Bill C-279: Where it stands.

The Parliamentary process has more twists and turns than a bloody mangled Slinky.

By now, I’d hoped to write about how the Conservatives’ filibuster of the committee process meant that the trans human rights Bill C-279 would be returning unamended for Third Reading, but then I found out that there’s a possibility that the two amendments arrived at in committee might still be accepted for introduction by the Speaker of the House.  So I can’t make any certain statements about the bill, or what it will be. Others have already begun branding it the “Gender Identity Bill.”  Barring some unforeseen disruption of process, Bill C-279 should be back before Parliament in late February or early March (the Parliamentary process on Private Members’ Bills is quite long), and we will probably know by late this month whether Randall Garrison will ask the Speaker to include the two amendments decided on in committee.

But in the meantime, people have still been asking about what my position on the bill would be if it does somehow proceed with the amendments.  Others have already stated that they would actively oppose a bill if gender expression is dropped.

Having been one of the people who early on expressed concern about the consequences if gender expression were dropped from Bill C-279, and if definitions were added for gender identity which potentially excluded people, I feel some obligation to say something publicly about the mixed sentiments happening around the bill that might have been (and may yet be).  I’d said at that time that if either took place, I didn’t believe I could support the bill, although whether I’d oppose it would have to depend on the specifics that emerged.  There has been some near-division that has resulted, and I feel some responsibility to address it (and am late doing so, as it is).

First…

I think it’s important to remind folks that transitioning people are mostly considered read into existing legislation already, although there is some feeling of precariousness to that, and it takes some effort to demonstrate inclusion in each case (which was one of the reasons the acting CHRC secretary general, Ian Fine, agreed that explicit inclusion would be helpful).  Because of this, I do personally believe that Canadian trans people have the luxury of taking the time to pass a comprehensive trans human rights bill, without people falling through the cracks in the meantime — and I believe that this is far preferable to trying to fix a flawed or abbreviated bill later.  For that matter, the more discussion that happens about trans people, the more that hearts and minds can be (and are) changed… so taking longer to pass a bill is not all bad.

It’s also worth pointing out that Bill C-279 applies to federal contractors and federal institutions.  It would provide an important signal to provinces, employers and Canadians in general as well, but it doesn’t of itself provide total protection to everyone across Canada.  There are a lot of emotions wrapped up in this bill, as though all our lives depend on it, and maybe we need a reality check on that.  It’s important, but not to the level of the emotional involvement people currently have with it.  This is another reason why I believe we can afford to be pragmatic and seek something comprehensive.

Would I oppose an amended C-279?

This question may be moot.  The committee process was deliberately filibustered by Conservatives, who sabotaged a motion to ask for an extension to finish considering the bill — something that was only supposed to be a few minutes for a y/n vote — with over an hour of debate that actually runs afoul of Parliamentary policy.  As a consequence it should be the unamended bill that proceeds onward, but apparently, this isn’t certain.  So for now, we’re only talking about something that might be.  Theory.

However, trying to reintroduce those amendments for Third Reading would probably provide the political opportunity to bring up the committee chaos and portray the bill as confusing, risky, vague, and everything else that opponents have claimed thus far.  It could also reopen a debate about adding a different definition, etc.

Without Gender Expression

In theory, if gender expression is dropped, it could in fact still work the way that Randall Garrison and many others believe — that gender expression would be read into the legislation, anyway.  It’s not an ideal situation, and I could not in good conscience actively support that bill.

But I don’t think I’d stand in its way, either.

I don’t like incrementalist approaches, given that we’ve been on the short end of that stick enough times to recognize the harm of them.  I will not participate in an incrementalist effort that could potentially exclude some trans people.

(For that matter, gender expression inclusion is not something to be afraid of, when you know more about trans people, diverse as they may be.  All the fearmongering that has arisen about gender identity and gender expression is based on assumptions of illegal or inappropriate behaviour projected onto trans people, with the belief that human rights inclusion will somehow absolve someone of said behaviour.  Human rights legislation does not absolve people of responsibility for their actions, or give people an excuse to conduct them.  It never did.)

But I’ve also watched the divisions and rifts that have happened in other places where trans-inclusive initiatives fall apart.  It can get very bitter very quickly, and in a way that will never help us develop the infrastructure that trans people (as a movement) need.  I don’t want to be responsible for something similar, especially if I can’t be certain any actual harm would happen.

Definitions

In theory, if gender identity is defined, it could easily be a bigger issue, if that definition excludes people.  Especially given that two of the definitions proposed (both by Brent Rathgeber, I believe) would have required a diagnosis in order to be eligible for human rights protections.  But the definition that was accepted was the one in the Yogyakarta Principles, and I’m relatively comfortable that it does not do that:

“Gender identity is understood to refer to 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…”

Gender

A question was also raised whether gender identity and gender expression were even the right terms to work with, and asking whether “gender” would be the better term.

Personally, I’d be concerned that “gender” would still result in the same uncertainty that exists with the read-in inclusion under “sex.”  I’d also be very worried that this is a bad stage to be changing terminology, especially when there is a lengthy track record for gender identity and gender expression, which are used and understood in many international documents.

But there’s no value in being closed-minded to discussion, so I’m interested in hearing the reasoning.  The questions I’d ask are:

  1. Are there any areas that focusing on “gender” would address that the current approach doesn’t?
  2. Are there failures of the current approach, and are they serious enough to necessitate a late detour?
  3. Wouldn’t a definition be necessary in order to assure inclusion using “gender,” and isn’t this as problematic as the status quo?

But there could be some value in including gender, and defining it in contrast to sex.

This is, however, a longer-term discussion, and I don’t know that it affects the current path of C-279, unless there is something particularly problematic about the bill.

So

For the time being, there is still some uncertainty about which bill will be proceeding.  We will probably know in late January, and then the Bill will come up in late February.

For those who would like to see the original bill move forward, my suggestion is to lobby those who supported it thus far (this is a good time to, since Parliament is out of session for a couple weeks and legislators are likely to be in their ridings), and let them know why a comprehensive bill is important and why “gender identity” fails to cover all trans people on its own.  And if they pledge to support the bill regardless of whether the amendments are included, please let Mr. Garrison’s office know.

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