By Don Hutchinson
Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), arrived for hearing before the House of Commons Standing Committee on Justice and Human Rights on Tuesday, November 20, 2012. The bill’s sponsor, Randall Garrison (MP, Esquimalt – Juan de Fuca), noted that he worked to ensure the timing of the hearing date would coincide with the international Transgender Day of Remembrance on the same day.
It is unfortunate that a Transgender Day of Remembrance is required as no one should be singled out for mistreatment or abuse. All are made in the image of God, and thus of inherent and inestimable value. All are also different from each other and none more unique than another.
Still, there is no need for Bill C-279. While the bill would no longer create a jurisdictional anomaly, as I wrote a year ago in regard to its predecessor Bill C-389, because Ontario enacted legislation in June to add the categories of “gender identity” and “gender expression” to its Human Rights Code, such amendment remains unnecessary. As Ontario Human Rights Commission (OHRC) Chief Commissioner Barbara Hall noted at the October 3, 2012 Ottawa launch of the OHRC’s Policy on Competing Rights, the OHRC is currently developing its policy on gender identity and gender expression by reviewing decisions made by tribunals and the courts under the prohibited grounds of “sex” and “sexual orientation.” In short, the courts and human rights tribunals have already developed jurisprudence under existing human rights categories to protect people who are transsexual or transgendered.
At the risk of repeating myself these 12 months on:
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.
I might add to the list that it seems unnecessary (and unlikely) that there would be the need to pursue “religious identity” and “religious expression” as separate identifiable grounds from “religion.” Although such additional language would be comparable to what is proposed in Bill C-279.
The danger in adding unnecessary language to any statute, and particularly to human rights statutes, is that the new language is in need of interpretation. The proposal in Bill C-279 is to introduce “gender expression” and “gender identity” as undefined terms that will then be thrust before tribunals and courts for an interpretation that may or may not align with past understanding of the issue. The courts operate from a position that there must be a reason a legislature adds new words to legislation. The reason is usually assumed to be that the old language was somehow inadequate. And thus the quest begins for them to provide an adequate interpretation to the new language. This bill offers no certainty of understanding or interpretation in that it proposes adding undefined terms to the Canadian Human Rights Act. Such action has proven historically to be a dangerous gambit.
The reason some have labeled this the “Bathroom Bill” is because the difficulty of addressing potential discrimination in regard to someone who doesn’t appear to others to be the gender that they consider themselves to be (and desire to be so considered as by others) is fraught with unpredictability. Despite the intention of the transgendered Colleen Francis, her naked presence – with male genitalia – in the women’s locker room and sauna at Evergreen State College in Washington State while a high school girls’ swim team was using the facility last month caused understandable upset for the girls, parents and others. The girls now use a smaller washroom and Colleen has the large change room and sauna to herself. There is a point at which individual rights must give way to others in a society, or at least a point where common sense should prevail. Perhaps, in Ontario, the policy on competing rights would come into play but is it necessary that there be such a complaint in the first place? And if there were such a complaint, history has shown it would already be dealt with under the categories of “sex” or “sexual orientation.”
The bill is problematic for many MPs because they justifiably fear taking action that might be seen as an offence by activists in the LGBT community, a vocal and influential group in contemporary Canada. I’ve written another blog on the inappropriate use of the label “homophobic” which offers some advice that is applicable here:
As sword rather than shield, the term is used to suggest a psychological disorder in the person or organization so labelled; and, to generate fear and to bully those it is directed against into silence. This label has become the contemporary slur of the 21st century, intended to silence the voices of those in our free and democratic society who might disagree with the public policy agenda of a select group of activists. This slur is intended as both insult and indictment directed at the very nature and character of the person or organization that dares to disagree …
… Accusations of “homophobia” have no place in public discourse, public dialogue or public debate and certainly no place in the legislatures, public squares or public schools of our nation. Reasonable people will disagree on matters of public debate. We might disagree with one another, but we are still called to accept and respect one another – as Canadians.
While the intent of protecting others from hatred and discrimination is worthy, Bill C-279 is a legislatively inadequate and unnecessary proposal. Parliamentarians are called upon to give full consideration to the potential consequences of such a vague amendment to the Canadian Human Rights Act and cast their vote responsibly. The concern for sound public policy should not be misunderstood or misrepresented, just as no person – straight, gay or transgendered – is deserving of mistreatment or mischaracterization. The mistreatment intended to be addressed by the bill has been exposed as being already covered.