oscar Wilde in this regard.

It is most appropriate that this debate is taking place on the eve of the 30th anniversary of the Canadian Charter of Rights and Freedoms, the centrepiece of our Constitution, that has promoted and protected rights, particularly those of the disadvantaged and discriminated against. I note with regret that, thus far, the 30th anniversary of our charter has gone without notice from the government. It is clear that the charter has had a transformative impact not only on our laws but also on our lives, not only on how we litigate but how we live. In particular, the charter enshrines equality rights such as we see in section 15. It is in this spirit of equality that I join in the support for Bill C-279.

A crucial equality rights issue raised in Bill C-279 is the protection of transgendered individuals against hate speech. Indeed, the promotion of hatred and contempt against an identifiable group results in prejudicial harm to the individual and group targeted by that hate speech. This harm-based rationale, as the Supreme Court characterized the Keegstra, Smith and Andrews and Taylor cases, in which I intervened as counsel on behalf of the intervenant amicus curiae, supports the sanction of hate propaganda as protective of equality. As the court put it, the concerns resulting from racism and hate mongering are not simply the product of its offensiveness, but the very real harm that it causes. Thus, by affording protections to transgendered Canadians under section 319 of our Criminal Code, this House would promote their equality rights under the charter.

Fears that the inclusion of gender identity in Canada's hate speech laws may spark vexatious litigation, thereby creating a chill on free expression, are, simply put, without any foundation.

The Criminal Code has a built-in filtering mechanism that requires the Attorney General's consent to prosecutions for the wilful promotion of hatred under subsection 319(2). Moreover, prosecution for criminal incitement to hate under subsection 319(1) is subject to a high threshold whereby the incitement must be “likely to lead to a breach of the peace”.

Bill C-279's proposed amendment to subparagraph 718.2(a)(i) also constitutes a worthy effort to promote the equality rights of the transgendered. The amendment would mandate judges to consider in sentencing whether a hate crime was carried out on the basis of gender identity or gender expression.

Given what we know about the discrimination that transgendered individuals face, the failure to recognize them in section 718 would send the courts a problematic message that an attack targeting some vulnerable groups, such as ethnic and religious minorities, is more worthy of the court's special consideration in sentencing than an attack targeting other vulnerable groups, namely, transgendered people.

The proposed amendment to the Canadian Human Rights Act is equally worthy of adoption. To quote Justice La Forest of the Supreme Court of Canada, gender equality and gender identity must be included as a protected ground in the Canadian Human Rights Act because “to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issue to remain invisible.” This is a clear and compelling consideration with respect to the inclusion of this ground.

Some members of the House have argued that Bill C-279 is unnecessary because transgendered people are already protected under the existing categories of sex and disability. With respect, this position is misinformed.

First, gender identity and gender expression do not refer to biological sex or sexual orientation. Rather, the terms refer to an inner feeling of being male, female, both or neither. Second, gender identity and gender expression are not a disability. Rather, they are a sense of self and a source of identity. To confound gender identity and gender expression with sex and disability is to ignore the unique experiences of discrimination and disadvantage that are faced by transgendered Canadians.

Finally, to borrow again the language of Justice La Forest of the Supreme Court of Canada, a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people “invisible”. By amending the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds, Parliament would enable the Canadian Human Rights Commission to keep statistical account of incidents of discrimination against transgendered individuals. The ability to compile and analyze data on discrimination against transgendered persons would be crucial in confronting the scourge of discrimination that they continue to face in our society and might also guide educational efforts in the broader community.

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

However, the Canadian Human Rights Act will only achieve this remedial purpose if it grants recognition and protection to the most vulnerable groups in Canadian society. I am proud that in 1996, guided by these principles, the Liberal Party amended the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination. I am delighted that members of the House continue to carry on the fight against discrimination on this, as we mark the 30th anniversary of our Charter of Rights and Freedoms, by seeking to add to the prohibited grounds both gender identity and gender expression and provide remedial protection to this most vulnerable and disadvantaged group.

Canadian Human Rights ActPrivate Members Business

2:10 p.m.

NDP

Dany Morin NDP Chicoutimi—Le Fjord, QC

Mr. Speaker, when I was deciding what I would like to talk about in my speech, I asked myself many questions.

Would I mention the fact that, about a year ago, Jack Layton asked me to be the associate critic for LGBT rights, the “t” standing for transgendered and transsexual? Would I talk about the fact that I am proud to be a member of the NDP's largest caucus in Canadian history, with over 100 members? Would I talk about the fact that I have met transgendered and transsexual people in my riding of Chicoutimi—Le Fjord and across Canada who have spoken to me about their reality and the discrimination they have faced at work or in the form of physical and psychological threats? Would I instead talk about everything these people have to go through, the administrative and legal problems they must deal with when the time comes for them to be recognized to get health care or to have their new identity recognized by society?

I also realized that no transgendered person was going to speak about their own challenges during today's debates, and so I told myself that I would have to contact the people I know best who are true members of the trans community to see if I could lend them my voice here in Parliament.

I would like to thank the members of the trans committee of the Conseil québécois des gais et lesbiennes, who sent me the message that I want to read to you. This will shed a great deal of light on transgendered people's experiences and priorities and on what they have to tell us as parliamentarians.

The realities of transgendered people living in Quebec are many and varied. Contrary to the popular image of a person who has been identified at birth as being male and who wants to transition to a female identity or role—a transsexual—our realities represent people from all backgrounds and walks of life who, for various reasons, cannot or do not want to adhere to the gender norms imposed on them.

Many of us do what we do in order to live a healthy and productive life and to feel comfortable with our identity. We are engineers, teachers, researchers, public servants, front-line workers, project managers, writers and cashiers. We are parents and children. We are members of Canadian society.

We are your equals, yet we are marginalized as a result of the fact that we deviate from gender norms. This marginalization is shared by those who, although they may not experience discomfort or distress as a result of their assigned gender, are judged by their peers because their appearance may not necessarily correspond to what some people see as masculine or feminine.

...We choose to use the term trans because it is inclusive and encompasses the realities of transsexual and transgendered people and of those who express their gender in a way that does not conform to gender norms. Our communities are made up of people who want to be perceived as men or women or who simply refuse to change their appearance or body to fit an often problematic image imposed by society. Although these norms are problematic for many Canadians, the marginalization that we experience as a result has significant and lasting impacts.

...

One of the arguments made by some people who oppose the inclusion of gender identity as a basis for discrimination is the definition of the suffix “phobia”. To this day, we still hear people say that they are not afraid of trans people, and that their arguments are not based on a morbid fear compelling them to take a stand or to take irrational action against trans people.

In reality, transphobia is defined by all negative attitudes that can result in the direct or indirect rejection of or discrimination against transsexual and transgender people, or any person whose identity does not conform to their gender or sex, or the norms and representations of their gender or sex.

Just as homophobia is a term that represents more than an uncontrollable or morbid fear of a homosexual person, transphobia is the discrimination experienced in our daily lives.

...

We strongly believe that transphobia is legitimized by the lack of awareness of the realities of people of non-conforming gender and the application of prejudices. Our experience has shown us that transphobia is based on irrational catastrophic scenarios. The story of minorities that make up the Canadian mosaic is replete with examples of positions taken that, when filtered through the experiences of the targeted people, have given way to a greater acceptance of our differences.

Transphobia is often expressed in refusal to recognize the gender identity of trans persons. For example, a person trying to access health care institutions often has to deal with the flat refusal by administrative and nursing personnel to use either the name by which they are commonly known or their affirmed gender, on the pretext that it is not what is shown on their health insurance card.

The washroom prowler argument, which is often used by those who oppose rights for trans persons, is a perfect example of the disaster scenario we were talking about earlier. A trans person is portrayed as the man disguised as a woman, wandering from washroom to washroom to harass, attack or assault girls and women. That rhetoric does not reflect other trans realities, like the realities of the men who are part of our communities. If we apply disaster scenario logic, a trans man is a woman disguised as a man who wanders around in washrooms to harass, attack or assault boys and men.

As we can see, these statements are enormously sexist, since they portray the man as a sexual predator prepared to do anything, even “disguise himself as a woman”, to satisfy his urges, while the example of “the woman prepared to disguise herself as a man” does not exist.

What is bizarre is that a completely false portrayal of transsexualism is used to spread this blatant and shameless sexism.

We saw this recently in the House of Commons, when there was the controversy and the problem relating to the new air travel regulations, which limited access by trans persons.

These barriers to access and this marginalization are also experienced by other people. We are well aware that some non-trans women do not conform to a certain image of femininity and also have to deal with prejudice and discrimination. If we were to try to apply our opponent’s logic, we would have to believe that these women disguise themselves as women and go from washroom to washroom to harass, attack and assault girls and women. In other words, the washroom prowler argument has no traction whatsoever.

All we want is to be able to go to the washroom without a problem, like everybody else.

The logic espoused by the opponents of rights for trans people may at times be laughable and create real risks of violence against members of our community. One of those is the risk that trans children and adolescents are forced to experience. By creating this false image of sexual perversion, these detractors confer the implicit or explicit right to stigmatize trans boys and girls and commit violence against them and also against people who do not completely conform to the norms of femininity or masculinity. Ironically, we and our opponents agree on the need to protect our children. We just believe that this protection must extend to trans children and adolescents and not only to non-trans adolescents and children. Exclusion is petty and dangerous.

Our history is filled with people who opposed expanding human rights on the basis that the law applies equally to everyone and no class of persons needs to be mentioned specifically.

The parliamentary secretary has in fact proved to us that this was her rationale for opposing the bill.

Our history is also full of magical moments when, as a nation, we recognized the need for additional protection for certain groups that are at greater risk of discrimination.

As a society, we recognized that one's ethnic or cultural background could lead to marginalization, discrimination or refusal of employment or accommodation. We recognized that women could also be marginalized and that this form of gender-based discrimination was not part of our values. We recognized that sexual orientation could create barriers for access to employment, access to full and complete participation in the defence of our country and access to recognition of same-sex unions. Each of these forms of discrimination mentioned in our Charter of Rights and Freedoms, have, at one time or another, been justified based on morality, religion, science, fear or the need for safety.

All these forms of discrimination have been recognized for what they are: barriers to equality for everyone within our country.

I will conclude by asking if we will be the ones to shed light on the discrimination suffered by transgendered and transsexual people who need this bill.

As the member for Chicoutimi—Le Fjord and NDP critic for LGBT rights, I would like to sincerely thank the trans committee of the Quebec council of gays and lesbians for this testimony.

I believe this is a heartfelt plea. I am asking parliamentarians from all political parties in the House to keep in mind the importance of advancing the cause of human rights in Canada when voting.

Canadian Human Rights ActPrivate Members Business

April 5th, 2012 / 2:20 p.m.

Conservative

Dean Allison Conservative Niagara West—Glanbrook, ON

Mr. Speaker, I personally believe that the discrimination, persecution or incitement to hatred of any group, based on sex, race, religion, should not be tolerated.

Today we are here to talk about Bill C-279, which proposes to make three changes to the law.

The first would be to add “gender identity” and “gender expression” to the list of prohibited grounds for discrimination in the Canadian Human Rights Act.

Second, it would add “gender identity” and “gender expression” to the definition of identifiable groups to section 318 of the Criminal Code. It would be an offence to advocate or promote genocide, to publicly incite hatred, likely to lead to a breach of peace, or to wilfully promote hatred against groups that are identifiable on the basis of gender identity and gender expression.

Third, it would add “gender identity” and “gender expression” to section 718.2 of the Criminal Code, which would direct a judge to consider increasing the sentence beyond its usual range for an offence that was motivated by bias, prejudice or hate based on gender identity or gender expression.

These three changes are unnecessary.

I will begin with the proposed amendments to the Canadian Human Rights Act. The act already prohibits discrimination on the grounds of sex. This means that the act prohibits hiring decisions based on prejudice against women or men. It prohibits sexual harassment in the workplace. It requires reasonable accommodation for pregnancy. The act protects against these and other kinds of sex discrimination in the federal workplace and elsewhere in federal jurisdiction.

The Canadian Human Rights Act does not require total blindness to the distinction between men and women. Instead, the task of this law is to intervene in situations where people experience certain kinds of discrimination on the grounds of sex.

Canadian society recognizes that there are gender norms. When attitudes and practices involving gender become sex discrimination, the law should and does intervene. However, the law cannot simply abolish gender categories and gender norms in Canadian society. Nor can tribunals and courts be asked to reconstruct and interpret gender norms. That is an unrealistic view of what the legal system is empowered and entrusted to do.

We heard in the course of debate on the previous version of this bill, Bill C-389:

Transsexuals are people whose gender identity differs from their biological or birth sex, and who seek to live permanently as the gender other than their biological sex. Most often transsexuals seek medical interventions such as hormones and surgery to make their bodies congruent with their sense of their genders. A transition process which is known as sex reassignment or gender reassignment is engaged.

In the case of transsexualism, the law has found that gender categories and gender norms cause unfair disadvantages to those people. Transsexuals might not fit social norms due to their unique situation, but as interpreted in numerous decisions, the Canadian Human Rights Act already protects against discrimination on the basis of transsexualism. This is one situation where the law has intervened in order to remedy a form of sex discrimination.

I understand that there is an intention to cast more light on the disadvantages faced by transsexuals, but what Bill C-279 proposes to do goes far beyond that. The bill does not name a particular group of people in order to protect them from a distinctive kind of discrimination. Instead, it proposes two characteristics, “gender identity” and “gender expression”, that everyone has. Everyone has a gender identity and everyone expresses their gender, intentionally or unintentionally, in some way or other.

I would like to repeat that some gender norms may be problematic. Some have been found to be discriminatory and have been prohibited. The Canadian Human Rights Act already protects against sex discrimination. Under this rubric, it also protects against discrimination on the basis of transsexualism. Therefore, it is not clear what problem the proposed amendment is hoping to solve. Again, it is unnecessary and an unpredictable response to very particular problems.

This brings us to the next problem arising from the bill. To the extent they seek to reach beyond transsexualism, the new grounds of gender identity and gender expression are vague.

How would anyone know whether one's expressive act is gender expression if there can be no assumptions about how each gender is expressed? Can people act in any way they choose, so long as they claim to be expressing their conception of their gender? If that is the case, then the ground of gender expression will have no limits and have very broad implications. Or will it be up to courts and tribunals to decide what kinds of characteristics express gender and which do not?

It would also create much uncertainty about the meaning of these new grounds and perhaps increased litigation.

The proposed wording is vague and it makes the proposed amendments to the Canadian Human Rights Act unwise, especially since they are unnecessary to address what seems to be to the core issue, which is discrimination on the basis of transsexualism.

Vagueness has even more serious implications when we turn to the proposed amendments of the Criminal Code.

The proposed amendments to the hate propaganda offences protect new identifiable groups, namely, those identifiable on the basis of gender identity and gender expression. The hate propaganda offences are serious. Convictions can result in sentences of between two and five years. The offences also limit freedom of expression, a core Canadian value, and must clearly be delineated so Canadians will know where the limit is drawn.

Given the stakes involved, it is important to know which groups are identifiable on the basis of gender identity and gender expression. Transsexualism might define an identifiable group but, again, the proposed new grounds go far beyond transsexualism.

Gender expression is expressly problematic. How does a speaker know when a characteristic is one of gender expression. If a speaker says strong words against people with certain behaviours, can that be made into hate propaganda on the basis of gender expression simply if those people claim their behaviour to be the way of expressing their gender identity? We are left in the dark about who the identifiable groups will be. It is especially problematic in these offences, which will criminalize speech without clear notice of what can and cannot be said.

Ultimately, it would be left to the courts to decide which aspects of people's behaviours were expressions of gender and which were not. This is not their role. It would also leave the public unaware of what would be prohibited, as we waited for the courts to reconstruct Canadian gender norms for us.

These same uncertainties attach to the proposed amendment to section 718.2. This section directs a sentence be increased for an offence that was motivated by bias, prejudice or hate based on certain personal characteristics. The list of such characteristics is open-ended and includes, “any other similar factor”. I understand that one purpose of this bill is to make explicit what may already be covered by a bad open-ended phrase. However, by adding “gender identity” and “gender expression”, what is made explicit are very vague terms. This would be counterproductive amendment.

I believe these technical arguments in themselves give just cause to vote against Bill C-279.

However, I would also like to discuss a very real concern that was expressed during debate on an earlier version of this bill from the previous Parliament. In fact, this argument resulted in the previous bill being dubbed the “bathroom bill” in certain quarters.

The fact is that creating a right to gender identity and gender expression would likely result in men who are in gender reassignment therapy having access to girls' bathrooms. As the bill would also give special rights to those who simply consider themselves to be transgendered, the door would be open to sexual predators having a legal defence to charges of being caught in a women's washroom or locker room.

I find this potentially legitimized access for men in girls' bathrooms to be very disconcerting. As sexual predators are statistically almost always men, imagine the trauma that a young girl would face, going into a washroom or a change room at a public pool and finding a man there. It is unconscionable for any legislator, purposefully or just neglectfully, to place her in such a compromising position.

The bill would not address this very real possibility and in itself is reason for me to personally not support it.

The bill is an unfocused and unpredictable response to the very particular challenges that are faced by transsexual persons. The amendments to the Canadian Human Rights Act and the Criminal Code are unnecessary and I will not support the bill.

Canadian Human Rights ActPrivate Members Business

2:25 p.m.

Conservative

The Acting Speaker Conservative Bruce Stanton

The time provided for consideration of private members' business has now expired and the order is dropped to the bottom of the order of precedence on the order paper.

I would like to wish all members of Parliament, the clerks, the pages, the interpreters and all employees of the House a happy Easter, a happy Passover and good break.

Pursuant to order made on Friday, March 9, 2012, the House stands adjourned until Monday, April 23, 2012 at 11 a.m., pursuant to Standing Orders 28(2) and 24(1).

(The House adjourned at 2:30 p.m.)