Later today or tomorrow, Members of Parliament will vote on Bill Siksay’s (MP, Burnaby–Douglas) private member’s bill Bill C-389 which proposes adding “gender identity” and “gender expression” as prohibited grounds of discrimination under the Canadian Human Rights Act.
If passed the bill will proceed to the Senate, where hopefully Canada’s chamber of sober second thought will think twice before making this law. Hopefully, Canada’s chamber of first consideration will not let the bill get that far.
So, what’s the issue with protecting people who are transsexual or transgendered? None, whatsoever. All Canadians are deserving of protection from hatred and discrimination. There are, however, issues with this bill.
First, as Dan Irving and Jennifer Evans astutely noted in their Globe and Mail article, Why Canada Should Protect Gender Identity, “trans citizens are protected under existing human rights categories.”
The courts and human rights tribunals have already developed jurisprudence to protect people who are transsexual or transgendered under existing human rights categories. In fact, this same protection is already afforded under the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.
When “sexual orientation” was read into the Charter and when Parliament was considering its addition to the Human Rights Act, consideration was given to a general term that would be broadly encompassing in similar fashion to the words already used in human rights legislation. Certainly, the parliamentary committee heard that the term “sexual orientation” was broad enough to include the issues of nature (born that way) or nurture (a result of environmental factors) in regard to one being heterosexual, homosexual or otherwise sexually oriented. To now suggest the need to specifically deal with transsexual and transgender individuals would be like me advocating that the term “religion” is inadequate and therefore human rights legislation should identify Baptists, Mennonites, Salvationists, Pentecostals … just to mention some of the Protestant Evangelical Christian expressions.
Second, the bill proposes to create a federal anomaly. The Canadian Human Rights Act only applies to areas of federal jurisdiction as defined in the Constitution Act, 1867. No other human rights legislation in the country will contain the words. And, quite frankly, it would be superfluous to add them in Newfoundland, Prince Edward Island, Nova Scotia, etc, because the protections are already in place. Yet, provincial governments will either feel compelled to fall into line or the courts will find a reason to require it in order to ensure consistency across jurisdictions; a consistency that, as noted earlier, already exists. (Are you confused yet? I’m getting there.)
Third, the difficulty of addressing potential discrimination against someone who doesn’t appear to others to be the gender that they consider themselves to be and desire to be considered as by others is fraught with unpredictability.
When the term “sexual orientation” was chosen by legislatures and the courts as one equivalent with “religion,” “ethnic origin,” “race,” etc, it was considered to include straights, gays, lesbians and others. The expanded concerns of the then gay and lesbian community to LGBTTTQ (lesbian, gay, bisexual, transgender, transsexual, two-spirited, queer) has not changed the term that was intended to be inclusive. Unless “sexual orientation” has suddenly become legally inadequate, there seems no good reason to begin a new experiment with Canadian human rights legislation, particularly an experiment that has been rushed through the House of Commons without benefit of full committee hearings and consideration of the potential results of such a sex policy change.
Members of Parliament need to give full consideration to the potential consequences of passing this bill and vote against it.
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For the EFC’s official statement on Bill C-389 please read “Bill C-389: The EFC Opposes Proposed ‘Gender Identity’ Amendment to Human Rights Act”
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Bill C-389 passed “report back” stage in the House of Commons on December 8 by a vote of 143-131. As a result of delay occassioned by other business, the third reading debate and final vote in the House will now take place on a date yet to be scheduled, likely in late February or early March.