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Twelve years after it was first introduced to Parliament, the law to add gender identity and gender expression to the Canadian Human Rights Act has finally passed. The final vote in the senate was 67 in favour, 11 against, and 3 abstentions.

The day had started with conservative senators arguing that recognizing the rights of trans people infringed on freedom of speech, freedom of religion, and brought up fears of sexual predators. These statements received applause from Conservatives in attendance.

The inclusion of a new group in the Canadian Human Rights Act and in relevant hate crime sections of the Criminal Code does not improve the condition for those who are discriminated against. I would like to reiterate strongly that our laws, including the Criminal Code, are no place for an awareness campaign to assist in building understanding for those who do not fit into the colloquial “norm.”

This will allow men to go into women’s change rooms and bathrooms across the country.

If a person is unwilling, for religious or cultural reasons, to show a man one’s hair, how are we expected to force such a person to share the most private and intimate of spaces with someone who appears, in all physical and biological ways, to be of the opposite sex? I ask, honourable senators: Is it possible that, in passing this bill, we would be discriminating against our Muslim friends, as well as other groups, and their practice and policy of modesty?

One of those potential consequences, as some witnesses in committee had mentioned, is that Bill C-16 in its current form may compel speech, which goes against a fundamental right that we uphold in Canada.

 

Senator Plett’s motion to add one sentence “For greater certainty” — and if I may read the full sentence:

For greater certainty, nothing in this Act requires the use of a particular word or expression that corresponds to the gender identity or expression of any person.

…which was defeated, would have added language to this bill that would have given assurances of protecting free speech.

To the “compelled speech” argument, a brilliant retort came from senator Lillian Eva Dyck:

Even here, in the chamber, we do not have unlimited freedom of speech. […]

 

As an example, recently when Senator Plett felt or perceived that Senator McPhedran had called him a bigot, he raised a point of privilege and the Speaker ruled in his favour.  […] Senator McPhedran said it was not her intention to offend Senator Plett. So there was a ruling made on the balance between what was said, what was intended and what was perceived. That’s what freedom of speech is all about, and that’s also what harassment is all about. If Senator McPhedran had continued to speak along those lines, then she could have been found guilty of harassment, but she did not do that.

 

How does this relate to Bill C-16 and pronouns? I’ve already outlined that. If I or any other person were to call a trans woman by the pronoun “he,” that trans woman may well be offended. If that trans woman spoke to me and said to me, “Please, I would rather be called ‘she’ than ‘he’,” and I ignored that and continued to call that trans woman “he,” that would be discrimination. She could take this case to a human rights tribunal, and in all likelihood I would be found guilty of harassing her because I called her by the wrong pronoun and had done it willingly and as a way to discredit her, humiliate her or make her feel less than what she was really worth.

The Minister of Justice Jody Wilson-Raybould, who had introduced Bill C-16, came by to sit down in the Senate gallery while we were observing the proceedings. Following these speeches against and in favour the bill came to a vote.

The Speaker asked those in favour to yell “Yea”. So yelled numerous senators. Then he asked those against to yell “Nay”. The nay yells appeared to be louder. My heart stopped. “The yays have it”, declared the Speaker. Two senators stood up to trigger a roll call. The Speaker announced a half hour intermission.

At 3:54 pm, the senate was far fuller than it had been throughout the proceedings. Each senator in favour stood up to have their vote recorded, then the senators opposed, and those abstaining, followed suit. The final vote was 67 in favour, 11 against. Plett was unsurprisingly among the eleven. The gallery cheered and stood up, to the security guard’s dismay, who was trying to get us to be quiet. The senate applauded, looking up at us as they did so.

Afterwards, we headed to Senator Grant Mitchell’s office, the senator who had sponsored the bill. The Minister of Justice joined us. There was a brief chat, then they left, and we took the following photo.

Some of us, myself included, headed to Dunn’s to celebrate, while other advocates headed to Nate’s. News outlets pickled up the story within hours with mostly positive coverage. The response was much more significant than it had been throughout the bill’s life cycle following its introduction. The National Post and the CBC published stories opposing the passage of the bill.

I don’t feel particularly joyful at the news of the bill’s passage. There are benefits to C-16 that will permeate across the country. For instance, when someone in an HR department copies the list of prohibited grounds for discrimination for their own internal policy, it could now include gender identity and expression. Trans employees will benefit from that. When pollsters look to define populations, they might pull from the prohibited grounds list, and trans people will now be counted. Specific hate crime statistics will also be collected now that gender identity or expression is part of the Criminal Code. Individuals challenging institutional discrimination will have another argument to call upon. There’s lots of freebies that comes from the passage of this law, without it ever being used in a human rights case.

This bill would of had a much greater impact had it passed when it was introduced twelve years ago. Perhaps my lack of celebratory feelings is related to thinking of all the people who were harmed while Parliament let these intervening bills die through action and inaction. The bill, though a positive step, has less impact now.

Perhaps my muted response comes from knowing that this law alone won’t alone protect transgender, non-binary and otherwise gender variant individuals. It isn’t laws like this which significantly changes statistics in short order, like these ones I picked for trans youth:

• 40-50% of Ottawa homeless youth are LGBTQ
• 70% of Canadian trans youth reported sexual harassment
• 36% of Canadian trans youth were physically injured or threatened in the past year
• 70% of Canadian trans youth reported discrimination due to gender identity
• 37% of Canadian trans youth attempted suicide
• Only 15% of Canadian trans youth with a family doctor reported feeling “very comfortable” discussing their trans status and trans-specific health-care needs
• Only 10% of Canadian trans youth always felt safe in school washrooms
• Only 5% of Canadian trans youth felt always safe in school change rooms

This is unsurprising given the attitudes of cisgender Canadians:

• 42% to 59% of Canadians would restrict or prohibit washroom transgender individuals from using washrooms
• 29% of Canadians agree that being transgender “is just unnatural”
• 42% of Canadians say that transgender celebrities worsen their opinion of trans people
• 24% of Canadian men are uncomfortable with a transgender person moving next door to them

These numbers are a sobering reminder that legislation represent a small component of a much larger effort. I do want to acknowledge that there’s a lot of positive changes lately though, and I’m pleased.

I also want to recognize former NDP MP Bill Siksay, who first introduced this legislation as a private members bill in 2005, and current NDP MP Randall Garrison who took over the task of introducing it’s successors after Bill Siksay retired from politics. I am likewise thankful to Grant Mitchell the sponsor of the bill in the Senate and Amanda Ryan, Susan Gapka and the many others who tirelessly lobbied for this. This is a victory. This law was needed, and their work has made a difference.

This past month, the National Post published an article in opposition to Bill C-16, the legislation that would add gender identity and gender expression to the Canadian Human Rights Act. It is the eighth such article by the newspaper opposing the anti-discrimination bill for trans, non-binary, and gender diverse individuals in the past year.

In this piece, the newspaper articulated the view that the anti-bullying “Day of Pink” is harmful and that the inclusion of gender identity and expression in the law that prohibits advocating for genocide would curtail freedom of speech. The paper did so despite acknowledging the high bar to charge someone for advocating genocide, recognizing that it “involves an intent to destroy or kill an identifiable group and requires the consent of the provincial attorney-general.” They stated:

With the criminal code, it means the section against hate propaganda — this is the one under which advocating genocide falls — is similarly enlarged to include the tiny percentage of people who don’t have the same gender identity as their biological sex.

 

That means, presumably, that if someone like Eric Brazau were to fixate on the gender-fluid and say negative things about them, he too could be charged with advocating genocide.

 

No wonder Peterson raised the alarm.

 

Defy the stultifying parameters around public discussion that exist in this suffocating country at your peril.

Such arguments blending free speech with violent overtones have not only been promulgated by the national newspaper but also in Parliament.

Senator Don Plett, perhaps the most vocal opponent of Bill C-16, invited Gad Saad to serve as a witness on the Senate committee for the legislation. The Concordia professor had no professional or personal experience with trans or non-binary individuals but regularly made disparaging remarks about them on Twitter and in his YouTube show, The Saad Truth. In the private event organized for him on Parliament Hill afterwards, Gad Saad suggested that including “gender identity” and “gender expression” in the Canadian Human Rights Act was not merely an impediment to free speech, but would lead to the “death of the West.” As he stated in Parliament earlier the same day, the “slippery slope of totalitarian lunacy awaits us.”

On Twitter, the Concordia professor continued to ridicule trans and non-binary people advocating for their rights.

He wasn’t the only witness to blend freedom of speech arguments with suggestions of calamity. University of Toronto professor Jordan Peterson, also invited by Plett, said in his testimony that these rights would infringe freedom of speech and were a “vanguard issue” in an “ideological war” with a “neo-Marxist base“. That these protections would lead to “re-education committees“. That trans advocates were “unforgivable and reprehensible“. That the request for these rights showed “how deeply a culture of victimization has sunk into our society“. Like Gad Saad, Peterson regularly admonished trans and non-binary people on Twitter and YouTube.

Terms like “genocide”, “war”, “murderous ideology”, “re-education”, “death of the West” were being used by Peterson and Saad when discussing the inclusion of “gender expression” and “gender identity” to federal anti-discrimination protections.

Peterson and Saad’s arguments in Parliament largely targeted the rights of non-binary individuals. They were joined by witnesses who took aim at transgender women. Here the rhetoric shifted from language around totalitarianism and atrocities to rape.

Paul Dirks, the pastor behind the “Woman Means Something” campaign, explained that trans women were predators and a threat to women:

But there is one piece of evidence that’s important in this, and that is that there exists amongst trans women certain criminal patterns that do not exist at all amongst women.

In the Okanagan in B.C. recently, in 2017, women were being kicked out of women’s shelters because they objected to having a [trans woman] in their space where they are unclothed. We have all sorts of examples where these predators are getting in.

Dirks stated on his website that being inclusive of trans women was an “erasure of women’s identity and idealogical rape“. Members from the Vancouver Rape Relief and Women’s Shelter asserted that transgender women did not exist but rather were men who took on sexist stereotypes and that “gender expression” included rape. Members from Pour les droits de femmes du Québec stated that transgender women had no place in women’s washrooms, change rooms, sports, prisons, and shelters under implied threats of sexual assault:

With regard to prisons, everyone remembers Colonel Russell Williams, who was found guilty on 92 charges, including murdering two women and numerous sexual assaults. Colonel Williams liked to take pictures of himself in his victims’ underwear after committing his crimes. Why might he not decide that he would be better off in a women’s prison?

The witnesses had deep misconceptions about trans women and non-binary people yet were treated as authorities on the matter in Parliament and given extensive time to air their views. Those misconceptions were then further distributed through outlets such as the CBC. Opponents largely had neither professional nor personal experience with trans people, which is why they spoke to hypotheticals in asserting their opposition whereas proponents spoke to the present and measurable discrimination that trans and gender variant individuals encounter.

As I write this, it’s the day after Peterson’s testimony and Bill C-16 just passed the senate committee. This is the furthest this legislation has gone in the 12 years since former NPD MP Bill Siksay introduced the first such bill and in the 7 years I’ve been following its various incarnations. Every previous iteration – Bill C-392 (2005), Bill C-326/C-494 (2006), Bill C-389 (2009), Bill C-276/C-279 (2011) – was killed. C-16 is now likely to become law by the end of June. A conclusion to this legislative process will hopefully mark the end of these committees, and thus of inviting transphobic bigots from across Canada to spread their harmful misconceptions through Parliament and the media coverage that ensues.

Opponents have used rhetoric around rape, murder, war and genocide when describing their fears of what would happen in a world where trans women such as myself could change after working out at the gym. This isn’t a fringe view: it’s advertised in Parliament and in our national newspapers.That so many influential people equate the simple things I do with such violence is scary. I ground myself in the knowledge that things are the safest they’ve ever been.

Here are some experiences I’ve had:

• I go on a date. While saying goodbye to the date, a man comes up to me, inquires about my gender, and gropes my breasts to find out if I am a man or a woman.
• I go to the gym. After my work out, a patron tells me to get out of the change room.
• I eat in a food court. The table next to me has five older men talking about trans people derisively, with straw-men arguments.
• I go to an outdoor music festival. A woman pulls at my sports bra. A man follows me to inquire why I’m wearing feminine attire.
• I watch a new movie. There’s a tranny joke.
• I go buy clothes. A sales associate follows me around the store after I try on leggings, stops by me, and eyes me up and down giving me a look of disgust.
• I go get my brows done. The aesthetician laughs in my face when I ask for thinner more feminine eyebrows.
• I’m at work. A coworker tries to bond by deriding their ex for being trans. He doesn’t know I’m trans.
• I go to a laser hair removal clinic. The receptionist looks at my file, sees the medications I’m on, and berates me for being on hormone replacement therapy.
• I walk to a coffee shop downtown. On the way a pedestrian yells that I’m a man.
• I walk to the grocery store. A guy at a pub patio along the way mocks me over my breasts to his friends.
• I walk up to a bus stop. A lady waiting for the bus ogles so hard that she nearly falls over when she bends forward to get a better view.
• I take the bus home. A man points at me repeatedly and laughs.
• I buy a coat. The sales associate tells me I’m in the wrong section, the men’s is over there.
• I take a walk. A man passing me mutters that I’m wearing a women’s coat.
• I walk to work. A man loudly asks his friend if I’m a guy or girl. I turn around to see if he’s talking about me, then he promptly yells that I’m a dude.
• I take a cab. The driver solicits me for sex.
• I go to a bar and use the facilities. I overhear a man say that a guy went into the ladies washroom. Leaving the bar, a patron yells at me that I’m a guy.
• I read a national newspaper. There’s an op ed portraying trans rights as a threat to children.
• I update my insurance info. They won’t let me change my gender marker until I have surgery that renders me sterile.

The views that led people to act in the above fashion are widespread. They are so widespread that I’m still afraid when accessing gendered public spaces like change rooms.

It irks me when people claim that these views are silenced because some university declined to give this transphobia a platform or because some trans people protest it.

No. This view is all around us. Trans students at that university are immersed in that view, whether the administration hosts a transphobic speaker or that speaker finds another venue. I don’t buy for one second that free speech is under threat; not when this view is literally shouted from the streets of Ottawa. Not when this view is voiced in change rooms, in washrooms, in clothing stores, in food courts, outside bars, in clinics. Not when it’s advertised on Parliament Hill and in this country’s national and local newspapers, in recital halls, and television programs. That free speech is being exercised all the time with very significant displays.

Don’t conflate particular venues declining to lend their name to these views with being silenced. Don’t mistake trans people protesting this prejudice for a loss of free speech. To the contrary, that’s adding a voice to the mix that wasn’t heard before. But to those whose views monopolized the public sphere, having these new voices gain prominence can feel like a loss. It may be a loss of comfort from having to share space with trans voices, but it is not a loss of free speech.