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Canada: Senate Passes Landmark Transgender Rights Bill

(Sept. 11, 2017) On June 15, 2017, the Transgender Rights Bill C-16 passed the third reading in the Senate of Canada, with a 67-11 vote.  (Phil Heidenreich, Senate Passes Bill C-16 Which Defends Transgender Rights, GLOBAL NEWS (June 16 2017).)  The bill officially became law on June 19, when royal assent to it was granted. (Bill C-16, Parliament of Canada website (June 19, 2017).)  Bill C-16 aims to prevent violence and discrimination against individuals on the basis of their gender identity or their gender expression “within the sphere of federal jurisdiction.”  (Julian Walker Legislative Summary of Bill C-16: An Act to Amend the Canadian Human Rights Act and the Criminal Code, Parliament of Canada website (Oct. 21, 2016).)

According to the Ontario Human Rights Commission (OHRC), gender identity is defined as a person’s “sense of being a woman, a man, both, neither, or anywhere along the gender spectrum.”  The OHRC explains that gender identity can be expressed through “behaviour and outward appearances such as dress, hair, make-up, body language and voice.  A person’s chosen name and pronoun are also common ways of expressing gender.” (Gender Identity and Gender Expression (Brochure), OHCR (last visited Aug. 21, 2017).)

Background

The past few years have led to a better understanding of transgender individuals in Canada. This increase of respect is due to human rights campaigning, activism, education and government lobbying. Canada, however, lacks explicit legal protections for transgender individuals, which makes them the targets of institutionalized and societal discrimination and prejudice.  (Matthew P. Ponsford, The Law, Psychiatry and Pathologization of Gender-Confirming Surgery for Transgender Ontarians, 38 WINDSOR REVIEW OF LEGAL & SOCIAL ISSUES 20, 37 (2017), p. 21.)

In the past, two other, similar bills were presented in Parliament and both died without even coming to a vote. The first was introduced in 2005 and the second, Bill C-279, in 2015; thus, June 15, 2017, represents the end of a decade-long battle for legal protection of transgender persons.  (Julie Moreau, Canadian Lawmakers Pass Bill Extending Transgender Protections, NBC NEWS (June 16, 2017).)

With a view to remedying the lack of a legal framework, Justice Minister Jody Wilson-Raybould introduced Bill C-16 on the International Day Against Homophobia, Transphobia and Biphobia, May 17, 2016. (Susana Mas, Transgender Canadians Should ‘Feel Free and Safe’ to Be Themselves Under New Liberal Bill, CBC NEWS (May 17, 2016).)

Bill C-16

Bill C-16 amends the Canadian Human Rights Act as well as the Criminal Code (Canadian Human Rights Act, R.S.C. (1985), ch. H-6; Criminal Code, R.S.C. (1985), c. C-46 (both JUSTICE LAWS WEBSITE.)  The Canadian Human Rights Act “prohibits discrimination by federally regulated employers or service providers, including federal departments, agencies and Crown corporations, First Nations governments and private, federally regulated companies, such as banks, trucking companies, broadcasters and telecommunications companies.”  (Walker, supra.)

The amending legislation adds gender identity and gender expression to the list of prohibited grounds of discrimination under the Canadian Human Rights Act:

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 or expression, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. (Bill C-16, § 2, amending § 3(1) of the Canadian Human Rights Act.)

By doing so, the Canadian legislation acknowledges their marginalization and the unique social challenges that trans- and gender diverse persons face in their everyday life which is a big step toward, since historically, transgender individuals were “socially erased.” The new law explicitly identifies trans- and gender-diverse persons as an oppressed and vulnerable minority and grants them equality in federally regulated workplaces and services.  (Matthew P. Ponsford, The Law, Psychiatry and Pathologization of Gender-Confirming Surgery for Transgender Ontarians, WINDSOR REVIEW OF LEGAL AND SOCIAL ISSUES 23 (last revised May 10, 2017).)  For example, Bill C-16 could push institutions such as penitentiaries to change their policies on the placement of trans- and gender-diverse inmates in gendered facilities.  (Moreau, supra.)

The amendment of the Criminal Code also identifies trans- and gender-diverse persons as a distinct group. Moreover, when a trans- or gender-diverse person is a victim of a crime, Bill C-16 allows the judge, in his sentencing, to take into consideration whether or not the crime was motivated by hatred against gender diversity or expression, that is, to consider “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, sexual orientation, or gender identity or expression, or on any other similar factor.”  (Bill C-16, § 4, amending § 718.2(2)(I) of the Criminal Code.)

The new legislation, as the above amendments indicate, offers better protections against hate speech, hate propaganda, and hate crimes directed against transgender individuals. In the view of René Basque, President of the Canadian Bar Association, while the bill will not in itself stop the violence against this group of persons,  to  ”[i]t will send an important signal to the transgender community that Canadians are committed to building a safer society for all.” (Letter from René Basque, President of the Canadian Bar Association (CBA),  to the Honourable Bob Runciman, Chair, Standing Senate Committee on Legal and Constitutional Affairs, Senate of Canada, at 2, CBA website (May 10, 2017).)

Reactions

Bill C-16 has been controversial, raising many concerns among its opponents and giving rise to heated debate.  Jordan Peterson, psychology professor at the University of Toronto, was one of the main opponents of the legislation.  Peterson says that gender neutral pronouns are  “constructions of people that have a political ideology.”  (Genders, Rights and Freedom of Speech, The Agenda with Steve Paikin, TVO (Oct. 26, 2016).)   He also believes that the new law will compel the use of gender neutral pronouns in private speech, an argument that the Canadian Bar Association strongly rejected.  (Sarah Reid, Everything You Need to Know About the Transgender Rights Bill, TVO (May 30, 2017); Justin Ling, Canada’s Transgender Rights Bill Could Become Law Before the Summer, Despite Some Controversial Opponents, VICE (May 17 2017).)

Conservative Senator Don Plett was also a strong opponent of Bill C-16.  He argued that “gender expression” is a vague term and that including such a non-“immutable characteristic” as a ground for discrimination could lead to constitutional challenges.  (Reid, supra.)

Finally, some opponents were concerned that Bill C-16 would represent a step backward for the feminist cause. They argued, for example, that it would potentially endanger women by allowing men who identify as women to go into women-only spaces such as bathrooms or shelters.  (John Paul Tasker, Canada Enacts Protections for Transgender Community, CBC NEWS (June 16 2017).) Marni Panas, an outspoken transgender advocate, reacted to these concerns by saying they were mostly the result of “common myths” and “misunderstanding about trans people.” (Moreau, supra.)

However, many reactions to Bill C-16 were positive. Randy Boissonault, special adviser to the Prime Minister, characterized the legislation as “a critical extension of human rights” that “saves lives.”  (Moreau, supra.) The majority of Canadian lawyers and members of the Canadian Bar Association endorsed the legislation, and the 67-11 vote indicates that although the opponents were loud, they were a small minority.  (Reid, supra; Moreau, supra.)

Prepared by Marie-Philippe Lavoie, Law Library Intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.