The EFC opposes the passage of private member’s bill Bill C-389, which is intended to add “gender identity” and “gender expression” as prohibited grounds of discrimination under the Canadian Human Rights Act.
First, the bill would create a federal anomaly in that no other human rights legislation in the country specifically addresses the issue of people who either believe they are or would otherwise indicate their gender identity is different than their gender body. The anomaly would apply only to areas of federal jurisdiction, or it would create a setting where provincial governments will feel pressured into adding similar provisions to their human rights codes not because it is good public policy but because of a history whereby the courts have required similarity in the concepts between the varying pieces of human rights legislation across the country.
Second, given the difficulties of addressing what would constitute an offence against someone who doesn’t appear physically to others to be the gender they self-identify as internally, the results of passing the bill are unpredictable; other than what has been taking place in other jurisdictions where there have been reported difficulties with people wanting to use the public washroom of the gender they internally identify with rather than the gender they appear to others to be.
The EFC did not comment earlier on this bill because, quite frankly, we did not anticipate this bill would proceed to the place where it is eligible for third reading and potentially for passage by the House of Commons.
The bill has been problematic for some Members of Parliament, partly because people fear saying anything that might sound like an offence directed toward the LGBT community. This is because there are those in the LGBT community who have an unfortunate tendency to label people who oppose such initiatives as “homophobic.”
The terms “gender identity” and “gender expression” would remain undefined in the Act if this bill is passed, leaving interpretation to the Canadian Human Rights Commission and whatever cases might filter into the courts. For Parliament to engage in such an enactment requires that these new legislative terms be properly defined.
The intent of the legislation to protect others from hatred and discrimination is a worthy intent, however, there must be a fuller consideration of the potential consequences of such an amendment to the Canadian Human Rights Act.
The EFC strongly encourages Members of Parliament to giver fuller consideration to the potential consequences of passing this bill and to vote against it.