Category: Human Rights

Bill C-16 was introduced this past Tuesday. The bill is officially known as “An Act to amend the Canadian Human Rights Act and the Criminal Code” and is to include gender identity and gender expression as grounds for explicit protection.

The contents of the bill is almost identical to the failed Bill C-279 of the last parliamentary session, and to the failed Bill C-389 before that. I talked about C-279 here, here, and here. I mentioned C-389 here. All in all, it’s been eleven years since bills like this have been introduced to Parliament.

It’s Different This Time

There are two notable differences about the introduction this time, however. First, this is a government bill. Previous efforts were private members bills brought forth by (now former) NDP MP Bill Siksay and then NDP MP Randall Garrison.

The second notable difference is the nature of the opposition.

A year ago the Conservatives held a majority government. Conservative MPs in the House of Commons were near unanimous in their votes against C-279. Internal documents indicated that the government opposed the bill. The four other parties unanimously supported the bill. MPs belonging to the governing party repeatedly vilified transgender women specifically, suggesting that recognizing their rights to use gendered facilities was to permit sexual predators to prey on children.

Whether or not it is called “the bathroom bill,” it allows for pedophiles to take advantage of legislation that we have in place.

In the Senate, the former president of the Conservative Party drummed up the same bigoted characterization and amended the bill as to explicitly legalize discrimination. Then the 2015 election came killing all unpassed bills including this one. I wrote a blog entry covering the legislation’s demise titled “When The Bigots Won.”

Fast-forward to today, and interim Conservative party leader Rona Ambrose indicated she would vote in support of Bill C-16 despite her previous opposition to C-279.

“I’ll be supporting it,” Ambrose told reporters on Tuesday. “While I know that in the past the courts have ruled that all of those protections do exist in the law, I do think the specific recognition and the codification in law is important. I know that it means a lot.”

Tony Clement, another senior Conservative politician, also reversed his stance to support the legislation. There are other stories of Conservative politicians coming out in support of the bill despite past voting record.

Meanwhile, Don Plett, the Conservative senator who amended C-279 as to make discrimination on the basis of gender identity and expression explicitly legal stated that his views hadn’t changed.

“You know my feeling on transgender rights. They haven’t changed since the last time I spoke about it,” said Plett, barely breaking stride on his way to enter the Senate.

But he also gave himself an out to potentially let the bill through.

“But because it’s now government legislation, obviously a lot of the rules have changed. So, I will make a decision in the coming weeks.”

Given the defeat of the Conservatives in 2015, given that the interim party leader and senior members support the measure, I can’t see the former president of the party undermine efforts by House conservatives to appeal to more people in Canada.

I’m fully confident that this bill will pass.

Very Short History of C-16

Trudeau seems to have been aware and in support of trans issues previous to the election. The party he was leading supported C-279 unanimously. He seemed to understand gender identity as a concept. Speaking of a new rule in 2012 that made air travel more precarious, he stated:

Mr. Speaker, since the election, this government’s lack of tolerance for our minorities has grown. A new rule prohibits airlines from allowing a person to board a plane if their appearance does not match the gender on their identification, unless they have a medical certificate. This is a direct affront to the transsexual and transgendered community, which is outraged by this minister who has introduced discrimination under the guise of security.

It should be noted the said rule was removed as soon as the Liberals took power, to little fanfare. Back to C-16, the first official mention of such a law came ten days after the 42nd Parliament began.

On Nov 14, 2015, the government took the exceptional step of publicly releasing Trudeau’s ministerial mandate letters, in which the prime minister assigns each minister with his priorities.

 

In his letter to Justice Minister Jody Wilson-Raybould, Trudeau listed 15 wide-ranging priorities, the last of which includes “legislation to add gender identity as a prohibited ground for discrimination” under both Canada’s human-rights and hate-speech provisions, which make it a criminal offence to discriminate against listed minorities.

At the time, however, there wasn’t a sense among activists of when Liberals would introduce such legislation. A month later, on December 9th, Randall Garrison brought forth Bill C-204.

Bill C-204 was named “An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression)” and was a copy of C-279 from before the Conservatives stripped protections. Amanda Ryan explained the Bill C-204’s introduction as a means to pressure the government:

Ryan says Garrison is introducing this bill knowing that the Liberal government has promised to present their own trans rights bill, which would take priority over Garrison’s.

 

“His intention is to keep pressure on the government so their bill does not slip down the priority list,” she said.

Things were then silent on the public front. In April 2016, MPs started to disclose in private that the Liberal bill would be introduced this spring and passed later this year.

Last Sunday (May 15, 2016), word came there would be an announcement on Tuesday (May 17) to coincide with the International Day Against Homophobia and Transphobia. The wording of the bill wasn’t yet known, though it was expected to be another iteration of C-279.

On Tuesday, the news came with an official announcement at 10:15 aired on CPAC and a technical briefing at 10:45.

That meeting confirmed that the bill, now known to be C-16, mirrored the clauses in C-279.

Media Reaction

Reaction was prompt, and perhaps signalling a significant change from the environment in which C-279 was introduced, received significant national and international coverage.

In another change of significance, all of this coverage from major news outlets were worded in such a way to suggest bias in support of the legislation, with words such as “safeguard”, “protect” and “rights” in their headlines.

 

Compare that with C-279’s or C-389’s coverage, where journalists used words like “controversial” and the reductive “proposal.” Where journalists propagated the harmful and debunked myth of sexual predators in washrooms by adopting the “bathroom bill” moniker themselves. Where they gave equal weight to the voice of bigots not recognizing the false equivalence.

The tone of coverage completely changed in the media especially towards the end of C-279’s run. The support remains uneven, however. Both of the two national newspapers in Canada continue to release editorials opposing acceptance of trans people with headlines such as “Transgendered advocacy has gone too far” and “Kids pay the price of transgender politics.”

There was something else to be noted in the media attention. This misconception that the bill would change the situation for trans people. Radio Canada framed C-16 as “legislation to guarantee the rights of transgender people across the country” and “ban discrimination against transgender people.”

This simply isn’t true.

What the Bill Does

The bill amends the Canadian Human Rights Act and Criminal Code to include gender identity and expression. As it’s now categorized as a hate crime, police forces will start collecting data on violence on the basis of gender identity or expression. Those discriminated against will have a new avenue of recourse.

What the Bill Doesn’t Do

The bill doesn’t address any of the reasons people are marginalized on the basis of gender identity or expression. It doesn’t change any government policy. It’s wholly reactive, not pro-active.

Absent of any further government action, it leaves the burden of change to those who have the fewest resources to bring it about. Half of trans people in Ontario make less than $15,000 a year.

As for police taking metrics, 20% of trans people have been physically or sexually assaulted for being trans in Ontario while another 34% had been verbally threatened or harassed but not assaulted. Many do not report these assaults to the police. Hardly surprising when 24% reported having been harassed by police. Meanwhile half of homeless youth in Ottawa are LGBTQ, sex work is still effectively illegal in Canada, HIV is effectively criminalized, all issues that are disproportionally relevant to this demographic and to which the police act as agents that remove opportunities for safety and income. The police further enforce existing prejudice by assisting businesses who kick out trans patrons over gender ID matters through affirmations of private property. In this climate, the police stats collecting isn’t very meaningful.

The kind of discrimination that makes people unsafe, whether it’s a doctor refusing to care for the person because they’re trans, or a psychologist with questioning clients that believes trans people can’t be gay, or schools that dead name students, or a movie where dating a woman who is trans is the joke, or a workplace that requires gendered dress codes, or newspapers with editorials that defend reparative therapy and advocate against acceptance of youth, or street harassment, or what have you – these are all firmly left unchallenged in this new regime. After all, these examples I’ve just cited already exist in an environment where such legislation is already on the books. Ontario introduced gender identity and gender expression to its human rights code in 2012. All the perpetrators I’ve cited in these examples are safe from any legal action on grounds of discrimination.

And so I object to assertions that this law will make things safe. It won’t. It’s symbolic, to some extent it’s necessary, but it won’t change discrimination. At least not unto itself.

What It Takes To Bring Change

What it takes is what’s already taken place. Decades of work by an army of people, each building upon the shoulders of those before them, each doing something – however seemingly microscopic to them – to change what they can.

While these issues may seem to have exploded into popular consciousness, it will take decades more by all these people doing these changes to take down these social barriers.

There’s no easy fix.

Except oh maybe $15 minimum wage, actually making sex work legal, decriminalizing HIV, to start.

In The End

I was really disappointed when the bill was announced, I really hoped that the Liberals would have produced a more audacious piece of legislation given their majority and support by the opposition – even without Conservatives.

That wording for the bill, which dates back eleven years, was significant when it was introduced for the environment it was introduced in. Had it passed then, it would of had a real impact on attitudes towards acceptance of those who aren’t cisgender.

Now, however, with the public moving towards that acceptance, this symbolism is getting less and less impactful. Meanwhile, discrimination remains pervasive and easily defensible. I hope we’ll see policy changes in the future to help with that.

Despite my reservations, this is a victory. I am enormously thankful to all those who made it possible.

During Pride week, a beautiful mural was erected to commemorate for the transgender women of colour who had been murdered over the past year. The mural featured the names of the murdered women, among them Sumaya who had been killed in Toronto earlier this year. The artist behind the mural was Kalkidan Assefa, whose website is here.

Trans people in Canada face high rates of violence with 62% reporting experiencing moderate to high levels of transphobia and 26% having been assaulted. These numbers are higher, however, for transgender women, and higher yet for transgender women of colour.

This mural was vandalized this week, with the messages “all lives matter”, “no double standard” and “you’ve been warned.”

The vandalized mural was subsequently painted over with the message “If all lives matter then why are the stories of trans women of colour continually erased?” along with “black lives matter.” This too was defaced within a day.

This is unfortunately unsurprising for Ottawa. The Sandra Bland mural that had gone up this past summer in honour of the American black woman who died while under police custody had also been defaced within days of going up. This mural was painted by Kalkidan Assefa and Allan André. Her name was covered up with “All Lives Matter”, likely to repudiate the “Black Lives Matter” movement that was active in the United-States despite having no explicit reference to the latter in this mural.

Also in Ottawa this year, posters that were affirming women’s rights to live free of sexual harassment were defaced with messages like “sexism”, “gender profiling” and “man haters.”

This backlash goes beyond posters. When an anti-racism campaign at the University of Ottawa sought to provide a space for people of colour to discuss their experiences, white people in this city deemed it so insupportable as to raise a big enough fuss to receive national attention. Those who experience racism in this city were thus denied a space to talk about racism, because white people felt they were excluded.

When a group is habituated to having all voices and spaces catering to them, they regard that as normal, and any challenge to that hegemony as unfairness and being oppressed. They’ve never had the perspective of living in a world where spaces are regularly inaccessible and the voices don’t represent them, which is what minorities in this city have been habituated to.

And so when there’s a little challenge to the order of things, and a minority is granted a small public or private space to talk about their issues, like a support group or little corner in the Village, members of the majority will misinterpret that as being discriminated against and work to shut these few voices down. In this city, over and over these efforts to silence those few voices have found success.

Ottawa was already the city that spits on trans people, throws stuff at them, calls them faggots and freaks, has politicians work against them, and beats them up. Now it’s the city that defaces murals honouring those that were murdered with “you’ve been warned.”

Ottawa is many things, but a place that is safe for trans people and especially a trans women of colour it is not.

Note: I’ve replaced slurs for trans women in the quotes below with the appropriate terms. These substitutions are identified with brackets.

The bill informally known as the “trans rights bill” is dead.

Bill C-279 was introduced in September 2011 as An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression.) It died in August 2015 when the parliamentary session came to a close before the bill could reach royal assent. I’ve already discussed the bill’s contents, origin and much of its progress through Parliament in a previous blog entry.

This outcome was not a surprise. Efforts to introduce these protections had been going on since 2005 with C-392 (38th Parliament), C-326 (39th Parliament) and C-389 (40th Parliament.) None had passed. The Conservatives opposed Bill C-279 and the party had a majority in both the House of Commons and Senate.

Three years after this latest bill was introduced it was recognized with fair certainty that this effort would also fail. As the MP who introduced the bill surmised in June 2014:

“It’s dead,” Randall Garrison, the Member of Parliament championing the bill, told me. “I’ve given up hope.”

The Conservatives didn’t merely oppose the bill. They fundamentally supported the discrimination that this bill was seeking to address. Over the course of Bill C-279’s journey through Parliament, the party would establish itself as the largest openly transphobic organization in Canada.

The Conservative’s actions would be correctly identified as “discrimination” and “transphobia” by mainstream press like Maclean’s.

The Conservatives would deliberately stoke public fear around transgender women by portraying their use of innocuous activities, such as using washrooms, as a threat to (presumably cisgender) women and children.

This fear mongering was done to the detriment of transgender people, 97% of whom had already avoided public spaces out of fear, including 57% who had avoided washrooms. The Conservatives would also repeatedly claim that recognizing the rights of trans people would enable sexual assaults despite being informed in both the House of Commons and Senate that this was factually false. Not a single jurisdiction in Canada or the US that had passed similar anti-discrimination laws had experienced a rise in sexual assault as a result.

Conservative MP Rob Anders’ statements in Parliament were emblematic of these attitudes. Following a petition he wrote up for his constituents to sign, he stated:

Mr. Speaker, I stand today to present, on behalf of thousands of people who sent these to my office, petitions in opposition to Bill C-279, otherwise known as “the bathroom bill”, that would give [transgender women] access to women’s public washroom facilities. These constituents feel that it is the duty of the House of Commons to protect and safeguard our children from any exposure and harm that would come from giving a [woman] access to women’s public washroom facilities. I present thousands of signatures on behalf of the riding in Calgary West, and I know that there are many others that have gone to other members in this place.

Former president of the Conservative Party Senator Plett, appointed to the senate by the current Conservative Prime Minister Stephen Harper, would make the link with pedophiles:

Whether or not it is called “the bathroom bill,” it allows for pedophiles to take advantage of legislation that we have in place.

He would also argue that cisgender people were having their rights infringed by allowing trans people to use the same facilities:

I want you to tell me, Senator Mitchell, when you say that 0.3 per cent of society is trans, how their rights can trump the rights of my five-year-old granddaughter walking into a change room, a [transgender woman] walking into a bathroom.

Conservative MP Dean Allison suggested that transgender people were getting “special rights” if they were allowed to use the correct washroom and repeated the myth that it would enable sexual assault:

The fact is that creating a right to gender identity and gender expression would likely result in [transgender girls] 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.

While the rhetoric was discriminatory, the Conservatives did not regard it as such. Senator Don Plett took offense to the suggestion that his stance was discriminatory:

Mr. Dyck, you have in your testimony used a comparison of trans people not being allowed in certain areas. You’ve used a comparison of Blacks not having been able to be allowed. Mr. Garrison used the same analogy when I asked him about my five- or six-year-old granddaughter not wanting to go into the bathroom or a change room with a [transgender woman]. He inferred that it was the same as my granddaughter not wanting to go into the bathroom with an Asian or a Jew. I found that tremendously offensive. I do not believe there is any comparison, when we talk about colour or race, to somebody who is [transgender].

Beyond the transphobic rhetoric, the Conservative’s choice of witnesses in committee was further evidence that the party was more vested in drumming up irrational fears of trans people than in discussing the issues they faced. Issues like:

• 50% of trans people made less than $15,000 a year.
• 87% of trans students felt unsafe in places at school.
• 39% of trans people had been turned down a job for being trans.
• 34% of trans people had been subject to verbal threats or harassment.
• 20% of trans people had been assaulted due to their gender identity/expression.
• The governments of Quebec, Prince Edward Island, Saskatchewan, Yukon and the Northwest Territories required trans people to be sterilized in order to amend documents to reflect their gender.

The Conservatives did not bring on a single transgender person or expert familiar with transgender issues to serve as a witness on this bill about transgender discrimination. They instead brought on the likes of REAL Women of Canada who had never worked with trans people and whose only link to the matter was their established prejudice towards trans people. REAL Women of Canada objected to trans people being accepted at all as evidenced by their press release:

Please ASAP fax, email or phone your MP to ask that he or she oppose Bill C-279, with or without amendments. The major effect of this bill is that transgendered, transsexual and sexually confused individuals will be given full protection re employment, services, housing, etc in public institutions under federal jurisdiction. These behaviors will be “normalized”, accepted and protected.

Meanwhile, on the legislative front, protections for gender expression were stripped from the bill in exchange for a chance at a modicum of support from the Conservatives. That was half the bill. As NDP MP Randall Garrison explained in February 2013:

We need the compromise amendments in order to hang on to the support of the 15 Conservatives who voted in favour at 2nd reading and then the bill will pass. We are hopeful he will allow them.

Then in February 2015 the Conservatives amended Bill C-279 to make discrimination against transgender people legal. The Toronto Star quoted Liberal senator Grant Mitchell in an article entitled “Trans rights bill amendment would bar trans people from public washrooms“:

“The very act that is designed to prohibit discrimination is being amended to allow discrimination,” he said during the meeting.

The Conservatives justified their actions asserting that transgender women were a threat to vulnerable persons:

“This act will no longer allow [transgender women] to identify as female and gain access to vulnerable persons,” he said during the meeting.

This is the eviscerated bill that would die in August 2015.

The Conservatives got their way. They used a lot of vitriolic rhetoric and fear mongering to get there. And in doing so, the Conservative Party of Canada would establish themselves as the largest openly transphobic organization in this country.

Many Conservatives seemed unable to accept that they had been prejudicial to trans people. Senator Plett who rewrote C-279 to legalize discrimination had this to say when he was called transphobic:

I am offended that Ms. Page has implied that I am “transphobic”, and I am appalled that she would suggest my amendment could have anything to do with violence against the community.

Similarly, Conservative MP Joan Crockatt who voted against the trans rights bill didn’t see any contradiction with wanting to march in the Calgary Pride parade. An event that is for, among other things, supporting trans people. The Conservative Party wanted to march in Vancouver Pride, and saw no issue with doctoring the Trans Equality Now pledge that all participating political parties had to sign as to remove the actual pledge for trans equality. They did not end up marching.

As a final note, it was suggested that the Conservatives purposefully stalled the bill as to kill it. NDP MP Randall Garrison expressed that this might be their intent in an interview he gave in November 2014:

“I believe their intention is to kill the bill by delay,” Mr. Garrison told The Globe and Mail.

It certainly seems plausible. The bill’s lack of progress was an anomaly. 43 private members bills were passed in this parliamentary session. Of those, 39 were introduced after Bill C-279. The extent to which this was delayed was so notable that it was reported on by newspapers at the time, including The Globe & Mail and The Ottawa Citizen.

During the vote in the House of Commons, every single one of the 150 NDP, Liberal, Bloc, or Green Party MPs who voted did so in support of the bill. Meanwhile, 132 Conservative MPs voted against it. So it certainly stands to reason that this bill would have passed had the Conservatives not been transphobic.

On February 25th, I headed to Parliament to attend a Senate committee meeting on the fate of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity.)

This was my third time at Parliament to observe the progress of this bill through the legislative process. I was in the House of Commons when it passed Third Reading in 2013 and in the Senate last fall for hearings.

When I walked into the conference room, things weren’t looking good for the bill. It was getting dangerously close to election time. After four years of proceedings, including a 20 month delay between passing Third Reading in the House of Commons and a first look in the Senate, the election was now only a year away. Any bill that hadn’t yet become law by that time would be killed.

Meanwhile, any amendment would throw the bill back to the House of Commons. If it landed there, it was unlikely to pass in time for the election.

However, the introduction of an amendment became inevitable. During the time that Bill C-279 languished in the Senate, Bill C-13 was introduced, passed both the House of Commons and Senate and received royal assent. Bill C-13 added sex, age and disability into the hate crime provisions of the Criminal Code. Bill C-279 added gender identity. If C-279 passed without amendment, it would erase the protections C-13 had introduced. So an amendment was now necessary.

The meeting started and as it progressed the addition of two amendments was confirmed. This included the expected amendment to be compatible with C-13. The majority Conservative government had won – the bill they had opposed would all but certainly die on the floor. There was only a glimmer of hope that it could pass.

Then something else, wholly unexpected happened. The Conservatives, through the former president of the Conservative Party Senator Don Plett, introduced a third amendment that would turn Bill C-279 from legislation to prohibit discrimination into one that would support it. It added the following exception to the Human Rights Act:

15. (1) It is not a discriminatory practice if

(f.1) in the circumstances described in section 5 or 6 in respect of any service, facility, accommodation or premises that is restricted to one sex only — such as a correctional facility, crisis counselling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room — the practice is undertaken for the purpose of protecting individuals in a vulnerable situation;

The intended effect of the amendment as judged from Don Plett’s previous comments in the Senate was to protect discrimination under law. I replaced slurs for trans women in the following quote from Senator Plett with [trans woman]:

I want you to tell me, Senator Mitchell, when you say that 0.3 per cent of society is trans, how their rights can trump the rights of my five-year-old granddaughter walking into a change room, a [trans woman] walking into a bathroom … How can this 0.3 per cent of society trump the rights of my grandchildren, my granddaughters?

And later Senator Plett added:

Mr. Dyck, you have in your testimony used a comparison of trans people not being allowed in certain areas. You’ve used a comparison of Blacks not having been able to be allowed. Mr. Garrison used the same analogy when I asked him about my five- or six-year-old granddaughter not wanting to go into the bathroom or a change room with a [trans woman]. He inferred that it was the same as my granddaughter not wanting to go into the bathroom with an Asian or a Jew. I found that tremendously offensive. I do not believe there is any comparison, when we talk about colour or race, to somebody who is biologically male or female.

The bill had gone from prohibiting bans on trans women seeking to use the women’s washrooms or men seeking to use the men’s washroom to supporting these bans. Likewise for denying abused women access to women’s shelters, sending individuals to the wrong correctional facilities, and denial of service to any gendered service, facility, accommodation or premises. Trans women were portrayed as a threat to cisgender women and children.

The vote for the contentious amendment passed, with unanimous support from Conservative senators, to the incredulity of the bill’s supporters. Members of Gender Mosaic, who had lobbied for this bill walked out. I followed.

Whatever glimmer of hope I had for this bill faded at that time. The Conservatives had opposed the bill from the get-go and the supporters would now have to oppose its newest form too:

“We still want to support the bill, because it’s important for the trans community, but if it’s going to have the amendment in it that restricts our use of washrooms and public facilities… no,” said Amanda Ryan from the advocacy group Gender Mosaic.

“It’s a bad bill with that amendment in it. We want to fight as hard as we can to have that removed,” she told CBC News Network’s Power & Politics on Thursday.

The implications of the new amendments were quickly picked up by the biggest media outlets, to my surprise. The Toronto Star reported “Trans rights bill amendment would bar trans people from public washrooms,” while Maclean’s opined “How discrimination got in the way of the federal transgender rights bill.” Even the right-wing Toronto Sun ran the story “Senate guts transgender rights bill” that took a supportive angle. Though as expected, the readership for all these publications overwhelmingly expressed vitriolic views towards trans people invoking tropes of “mental disorder”, “threat”, “special rights”, etc.

How things had changed. Just a year ago those headlines might have read “Trans rights bill amended” or something equally devoid of critical analysis. But how had an anti-discrimination bill come to support the very discrimination it had been designed to oppose?

History

Predecessors to C-279 had been introduced as private member’s bills in 2005, 2006, and 2009 by NDP MP Bill Siksay.

The first two attempts did not get off the ground, but the third had passed Third Reading only to die in the Senate when the 2011 election was called. It was reintroduced by NDP MP Randall Garrison in 2011 following Bill Siksay’s retirement.

The Original Bill

The bill as it was introduced in 2011 would amend the Human Rights Act to include gender identity and gender expression. Section 2 of the Canadian Human Rights Act would be replaced with the following:

Purpose

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity, gender expression, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

The bill would also amend the Criminal Code to include gender identity and gender expression as prohibited grounds for discrimination. Subsection 3(1) of the Act would be replaced with the following:

 Prohibited grounds of discrimination

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity, gender expression, marital status, family status, disability and conviction for which a pardon has been granted.

That was it – four words repeated in two sections.

Journey Through the House of Commons

It was after its introduction in the House of Commons that the first instances of of the kind of language that Senator Plett used would surface.

Conservative members would openly dub the bill “The Bathroom Bill” in reference to their strategy to drive support: focus on trans women and go into scare tactics about their day-to-day activities such as using washrooms. In this case, by portraying them as sexual deviants who were a threat to presumably cisgender women and children. One Conservative MP, Rob Anders, had started a petition which was available on his website in 2012:

Other Conservative MPs would use a slightly different approach where it was alleged that trans women were indistinguishable from sexual predators. As MP Dean Allison stated in the House of Commons:

I find this potentially legitimized access for [trans girl] 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 [trans girl] there. It is unconscionable for any legislator, purposefully or just neglectfully, to place her in such a compromising position.

Conservative MP David Anderson wondered:

The first question to the member opposite is this: does he actually believe that there is no one who will try to abuse the situation that would be created by his deliberately vague legislative agenda?

The fear mongering around washrooms was rooted in prejudice but was also a distraction from talking about the real reasons behind this bill’s introduction. There was denied access to education, work, medical care and government recognition of identity. Safety in public venues was a big issue. The environment in Canada was so hostile that 77% of trans Ontarians had “seriously considered suicide” and 43% had attempted suicide. As for washrooms, 57% of trans Ontarians avoided public washrooms “because of a fear of being harassed, being read as trans, or being outed.” Provinces in Canada and the federal government were still requiring trans people to undergo forced sterilizations, a practice condemned by the World Health Organization. Unemployment for trans people in Ontario was at 20%, double what it was for cisgender people. Conservatives did not wish to discuss any of that, or address any of that, it was about appealing to the bigots.

The Conservatives would also key in on protections on the basis of gender expression, the lack of definition for gender identity, and opposition to expanding existing laws. Conservative MP Robert Goguen wondered out loud:

If this ground were to be added to the Canadian Human Rights Act, what sorts of new complaints of discrimination will be brought before the Canadian Human Rights Commission and Tribunal? How will employers know what kinds of workplace behaviour and expression would be prohibited? The answers to these questions are not clear to me and they are questions that we should carefully consider.

In an effort to get Conservative support, gender expression was taken out and a definition for gender identity was introduced. Those two were big blows for the usefulness of the bill. Removing gender expression eliminated protections for a whole swath of people who ran afoul of gender norms or did not identify with a binary gender identity. They would not necessarily be covered under a gender identity clause.

Meanwhile a definition for gender identity was being required where none had existed for other categories such as race and disability. This would have the intended effect of further constricting the applicability of the law. The bill had been eviscerated but gender identity remained, and given the violence faced by trans people throughout Canada, I thought it could be better than no law at all.

With modifications the bill passed but just barely with 149 votes in favour and 137 against. Unsurprisingly, the opposition came entirely and only from the Conservatives: 136 of those 137 votes against were from the Conservative Party, with the remaining opponent being a former (and soon to be reinstated) Conservative party member. The other parties were all unanimous in their support. The tiny fraction of Conservatives who voted in favour of the bill (12%) was just enough to make the bill pass.

By this point it was only two years after the 2011 election. There was plenty of time left to pass through the Senate and become law. I was optimistic.

The Senate

The bill would languish for a year and a half in the Senate with no action. Finally, there were hearings in October 2014. I documented my experiences on this blog.

Conservatives would again focus on making the case for persecuting trans women. During one of the hearings, Senator Plett read a letter out loud:

For this last one, I will read a letter — and I have received many — before I ask my question:

Dear Mr. Plett,

As a father and a care-giver for children, as well as my 84-year-old mother with dementia, I thank you for fighting to keep washrooms a place where we do not fear the awkwardness of sharing with the opposite gender.

It goes on to say:

My wife grimaces at the thought of trying to help our handicapped daughter or our mother in anything but a female-only washroom.

May God grant you wisdom.

It is signed ”Carl.”

Now he is not suggesting that his wife is afraid of people. There’s an awkwardness. I’m not suggesting my granddaughter is afraid of these people. There’s an awkwardness.

Do you not believe, Mr. Dyck, that these people also have the right to their own privacy at all costs? Apparently 0.3 per cent of the people in our country are trans. Are we not infringing and trumping somebody else’s rights by giving trans people the right to go into these areas?

It was a continuation of this distraction to avoid talking about the discrimination that people faced because of their gender identity. The Conservatives were in the territory now of alleging that not discriminating against this group of people would itself constitute an infringement of rights.

It was with this history then that this amendment was introduced. As Senator Plett stated in his speech accompanying the amendment:

This amendment will protect those operating sex-specific facilities in federal jurisdiction for example, bathrooms, military base change rooms and shower rooms, and women’s shelters on first nations reserves if they decide not to allow for example a [trans woman] self-identifying as female into a sex-specific facility for the purpose of protecting vulnerable women.

By putting in an exception in which a person discriminated against on the basis of their gender identity would explicitly be denied a legal recourse because the discrimination was gender related made the bill not just useless but actively harmful. Living in a country absent of an anti-discrimination law would be better than living in one where the law explicitly permitted and supported discrimination.

The Future

The bill will now be debated in the Senate and sent back to the House of Commons. If the bill passes as-is, discrimination will be legalized.

Realistically, the passage of the bill in its original form would not have had an immediate impact on the day-to-day activities of those who live with the effects of discrimination. Most obstacles, such as health care and education, exist at the provincial level. For Ontarians, Toby’s Law passed in 2012, brought the changes originally proposed by Bill C-279 including gender expression into provincial legislation. With the passage of something like C-279 on the federal level, I’d imagine you would have seen cases to address the current passport requirements from mandating compulsory sterilization and two genders to something like Australia’s system, which only requires a letter from a doctor and offers a genderless option. It might also have helped bring in new policies for the correctional system as well as make government-funded services accessible, etc. Those would have been legal cases years down the road.

The hate crime provisions, meanwhile, would not have contributed to a better environment. It would have done nothing towards addressing the discriminatory policies embedded in institutions. Arguably the bulk of the discrimination faced by people. Nor would it have prevented the perpetrators of assault from engaging in these attacks as assault is already illegal. It would have meant that police forces would have recorded instances of transphobic violence that were reported.

Laws don’t do much to address all the tiny manifestations of discrimination or their staggering cumulative impact. When opportunities are systemically denied due to discrimination, then it’s not just laws like what C-279 proposed that come into play, but Canada’s repressive laws against sex workers and toxic attitudes towards the poor or those without post-secondary education. It’s also the hierarchies of administrators and policy makers unwilling to introduce change that would address obstacles disproportionately experienced by trans people. Bill C-279 was never going to fix all those things but act more as a symbol for where we want to be.

Given the supportive reaction to this bill’s outcome, however, a future where violence against non-cis people isn’t regarded as normal might not be as out of reach as I once imagined.

It’s been almost two years since I made the following comment:

I’m currently spending lots of my time questioning how I see myself, in particular in relation to my body. I identify as male, that lines up with my sex, I use male pronouns, and have a mostly masculine gender expression. I don’t expect that to change. Nevertheless, there are parts of me that really don’t jive with that. So I’m exploring.

If I divulged that on this blog, it means that I had been thinking something for a while and I thought it might go somewhere. Of the three main digital platforms I write about myself in, this blog is the most sanitized. Prospective employers read this, for instance, so anything too personal is usually omitted. For me to then talk about gender incongruity was a big step.

A little while I made that first comment above, I informed you that I was pursuing hormone replacement therapy. Then that my name was now Maëlys and that my pronouns were she/her. I later disclosed that I was self-administering hormone replacement therapy, frustrated of having waited on legitimate channels for a year to no avail.

I documented by evolution in 2013 with the following explicit selfie essay:

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That I’m topless in most of these has to do with my never having been comfortable with my body before this point and finally embracing it. Part of that had to do with my body-image issues around weight, but also the dysphoria I hadn’t been aware that I was carrying until it started to dissolve with transition.

Through this two-year stretch I legally changed my name, changed my sex marker on my driver’s license and health card (still waiting for those in the mail), moved twice, dropped out of school, quit a suffocating job and went to work for a start-up, came out to my immediate family, my friends, and to work. I froze my sperm. I nuked my Facebook and Tumblr profiles. I went low-contact with my parents and as it stands they do not know where I live.

I eventually started hormone-replacement therapy. It’s been five months now and there’s been noticeable changes. Breast growth – I’m perhaps an A now. My hair isn’t greasy in the morning anymore. I’m no longer producing semen. I’m still exclusively read as male in public, but my comfort with my body has grown to heights I never thought were possible.

The last two years in particular have opened my eyes. I thought I understood what transphobia looked like. I went to a trans march three years before I came out. As it turns out, I had no idea. It wasn’t these overt display of hostilities, so much as the constant grinding away of people by those with power over them. I became interested in communicating part of those difficulties to the sexist/transphobic/homophobic eighteen year old me. I wrote a few pieces.

I also made the comic below. It doesn’t speak to the institutional difficulties, because I’ve been lucky. My friends have dealt with schools refusing to change their name, causing them to be outed to their class and not wanting to be there. They’ve dealt with provinces that said they couldn’t change their ID without undergoing surgery – even if there is no medical need for that surgery and they don’t want it. Not being able to change their ID means that they’re outed every time they show it. That makes getting jobs that deal with vulnerable peoples, which is what they went to school for, impossible. Being outed still means being treated very poorly in so many fields. There are so many stories of them turning to higher ups in each of these institutions for assistance, only to be met with resistance and things not changing.

Anyways here’s that comic, my latest attempt to communicate my thoughts on tranphobia: