Canadian Politics, Trans, Transsexual

C-279 amendments made, in afternoon of impassioned speeches.

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Update / Correction: The amendments were given a voice vote, but not actually passed.  Because there was visible opposition, it’s subject to recorded division, and the amendments will be voted on, on March 20th.

More twists and turns than a mangled slinky.

It’s official, the amendments to drop gender expression and define gender identity have been made.  To me, whatever happens, it will all be bittersweet.

The debate, however, was very good.  Keep the kleenex close by.  From Hansard, here are the highlights:

David Anderson brings up the obligatory “bathroom bill” panic:

One concern is that the bill is unsettling to people. The author has really refused to talk about or deal with the potential implications and consequences of such wide-ranging and undefined legislation. My constituents, I have to say, do not see this as benign legislation because of the things we just talked about, in particular the fact that there is such a lack of definitional framework to the bill. What I am getting from my riding is that the constituents oppose it, but they do have some questions that I will pose on their behalf.

The first question to the member opposite is this: does he actually believe that there is no one who will try to abuse the situation that would be created by his deliberately vague legislative agenda?

That is what the member seemed to be saying when he spoke, but he has refused to address this criticism in his speech. It remains out there in the public’s mind, and I have heard that from my constituents.

Second, especially with regard to minors and adults, my constituents have questions about the power relationship that would exist in what in the past were basically private facilities that would now become very public facilities. They are asking what their obligations and rights would be. The failure to address these issues is really why the bill has become known as the “bathroom bill”. I do not think we can just brush off people’s concerns.

Sean Casey chided him for it while touching on the key points:

So in the context of this debate, which has at times been a vigorous debate and at times a debate with moments unworthy of this House, there are some who, contrary to evidence and facts, choose another path to make their case. They choose fear and innuendo, all the while claiming a moral high ground. They claim for themselves exclusivity to that which is right and decent, using language that is hurtful and demeaning. How can anyone claim to be of good heart or claim the virtue of “love thy neighbour” yet reduce this bill to gutter language when they call it “the bathroom bill”? It is an entirely offensive and erroneous implication to suggest that transgendered people would be lurking late at night in bathrooms should this bill pass.

Megan Leslie gave an emotionally charged speech, and since I don’t see a video to post yet, I’ll include it all right here:

Mr. Speaker, I want to thank the member for Charlottetown for his speech. That was really incredible.

I am a trans rights activist. I have been working on the issue of transgender rights for many years in my community of Halifax, and I am an ally to the trans community. Years ago, when I was a law student, and then later when I was working at Dalhousie Legal Aid, I worked with NSRAP, the Nova Scotia Rainbow Action Project, and we developed a trans rights awareness program.

I had the opportunity to work with transgendered Nova Scotians to develop a presentation on trans rights. We actually presented to the Nova Scotia Human Rights Commission on the realities of being trans people, their experiences, day after day, within their communities, our communities, within their/our legal institutions and within their/our government institutions, because we do not realize, when we are cisgender, which is when our gender identity matches our biological sex, how often we get to take for granted our gender rights.

I had a transgender client who once asked me to write a letter on official legal aid letterhead that gave a legal opinion about her right to use the bathroom, based on case law. She would keep it in her purse and use it if she ran into problems. Imagine walking around with a legal document, a legal opinion, in one’s purse or wallet to settle disputes about the right to use a bathroom. Imagine the indignity of arguing this with mall security, with a bouncer, with classmates or co-workers, just to heed the call of nature. It could be at any time. It could be this afternoon. It could be tomorrow. It could be every day. It could be never. One just does not know when it is going to happen.

Imagine being pulled over by the police for speeding and answering questions about why the sex listed on one’s identification does not match one’s gender identity. Perhaps one’s birth name is called out at the doctor’s office, because one has to have sex reassignment surgery to change identification. Imagine what that would feel like. These small indignities happen every day to members of our community.

The bill does a small thing by adding trans rights to the Canadian Human Rights Act and by adding trans motivated hate to the hate crimes list. It is a small thing, but it is a magnificent thing.

I am pretty close to the trans advocate community at home, and we have had long discussions about the idea that adding trans rights to human rights legislation may not actually grant protections that members of the trans community do not already have. As we heard, there is ample case law to show that human rights commissions will fit trans rights into different categories that already exist. For example, when Nova Scotia Rainbow Action Project made our presentation to the Nova Scotia Human Rights Commission, it was strong and steadfast in its commitment to protecting trans rights and said that it would find a way to make it fit under another ground, but what ground? How do we protect the dignity of trans Canadians when we are asking them to fit their problem into the margins? How do we protect the dignity of trans people by making them look for their rights under another category, such as sex, when it is not about sex, or gender, when it is not about gender, or disability, when it is absolutely not a disability?

It is meaningful to look at rights and see ourselves there. It is important to know that we are protected, that we can hold up a human rights act and say, “I am protected. I am here in this document”.

Further to this argument, we heard evidence from the Canadian Human Rights Commission that fitting trans people into the margins now is not a guarantee that they will be fit into the margins in the future. Enshrining rights in legislation protects those rights, and trans Canadians need this protection.

The Canadian Police Association agrees. Today, president Tom Stamatakis spoke out in favour of this bill with a simple and beautiful statement that equality under the law is an important principle for Canada’s front-line police personnel to uphold. It is that simple.

My home province of Nova Scotia has had this debate in our legislature. I want to share a letter from Kate Shewan about how things have changed since this legislation was passed in our province.

I think we can learn from the Nova Scotia example, and I think we can learn from the members of our trans community who have had this experience.

She writes:

      I’m a board member of Nova Scotia Rainbow Action Project, an organization that advocates for the rights of the LGBT community. I’m also a trans-identified person. I’m writing to you in support of Bill C-279.
      As a member of the trans community in Nova Scotia, where provincially we’ve benefited from the changes to the human rights act, I’ve seen first hand how this change can benefit individuals within the trans community, a community which has suffered significant discrimination.
       The immediate change that I saw following the Nova Scotia legislation was a change in attitudes and a new confidence. Members of the trans community who had almost taken it for granted that they would be discriminated against in the employment market and other areas of society felt empowered and more confident, knowing with certainty that their rights were protected, and seeing that the challenges our community faces had been formally acknowledged. In a group that suffers significant unemployment, underemployment and disengagement from society in general, I believe this empowerment and confidence will help to give trans Canadians a better opportunity to reach their full potential, improve their employment and economic situations and become more engaged in the community.
      It is important that these protections are also in place at the federal level, so that all trans Canadians can benefit from these changes….
Today is International Women’s Day, and I heard a lot of statements in the House about how far women have come in our fight for equality. I heard a number of references today to the Persons Case, a court case that ruled that we, women, were persons under the law.
The result of that case probably did not do much for women that week. It probably did not change their day-to-day experience. It did not mean that the next day all of a sudden women got to sit at the tables of decision making. It did not mean that the next day they started working outside the home and were paid wages equal to men’s, and it did not mean that domestic violence ended.
However, not long after that, some women got the right to vote. A woman could look at that document and know that in the eyes of the law, she counted.
In the lead-up to today, I got a lot of calls and emails from my community telling me why they thought I should support this bill. Of course everybody knew that I would, but they sent me such interesting things that I wanted to share a couple of them.
I had one community member who contacted me to say:
      I’m trans, but have a good job, house, car, money in the bank…by all measure successful in most people’s eyes. (Not to boast) just trying to show that we are like most other people, just are part of a gender spectrum that is finally being recognized.

I also want to share a letter I received from the sexual orientation and gender identity division of the Canadian Bar Association. I was a member of that group when I was a law student. This is from the chair of the equality committee and the co-chairs of the sexual orientation and gender identity community. Here is just a shout-out to Amy Sakalauskas and Level Chan who are actually from Nova Scotia. I was happy that they have taken up this issue. They wrote:

      Transgender Canadians are a minority who suffer profound discrimination, such as job losses, alienation from their communities, ridicule, harassment and inadequate health care services. They also disproportionately fall victim to hate crimes, including homicide.

They go on. It is these kinds of examples that make us realize we have to do something about this.The bathroom panic argument just does not wash. We have laws against peeping Toms. It is an illegal act. That argument does not wash here.An argument that does wash here is that recently I was at a community event and a young person came up to me. I do not really remember it. I do not remember if this person was a young man or a young woman, blond or brunette, but this person came up to me, took my hand and opened it, put something in my hand and closed it up. Then they left.I opened my hand and there was a tiny little note. It said:

      Thanks for giving…[an eff] about trans people.

I think that is why we are here.

Michelle Rempel also gave an emotionally-charged speech.  As things were proceeding, folks on Twitter and news feeds were arguing over whether her words meant that she is or isn’t going to support the bill.  But in fact, it’s still not entirely clear.  Again, her comments are included here in full:

Mr. Speaker, I speak today to Bill C-279. I would like to thank the member for Halifax for some of her comments here today.

I have had the privilege of representing constituents in Calgary Centre North for nearly two years now. In this time, I have had the opportunity to review many pieces of legislation and debate both their merits and their flaws. As I have done so, I have been struck that oftentimes, we have to evaluate two components of legislation: the why of the bill and the how of the issue. Many times we disagree, sometimes vociferously, about the why. We have differing political ideology, thoughts on how public policy should be best utilized and thoughts on how this country should be governed. It is in this context that I first speak to the why of this bill.

After reading testimony from witnesses during this iteration of the bill and in the last Parliament, and after consulting with those who work with members of the trans community and members of the community itself, I am frankly shocked by the discrimination this group of people faces.

The member for Esquimalt—Juan de Fuca and witnesses to this bill at committee, and indeed members here today, have given this House so many examples that I cannot reiterate them. Suffice it to say that I would offer that the summary of evidence could read as follows: the trans community in Canada has, on frequent occasions, experienced elevated levels of sexual violence committed against members; frequent workplace discrimination and job loss based on gender; lack of clarity on health care provisions and sometimes access to health care; lack of clarity on processes related to obtaining identification documents; bullying in places of employment and educational institutions; discrimination in accessing housing accommodation; and numerous other incidents of discrimination.

Most importantly, they live with the consequences of these acts of non-compassion, of false assumptions that, simply by virtue of their state, they are sexually promiscuous, or more ludicrously, that they are criminal. In this, the trans community experiences very high levels of both depression and suicide. This is not acceptable to me, and this is the why of this bill. It is my hope that no one in the House, either on this side or the other side, could read the testimony, could talk to people in the community, and argue that this is acceptable or tolerable in our country.

The question set upon us as legislators is the how. How do we prevent these situations from occurring?

I have spent a lot of time on the how. I found that this bill seeks to address the how by addressing the following assumption, using the language of the member for Esquimalt—Juan de Fuca during the bill review at the Standing Committee on Justice, that “transgendered Canadians do not enjoy the same protection of their rights as other Canadians”.

This is a very serious charge that is worthy of study, as the ideas and values that are the heart of how our country operates, the freedoms it affords to all groups to worship without persecution, to seek prosperity in one’s field of work, to choose whom we love, and to speak with conviction on issues that impact our communities, are all based on the assumption that Canadians have equality of rights in freedom of expression and can do so without the threat of discrimination or violence to their person. However, to assess whether this bill provides an adequate how, I first evaluated the validity of this assumption.

The member for Esquimalt—Juan de Fuca had an exchange with the member for Edmonton—St. Albert at justice committee about this assumption. The member for Edmonton—St. Albert said:

      Except now that the Canada tribunal has emphatically stated that there is no longer any doubt, I would suggest to you that your first hurdle has been cleared by precedent… There is now case law that supports the proposition that individuals who have a genuine gender identity disorder are entitled to human rights protection.

There have been numerous examples given in the House and at committee of case law that shows that this provision exists. I understand the member for Halifax when she says that she wants to see herself in that human rights bill. The case law does exist to show that it is there.

Mr. Ian Fine, the acting secretary of the human rights commission, stated the following, “the commission, the tribunal, and the courts view gender identity and gender expression as protected by the Canadian Human Rights Act”. Having said that, he also stated that “adding the grounds of gender identity and gender expression to the [Canadian Human Rights Act] would make the protection” of the transgender community explicit. The rationale that he stated for this necessity was as follows: “This would promote acceptance and send a message that everyone in Canada has the right to be treated with equality, dignity, and respect”. I do not disagree with the latter part of that statement. It gave me quite a bit of pause for thought, and that has been at the heart of my deliberations on the bill.

It could be argued that this is contradictory in some regard. Mr. Fine previously made a statement that the tribunal, the commission and the courts do view gender identity and expression as protected by the Canadian Human Rights Act, and that somehow even though this protection exists, it does not send enough of a message to Canadians on this issue. While this contradiction may be well intentioned, I feel there are many examples where serious issues arise when legislators equate symbolism with social action or when we inadvertently dilute the role of social activists by being reactive to an issue with legislative symbolism.

The member for Halifax has my playbook because she stole my speech on International Women’s Rights Day. I would like to speak on the social action process for the struggle for female gender equality.

Even after laws were passed to enshrine women’s gender equality within our laws, the member is right; we did not see those changes happen overnight. In fact, lawsuits still had to be fought and won, offenders had to be charged, battles had to be waged to change workplace codes of conduct, and awareness training programs had to be crafted. I would like to highlight that in the British parliament, even after women had been elected, as little time ago as 1993, a woman in this place did not make it to a vote because she could not find a bathroom.

I have also stood in the House to highlight that sexism does happen with frequency in this country in spite of these laws. I am not trying to imply that the struggle for trans rights is directly concurrent with the struggle for women’s rights, but in my deliberations on the bill, I found there is a burden of evidence which suggests that case law does exist to provide the trans community with protection under the law against discrimination and violence. Here is my concern. In this fact, the how of this legislation may not achieve the ultimate solution to the why, in that it may place too much of an emphasis on symbolism over direct social action.

As always, the member for Halifax makes a very compelling argument.

A question that I have struggled with in evaluating the validity of the bill is what guidance we, as legislators, are truly giving judicial organizations in how to carry out the intentions of Parliament in this regard. The way the term “gender identity” is defined in the preamble of the bill, even with the amendments, played a large part in my decision to vote to study the bill further. I am still not entirely clear on how parliamentarians, the human rights tribunal, criminal courts, sentencing judges and the broader community at large will be required to interpret this term.

I am also not clear on the following key issues. What constitutes the scope of discrimination against someone based on his or her gender identity in the eyes of my colleagues, as legislators, of members of the trans community and the courts? What kind of speech based on someone’s gender identity could be considered hate propaganda? What does it mean in defined terms to have a bias based on a person’s deeply held internal and individual experience of gender?

Admittedly, the evaluation of this legislation has been very difficult for me because I believe that the why it presents is concerning. Any time we as parliamentarians are faced with clear situations where fear of differences or lack of awareness allow hatred to mushroom, we have to take note and ask ourselves what role we play in breaking down these barriers. This legislation has opened my eyes to the plight of a group of people in this country who experience extreme discrimination. Both sides of this debate should agree that equality and protection against harm are two fundamental values that all Canadians of any gender, any age, any background are entitled to.

However, as legislators we are also tasked with deciding if the proposed legislation is sound. Given the lack of clarity that I found in the bill, I do have concern about its viability and if the how will achieve what the community and Canadians hope for in addressing the why.

Raymond Côté (after relating some personal experiences) presented the theological case for — yes, for — the bill:

All of my colleagues in the House will agree that human dignity is non-negotiable. It is very simple. I would even add that the sanctity of human life is something we value so highly—at least we should—that we cannot put a price on defending it. We must never tolerate pettiness or compromise.

I have spoken about my faith before, and I want to share some of the Catholic Church’s social doctrine. It very clearly states that every human being has the unalienable right to exist and to have dignity within society. That represents a tremendous challenge, because it means that we must allow the right to be different, the right to a certain degree of dissidence, the right to go against the established norm and the right to go against the stream.

This also means that people like me, who have the privilege to have a favourable—even comfortable—place in society, must make concessions. I am very pleased to be able to reach out to a group in our society whose rights are too easily violated and to offer them some progress. It may not be perfect, but it is still progress.

Jinny Jogindera Sims concluded the debate by again evoking the struggle for women to be recognized as persons under law:

My colleague articulated beautifully the struggle that women have had. When we look at history, it was not that long ago that women were not recognized as persons. I challenge anyone in the room to think that we could be sitting in the House as women representing our ridings if that legislation had not been enacted and we had not been recognized as persons. That did not automatically get rid of all the discrimination and all the barriers and glass ceilings that exist. However, what it did do was to open up a pathway, and it took away the greatest barrier, which was to not be recognized at all.

This bill, in turn, would do exactly that. It says to the members of our transgendered community that they are part of this society and they are explicit in our human rights code. They do not have to hide, nor do they have to go looking to see which corner of the human rights code they fit in, nor do they have to see if there is a judge who is going to be favouring looking for a spot or fear a day when the judiciary could turn around and say it is not explicit and cannot be found in here, so they are not covered. It is to avoid that very situation that we have to have legislation like this.

… I do not know if members are aware, but I was a classroom teacher for a very long time. In that role, one of the things I discovered very early on in my teaching is that for children to be successful in life, they have to see themselves reflected, but they also have to feel themselves protected. When we have transgender young people in our community who do not feel protected explicitly in our law, we leave them vulnerable.

… It would be fitting if we could all vote for this measure unanimously, especially when we are on the eve of International Women’s Day. We would celebrate the fact that we have enshrined those rights into our legislation and into human rights.

Following this, the amendments were given a voice vote and accepted into the bill, and the Speaker announced that proceedings will resume on March 20th:

Normally, at this time the House would proceed to the taking of the deferred recorded divisions at the report stage of the bill. However, pursuant to standing Order 98, the divisions stand deferred until Wednesday, March 20, immediately before the time provided for private member’s business.

Previous records or notes:

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