February 7, 2011 (40th Parliament, 3rd Session)


Bill Siksay

New Democratic Party

Mr. Bill Siksay (Burnaby—Douglas, NDP)

moved that Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the third time and passed.
Mr. Speaker, I am pleased to rise today to start and later finish the third reading debate on Bill C-389, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression). I am pleased that the bill continues to make progress here in the House.
The bill would add gender identity and gender expression to the list of prohibited grounds of discrimination in the Canadian Human Rights Act, providing explicit protection for transsexual and transgender Canadians. It would also add gender identity and gender expression to the Criminal Code sections dealing with hate speech and sentencing for crimes where hate was a motivating factor.
The bill arose from in-person consultations with members of the transgender and transsexual communities in Ottawa, Toronto and Vancouver, and with many transfolks online in communities all across Canada. It is routed in their hope of full and equal citizenship and their experience, often daily, of discrimination, prejudice, misunderstanding and violence.
It is my hope that with this bill this House and Canadian society will take a stand against transphobia and for the full equality of transCanadians.
Back on November 20, Canadians and people around the world marked Transgender Day of Remembrance. We remembered victims of transphobic murder and violence. Here in Ottawa, there was a march that started at the Ottawa police headquarters with a flag-raising ceremony supported by the Ottawa Police Service and proceeded to Parliament Hill for an historic rally for transrights and in support of Bill C-389.
I want to point out that this is not a bid for special rights but for equal rights for a very marginalized community in Canada. At earlier stages of the debate and in committee, the key concerns raised were about the need to define gender identity and gender expression and the question of redundancy.
On the matter of the definition, the Canadian Human Rights Act does not define each of the prohibited grounds of discrimination that it contains. This is intentional. It encourages living definitions, grounds that are defined by common usage, experience, jurisprudence, tribunal decisions and science. In keeping with that feature of the act, there is no definition of gender identity and gender expression in this bill. I hasten to point out that gender identity and gender expression are not new terms or new ideas. They have been in use for many years.
Also, while there have been successful human rights complaints launched by transpeople using the current law's provisions on “sex” and sometimes “disability”, we should never forget the fact that successful challenges to discrimination have been made by transfolks using current law, including an explicit reference to gender identity and gender expression, which is still important. It is important for absolute clarity. Transpeople should not have to think their way into protection using other categories originally intended to cover other groups in our society.
It is also important that a group that is marginalized in our society and that suffers significant discrimination and prejudice actually see themselves in the law, and that those who would discriminate against them know, beyond a shadow of a doubt, that their actions are not acceptable.
It is also important that the Canadian Human Rights Commission has an explicit educational mandate on issues related to the experience of transsexual and transgender Canadians.
There is a helpful document on both the issue of the definition and the need for explicit reference in law: the Yogyakarta Principles: The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.
The Yogyakarta Principles were developed by the International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations. They were adopted by a distinguished group of 29 human rights experts from 25 countries in November 2006. Included in that group of experts were: a former United Nations high commissioner for human rights, Mary Robinson; eight UN rapporteurs on human rights in specific countries or specific human rights related issues; two members of the UN human rights committee; the former chair of the UN committee on the elimination of discrimination against women; and one member of the UN committee on the rights of the child.
How did this expert panel define gender identity and gender expression? It said:
...each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
For the record, that is a very formal definition. A more informal one is that gender identity is an individual's self-conception as male or female or both or neither, as distinguished from one's birth-assigned sex. Gender expression refers to how a person's gender identity is communicated to others through emphasizing, de-emphasizing or changing behaviour, dress, speech and/or mannerism.
The Yogyakarta Principles have been used in many different settings. They have been cited favourably by courts in India and Nepal; the UN committee on economic, social and cultural rights; by the UN High Commissioner for Refugees in a guidance note; and by the UN High Commissioner for Human Rights, Navanethem Pillay, on a number of occasions.
During the 63rd session of the United Nations General Assembly in December 2008, Ms. Pillay said:
No human being should be denied their human rights simply because of their perceived sexual orientation or gender identity. No human being should be subject to discrimination, violence, criminal sanctions or abuse simply because of their perceived sexual orientation or gender identity....
This past September, Ms. Pillay said:
Also of relevance, we have the Yogyakarta Principles.... These principles, which were developed by experts, offer additional guidance on the obligations of States under existing international legal instruments and also contain useful recommendations for implementation at the national level.
The definition provided by the Yogyakarta Principles, as well as Yogyakarta Principle 2, have also been part of the United Nations universal periodic review human rights process.
The universal periodic review, or UPR, is a unique process that h involves the review of the human rights' records of all 192 UN member states once every four years. The UPR is a state-driven process under the auspices of the Human Rights Council, which provides the opportunity for each state to declare what actions it has taken to improve the human rights situations in its country and to fulfill its human rights obligations.
As part of the UPR process last year, Canada accepted a recommendation from the Netherlands to apply the Yogyakarta Principles as a guide to assist in future policy developments. Principle 2 explicitly calls on states to include gender identity within non-discrimination legislation. Bill C-389, which we are debating today, would provide Canada and our government the opportunity to fulfill the commitment made to this process.
There are also critics of the bill and I want to deal with some of the issues they have raised. Some critics base their concerns on a larger issue that questions the current framework of human rights law in Canada. I recognize that this is an issue in some quarters and some people believe we should review how we deal with human rights law in Canada. I personally do not share this concern but I do recognize that this is a serious argument to be debated.
I would say to proponents of this argument that, with great respect, this is not the time or place to make that stand. We are discussing including a group of citizens into our current human rights law framework. This is a group of citizens who, without doubt, today face serious discrimination and prejudice.
The approach of this bill is clearly in line with the current structure of human rights law. I would encourage those who take this position to make their arguments about the larger system, bring on the debate on that system, but, the meantime, we must not make transpeople wait. We must not make the equality of transCanadians the line in the sand in that other debate.
Another group of critics focus on one issue, the issue of public bathrooms. I will state clearly and emphatically that nothing in this bill would allow inappropriate conduct in public washrooms. It would not change criminal and other sanctions that exist for assault, sexual assault, pedophilia, indecency, harassment, exhibitionism or voyeurism. For example, peeping Toms or men disguised as women who enter a women's washroom to harass or assault women or girls would still be subject to criminal charges. This bill does nothing to change the sanctions against such inappropriate behaviour.
Raising this issue in the way it has been raised is purely and simply alarmist. It implies, too, that transpeople are somehow criminal by nature, an idea that is patently false.
However, this matter is hinted at, in perhaps a more subtle criticism of the bill, that it would somehow lead to “unintended consequences”.
The reality is that today we all share public washrooms with transsexual and transgender people and that we always have. As is appropriate, most of us never consider the gender of a person using a washroom when we do. We never know if we are sharing such a facility with a transperson. There is no reason for this to be or become a concern. Washrooms are intended for a specific purpose and when used for that purpose there is no problem. Jurisdictions that have implemented this change to their human rights law have seen no increase in crimes committed in public washrooms or gendered spaces as a result.
In reality, it is transpeople who face serious problems in public washrooms. They are the ones who have been assaulted, insulted and denied access. This is the actual problem and it is a serious problem that should demand our attention. Transgender and transsexual people should be able to go about the activities of daily living without fear or discrimination.
There is great support for this bill here in Canada. There is support in all parties represented here in the House, and that support is greatly appreciated. Many other support the bill as well, including: the Green Party of Canada, the City Council of Vancouver, the United Church of Canada, the Canadian Bar Association, the Canadian Professional Association for Transgender Health, human rights commissions, the Canadian Federation of Students, Egale Canada, ARC International, Amnesty International, the Rainbow Health Network, le Association des transexuels et transexuelles du Québec, Nova Scotia Rainbow Action Project, project Jer's Vision and the Trans Alliance Society. There is also very strong support in the trade union movement, including, among others, CUPEs Pink Triangle Committee, PSAC Equal Opportunities Committee and the Canadian Labour Congress itself.
I want to thank many people for their work on this project. I want to recognize four people in particular, which I realize is often problematic, but I want to thank Denise Jessica Freedman, who is a social work intern from Carleton University and works in my office. She has taught me a lot about the situation of transgender and transsexual people in Canada and, in particular, the experience of the transsexual community.
I also want to thank Matt McLauchlin and Susan Gapka, who are co-chairs of the NDPs' LGBT commission. I also want to thank my legislative assistant, Sonja van Dien, for her work.
In conclusion, I want to paraphrase a statement from the Canadian Labour Congress and an earlier work by the Canadian Auto Workers Union in its handbook called “To our allies:”, a handbook on LGBT rights and how people can work in support and solidarity of those rights:
Until we’re considered equal, and not simply ‘tolerated’.
Until our youth aren’t forced to leave home for the streets.
Until our partners are welcome at all family, social and workplace events.
Until the police are there to protect us not harass us.
Until sex trade workers are not seen as criminals.
Until our children see our families reflected in school curriculum and story books.
Until our differences and our cultures are celebrated not denied.
Until it’s safe to come out at work.
Until it’s safe to come out at school.
Until hospitals, banks, travel agents, and insurance companies see us as people not problems or profits.
Until we’re not stereotyped into certain jobs or denied others.
Until parents aren’t freaked out by having lesbian, gay, bisexual or transgender children.
Until we don’t have to justify, explain, educate and expose our private lives.
Until harassment at work stops.
Until our streets are safe for lesbian, gay, bisexual and trans people.
For our Allies 31
Until religions open their doors to our celebrations and expressions of faith.
Until we can express our gender without fear of reprisal or ridicule.
Until gender stereotyping stops and we are all free to be wholly human.
Until the cure for homophobia is discovered.
Until we can love and be loved, with joy and gay abandon.
Here in the House this week we can ensure that at least in part “until” becomes now for transgender and transsexual Canadians.

Topic:   Private Members' Business
Subtopic:   Canadian Human Rights Act
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