Archive for the ‘ Sex and Gender Minorities ’ Category

Nova Scotia Extends Health Care Coverage for Reassignment Surgery

After originally saying that it would not fund genital reassignment surgery, the Nova Scotia government has now said that it would extend health care funding coverage for the procedure.

Health Minister Dave Wilson is quoted as saying, “This is the right thing to do.”

I’ve written previously about why GRS is recognized as being medically necessary by medical experts, specialists in trans health, social agencies and human rights organizations.  Here is a snippet:

… There is more. Current legislation asserts that most forms of identification and legal documentation can only be changed to reflect one’s new gender after surgery has been verified. Without GRS, many pre-operative transsexuals experience severe limitations on employment, travel beyond Canada’s border, and treatment in medical, legal and social settings in which verifying ID is necessary. Prior to GRS surgery, transsexuals also face limitations on where they can go (i.e. the spa or gym, or anywhere that involves changing clothes) and difficulties in establishing relationships — as well as being in that “iffy” area where human rights are assumed to be protected, but have not yet been specifically established as such in policies and legislation. In hospitals, prisons and such, they are housed by physical sex rather than their gender identity, creating potentially risky situations, unless the authorities directly involved choose to keep them in isolation instead. And at the end of the day, without GRS surgery, one’s gender is always subject to being challenged or stubbornly unacknowledged by those who don’t realize that a transsexual’s gender identity was not a matter of choice. There is also an extremely high risk of violence faced upon the accidental discovery that one’s genitalia does not match their presentation.  No other supposedly “cosmetic” issue so completely affects a persons rights, citizenship and safety…

This is the fulfillment of several years of work for Nova Scotian trans people.  While details of the program are not yet known, the community had been advocating for comprehensive trans health coverage:

This points to a trans* health care model that includes, but is not exclusively reliant upon, SRS; that is driven by the individual and their particular requirements; that serves all of the trans* community, including those who do and those who do not seek SRS. This is exactly the kind of culturally competent, patient driven, community health care model that both Minister Wilson and his predecessor, the Hon. Maureen MacDonald, have been advocating for Nova Scotians. This is exactly the model that we, as a community, should be asking for.

Nova Scotia also recently added trans people to that province’s human rights legislation.

In a note on Facebook, Kevin Kindred and the Nova Scotia Rainbow Action Project are encouraging people to contact their MLA and send letters of thanks and support.

Most Canadian provinces provide some form of funding for GRS, now (albeit sometimes imperfect) — only New Brunswick and PEI do not.  Attempts to defund GRS have been met with sustained pressure from the public and human rights complaints, with Ontario delisting coverage in 1998 (restoring it ten years later), and Alberta delisting funding in 2009 (restoring it in 2012).

(Crossposted to Rabble.ca)

2013
06/13
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The non-operative word is not “sorry.”

I’m going to be writing about transition regrets and/or reversal of transition (sometimes from folks who remain trans-identified).  Before I do, though, it seemed necessary to finish and put this article out there, as it lays the groundwork.  I’d written about the decision to be non-operative previously, and had intended to leave it at that, but it remains one of the most hotly-contested and misunderstood subjects that I touch upon.

When it comes to genital reassignment, the non-operative word among trans people should not be “sorry.”

That’s not a very popular statement in transsexual communities.  But as much as I don’t like “rules” for being trans, I have arrived at one guideline:

Do as much or as little as you need to achieve the peace that you need.

It’s not quite that clear and simple, of course, especially given the pressures to conform and integrate as either male or female, which have been idealized as binary opposites in society.  Trans (that is to say, both transitioning from one sex to another and/or living between genders) challenges those absolutes, but it’s also a lot to ask, for someone to remain a life-long challenge to society.  And phrasing it as a “pressure to conform” oversimplifies something that also includes fears about going swimming or to public places of semi-nudity, going through airport scanners and traveling internationally, being in sex-segregated spaces like homeless shelters or correctional facilities, or the possibility of being challenged in a public restroom.

Relationships can also factor into the equation.  Genital reassignment surgery is inevitably going to change a dynamic within intimate relationships, and raise questions about our sexualities and those of our partners.  While the decision for or against GRS shouldn’t be dictated or coerced by our partners, when we love someone, it’s inevitably going to be on our minds.  Some individuals will be able to consider foregoing surgery as an act of love and sacrifice, while for others it would be far too much to ask — we’ll see why, shortly.

Another factor that blurs the lines is the fact that we live in a nation where our enfranchisement in society is largely affected by our identity documents.  In Canada, only the Province of Ontario has a provision to change a birth certificate without multiple verifications of surgery — and in many provinces, the same is true of lesser documents like driver’s licenses.  While our Social Insurance card does not display a gender marker, potential employers can do an S.I.N. check which displays a gender marker in the resulting report — and that, too, cannot be changed without a new or amended birth certificate.  When our ID is incongruent, it potentially exposes us to harm and/or discrimination when we’re carded, and at many other stages of just trying to live and work and access services.  At no other time is a person’s enfranchisement in society dependent on them having surgery.  But because that is the status quo in Canada and most parts of the U.S., it will inevitably be a point of consideration, for the time being.

Medical issues can also be factors affecting whether one can or can’t obtain surgery.  This might take the form of a serious health condition that precludes undergoing other procedures (some of these — such as diabetes or HIV — can be worked around by finding surgeons with better hospital access, but other conditions can be completely prohibitive).  It might also refer to fear of undergoing a major invasive surgery, an aversion to the medical process overall, a desire to wait until techniques improve, or living in a province where GRS is not funded and not being able to afford it.  Occasionally, health care funding is an influence for GRS, such as situations where vaginaplasty or phalloplasty are funded by insurance while orchiectomy, metoidioplasty or other options are not.

But for the moment, let’s put all of these things — health, cost, relationships, social pressures, legal identification and enfranchisement — aside.  In an ideal world, the decision to have surgery should hinge on an individual’s needs and the advice of their doctor.

This may seem a little confusing for people who have read my writing about surgery being a medical necessity.  I still maintain that its availability is, and that when surgery is necessary for an individual, it is an absolute necessity.   Relationships and legal enfranchisement obviously underscore this need, and there is also an economic benefit to resolving gender identity conflicts, so that a person is better-able to function and be productive.  But it’s also important to remember what GRS is designed to do:  alleviate distress.

Gender dysphoria encompasses a number of aspects: body dysphoria (in which genital configuration causes anxiety, revulsion, discomfort, or simply unease), social dysphoria (in which the social dynamic that we experience with people is ill-fitting), and self-identification (the inner core of who we are and the face we need to present to the world).  Each of those can vary in degree, and trans individuals can experience an emotional, psychological and/or even physical distress and anxiety about their body.  Living as the gender we identify with will often alleviate the social dysphoria and self-identification conflicts… only surgery addresses the body squick.

Body dysphoria is not always a conscious thing, but can be experienced as a discomfort or aversion to the genitalia, or a sense that those parts are out of place and don’t make sense to be there.  At the most extreme, this aversion becomes even violent, driving a person toward self-harm or self-destructive behaviour.  For people who experience it less severely, it can be a discomfort toward sexual intimacy in general, or a feeling of being out of place, without being completely clear on why.  Obviously, in these situations, it makes sense to align the body with what a person understands that they need to be.

At the lower end, the stress may not be as urgent, although a sense of closure might still be needed.

Not everyone experiences this.  Sometimes transition alone, minus surgery, is enough to resolve a person’s dysphoria, while other factors pose more significant reasons not to have surgery.

Non-operative trans women are sometimes considered button-pushing because they challenge the traditional trans narrative (there is often an exception made for trans men because of the limitations of phalloplasty and metoidioplasty procedures), in the same way that some bisexual people are unfairly seen as a challenge to the “born this way” narrative of sexual orientation.  The idea that we are fixing a predominantly medical condition seems undermined by the existence of people who don’t want to completely “fix” their bodies through surgery.  And yet, individuals exist who genuinely need to transition and live as their identified sex, but don’t urgently need or want GRS.

In transsexual culture, there seems to be this perspective that all roads lead to the holy grail of GRS, and that after one has the surgery, one has “arrived.”  Part of the reason that so many post-operative trans women and trans men leave the community is because once they’ve reached that point, the weighty discussion about GRS is no longer relevant to them.  The GRS-heavy direction has also tended to exclude non-operative and other trans people, because of the implication (intended or not) that they “must not be real” if they choose not to pursue surgical methods.

Yet GRS was only ever supposed to be one step toward self-resolution.  It’s neither all-completing, nor is it always a final endpoint (and this calls for a discussion of post-traumatic / minority stress), although it does have the ability to bring closure when that body distress exists.  By comparison, cissexual (non-trans) women never stop discovering what it means to them to be a woman; cissexual men likewise.  One does not “arrive” simply from the flick of a scalpel.

The basic reality of the trans condition is that our bodies do not define us.  If we allowed that to happen, we’d have never been able to start a transition — we would still be living in the misery and shame of having to live up to everyone else’s expectations.

The trouble with a heavy (or exclusive) focus on GRS as the “endpoint” of our transition is that we can become so intent on becoming “wholly” female or “wholly” male that we abandon, hide or feel ashamed of characteristics and histories which make us truly unique, perhaps instead embracing stereotypes.  It’s important that surgery does not become a case of simply trading one mask for another.

The overarching focus on surgery also does people an injustice, as it means that we fail to talk about bodies, hygiene issues, sex, the down-sides of post-operative care, and those things that we fear might cause a person to stray from the One True Path™ of GRS, or have doubts.

And sometimes –oh, not for everyone, but sometimes — non-operative-by-choice trans people arrive at a point of personal resolution from transition alone, and find that they can take pride in how unique they’ve become.  That perspective is hard-won.  It’s a shame to bury it.  Once in awhile, it’s important to embrace one’s uniqueness, and take pride in it.

Anyone who fails to understand this needs to take themselves out of the comfort zone of their own experiences, for a moment, to remember that one size rarely fits all.  Because the non-operative word is not “sorry.”

In the end, we are who we need to be.  Nothing else matters.

(As I was wrapping this up to post, Helen at en|Gender pointed to Non-Op.  For those who want to know more, it looks like an interesting resource.)

(Crossposted to The Bilerico Project)

2013
06/12
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Facts about trans youth

(Previously published in March 2012, and archived here for when it might be needed as reference)

Several in the Canadian media and the general public have become interested in trans youth.  It’s probably inevitable that many opinions and emotions have circulated as a result.  I’m concerned that some of the attention surrounding trans youth and kids is distorted by the (perhaps unintentional) omission of some important distinctions.

The medical profession has long recognized that gender dysphoria often first occurs in youth and childhood, and formalized this in the Diagnostic and Statistical Manual (DSM-III) in 1980 with a specific diagnosis for adolescents.  Treatment at that time often took the form of aversion-type therapies, but because these seemed to result in increased distress and self-harm (and not unusually transition in adulthood, anyway) it became necessary for that treatment to be rethought.  As years passed, it became increasingly obvious that when there is a strong gender identity issue, undergoing puberty to become a sex that one does not feel is appropriate to them can have a tremendous negative toll on a youth’s emotional well-being.  That puberty is also accompanied by major body changes, some of which could be impossible to overcome in adulthood, if that person inevitably transitions.

It’s important to recognize that the process for trans youth that I’m speaking of is not “sex change” and surgery.  This is often the conclusion that people jump to, but the reality is that newer treatments merely delay puberty until it is certain whether further changes like hormone therapy must be undertaken… typically after age 14.  German singer Kim Petras is thought to be the first youth to have undergone surgery at the age of 16, in 2009.  Since then, a youth in the U.K. has done so as well, and there was an unconfirmed rumour that someone in Europe had full GRS at age 14, but surgery at this age is very rare, if it occurs.    By the time this decision is made, a teen has typically had several years of living as their identified gender to determine if the decision is right for them.

Youth transition does not start simply because a child wants to crossdress on occasion or because they like dolls or trucks.  It happens when there is a strong and persistent identification that clearly indicates that there is something deeper than the usual experimentation phase which most kids go through.   If a child or youth exhibits a clear and persistent identification to express themselves as a gender contrary to their birth sex, in an obvious 24/7 manner, then arrangements are made to allow the child to live accordingly.  Although this social transition and accommodation in schools is gleaning much of the attention, the fact is that accommodation is really not a new phenomenon.

What is new is the use of puberty-delaying drugs, which is credited as having been pioneered by Dr. Norman Spack, at the Children’s Hospital Gender Management Services Clinic in Boston, in 2007.  If accommodation proves to be an appropriate way to alleviate emotional distress, parents and doctors might then consider pharmacologically delaying the effects of testosterone or estrogen which would otherwise typically trigger puberty.  Even at this stage, everything is reversible, in the event that a youth changes their mind.  It isn’t until hormone therapies are started that changes occur, and that generally happens after there has been much time to consider the consequences, and the youth is able to make a mature and informed decision.

This process is undertaken carefully, with a desire to approach things in a balanced way that neither encourages someone to follow a path if they don’t need to, nor waits until a self-destructive event occurs to prove necessity.  Even so, Dr. Spack states that nearly a quarter of his patients have already engaged in serious self-harm before coming to him.

As these stories break, it is sometimes alleged that parents and medical professionals are participating some kind of agenda which might influence youth to become trans.  Yet the objective of transition is to do what is necessary in order for a person to be at peace with themselves — sometimes that doesn’t include surgery, and doesn’t necessarily follow a specific formula, but is for the individual to determine.  Likewise, trans-inclusive equality and anti-bullying education does not “encourage” someone to become trans (unless they’ve already been experiencing a gender identity conflict in a persistent way).  Instead, it acknowledges in an age-appropriate way that trans people do exist, and are deserving of the same respect afforded to anyone else.  This is for the benefit of those trans youth who do exist — either openly or in hiding — and who need to know that they are not alone, nor are they “freaks” of some kind.

The same is typically true of parents and medical professionals, who usually don’t come to a decision to assist a child to transition very easily.  Parents and doctors who form a transitioning youth’s support network ARE very much thinking about the needs of the child when they make that wracking of a decision.

National Public Radio (NPR, a semi-public broadcaster in the U.S.) previously compared aversion and affirming practices.  People wanting to know more should read the contrasting accounts told in this piece.

(Crossposted to Rabble.ca)

2013
06/12
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Right-Wing Group Claims Trans Human Rights are a Plot to Normalize Pedophilia.

It has long been a practice of American far-right spokespeople and organizations that when sensationalistic rhetoric starts to fail, rather than try to polish it up and make it look more convincing, they often switch to something more sensationalistic and absurd, as a way of getting attention and scaring folks. The thinking seems to be that the public isn’t interested in anything beyond the tl;dr headline / soundbyte, so if something is said often enough and assertively enough, people will think it to be true.

Canadian far-right spokespeople and organizations are usually craftier, but when they aren’t, it’s revealing.  It demonstrates plainly just how much hate exists, just how irrational a form it can take, and just how impervious to logic and truth it can be.

And I can only guess that it is because of American far-right inspiration that Gwen Landolt of REAL Women of Canada has switched focus from bathroom fear to alleging that the trans human rights bill is really a NAMBLA plot to normalize pedophilia.

REAL’s own action alert insinuates:

Why, then, has this transgendered bill been placed before Parliament?

The answer appears to be that the bill is intended to be interpreted by the human rights tribunals and the courts in order to extend its reach to a number of other problematic sexual activities, including pedophilia.  That is, the broad definition of the expression, “gender identity”, included in this bill, will eventually have to be interpreted by the appointed human rights tribunal and courts to determine the meaning of these words.  This intention was confirmed by MP Randall Garrison, who introduced the bill, when he stated in the homosexual newspaper, Xtra (June 5, 2012), “Once gender identity is in the human rights code, the courts and human rights commissions will interpret what that means.”

Randall Garrison’s comment was actually made in reference to the controversial decision to drop “gender expression” from the bill, opening up concerns that only some trans people (i.e. those who medically transition) will be covered, as well as fears that failing to include gender expression could result in it being designated as separate and not covered, and of lower priority to policies based on physical sex.  For trans people, the latter could take the form of “I didn’t fire him because he’s trans, I fired him because our dress code says if he has a vagina, he’s supposed to wear a dress.”

In an interview with the equally radicalized LifeSiteNews, Landolt takes the insinuation further:

Landolt said that a movement already exists that is lobbying western governments to enshrine adult sexual activity with children as the next “sexual orientation”.

The North American Man/Boy Love Association (NAMBLA), a prominent pedophilia advocacy group, exists to “end the extreme oppression of men and boys in mutually consensual relationships”…

Landolt’s argument, unsurprisingly, stems from American far-right groups’ wide interpretation of “sexual orientation,” used to oppose the possible inclusion of that characteristic in human rights legislation.  This can be traced to a 2009 olympian feat of spin from the Traditional Values Coalition, (who curiously no longer host their own report on their own website), claiming that the thirty paraphilias included in the Diagnostic and Statistical Manual (DSM-IV) from the American Psychiatric Association (and which include things like pedophilia, voyeurism and necrophilia) can all be considered “sexual orientations.”

To be fair, NAMBLA has apparently also tried to argue this, themselves.  But this argument failed in 2009, both because it strained reason, and because it also failed to take into account important considerations like mature, informed consent.  It has also failed to materialize in the actual application of laws that already do include sexual orientation, like Canada’s human rights laws.

The way that REAL has tried to retool the “30 sexual orientations” argument has led some to assert that the organization and its figurehead are deliberately fearmongering.

REAL Women of Canada presents itself as “one of Canada’s leading women’s organizations,” but has for decades has been directly opposed to feminism and womens’ issues that they find theologically offensive, such as abortion, contraception, sex work, affirmative action and even unions (which have driven several of the gains that women have made in the workplace).  REAL  stands for “Realistic, Equal, Active, for Life,” and doesn’t discourage women from working (that’s not an economic possibility for many families, anyway), but has a mandate that allows it while still favouring homemaking and idealizing domesticity where possible (and don’t get me wrong, I respect women who are dedicated to their families: however, that is not the only place for women in society).

REAL is an NGO in special consultative status with the Economic and Social Council of the United Nations, and has regularly used this status to stymie international initiatives to better the lives of women, if those initiatives include reproductive rights, LGBT rights, feminist objectives and more.  They have acted as legal interveners on nearly every major social issue that has come before the high courts, including a 1993 attempt to prohibit abortion, the 1999 ruling that gave same-sex couples the same legal and economic rights as opposite-sex couples, the legal battle over whether spanking was child abuse, a court decision on whether safe injection sites could be legalized, a few different cases where they attempted to establish legal personhood for the foetus, and are currently acting as intervenors in the Supreme Court’s hearing on the sex work ruling from Ontario.  REAL Women of Canada feigns support for equality for women, while asserting that being a homemaker is a woman’s ideal calling, claiming that “the rights of men… have been marginalized while feminist special interest groups have taken center stage in Canadian policy,” and even supporting the abolition of divorce.  Because it’s easier for far right conservatives to oppose womens’ rights and needs when they can point to women who do the same.

Gwen Landolt is famous for apologizing to the world on Canada’s behalf when Canada legalized same-sex marriage.  Now, Ms. Landolt is attempting to retool the “30 sexual orientations” argument as a way of opposing extending human rights protections to trans people, in Bill C-279.

That bill does, by the way, provide a definition for gender identity:

2. (2)”In this section, “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.”

Have fun twisting your brain into a pretzel trying to find a way in which that could be interpreted to include pedophilia.

2013
06/10
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C-279: First Hour of Second Reading Debate, Tues. April 16, 2013

The gender identity-specific human rights bill C-279 had its first hour of Second Reading debate on Tuesday April 16, starting with an extensive speech by Senate sponsor Grant Mitchell.  The full Hansard is online, and I’ll repost his speech below the fold.  There was one interesting little exchange after the speech began which went like this:

Hon. Pierre Claude Nolin (The Hon. the Acting Speaker: Honourable senators, it is now six o’clock. Is there agreement that I do not see the clock?

Hon. Senators: Agreed.

The Hon. the Acting Speaker: We do not see the clock. Senator Mitchell, please continue.

And then Second Reading continued for another half hour.

Bill C-279 is scheduled to have its second hour of debate at Second Reading this Tuesday, and then it will be up to Conservative Senate majority leader Marjory LeBreton whether to allow the bill to go to a vote.  If it passes that, it goes to committee for review and possible changes.  If changes are made, the bill would need to return to Parliament for another vote of approval.  If not, the bill proceeds to Third Reading stage, two hours of debate and then, majority leader willing, a final vote.  Senator Mitchell hopes to have the process completed by June.  He tells Xtra:

“We’re told that the Prime Minister will prorogue in the fall and bring in a new throne speech,” Mitchell tells Xtra. “When you prorogue, everything is more or less back to square one. It would start all over again.”

His speech follows: Read more

2013
04/20
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C-279 Passes Third Reading (Hansard)

C-279 passed Third Reading, on a vote of 149 – 137.  Aaron Wherry gives the early breakdown:

“Randall Garrison’s bill was supported by the New Democrats, the majority of Liberals (Judy Sgro and John McKay abstained), the Bloc Quebecois, Bruce Hyer, Elizabeth May and, by my unofficial count, 17 Conservative MPs: Erin O’Toole, Bernard Trottier, Terrence Young, David Wilks, Laurie Hawn, Michael Chong, Chris Alexander, Shelly Glover, Kellie Leitch, Cathy McLeod, Deepak Obhrai, Gerald Keddy, Jim Flaherty, John Baird, James Moore, Lisa Raitt and John Duncan.”

Before the Third Reading vote, there were three votes on clusters of amendments:

  • Amendment cluster one, Division no. 642 (defining Gender Identity as per the first half of the Yogyakarta definition): 152 to 134.
  • Amendment cluster two, Division no. 643 (dropping gender expression, and adding classes that have already been added to human rights legislation since the bill was originally drafted): 148 to 140.
  • Report Stage, Division no. 644 (concur the bill in with the amendments): 150 to 137

If you’re wondering how your MP voted on the amendments, today’s Hansard is up.  No one paired in any of the votes (so in answer to one query, no, Justin Trudeau didn’t pair to make up for not being present), although there were some abstentions from the votes on amendments. Earlier in the day, Rob Anders tabled the notorious poll / petition which he actively solicited responses for through his website:

“Mr. Speaker, I stand today to present, on behalf of thousands of people who sent these to my office, petitions in opposition to Bill C-279, otherwise known as “the bathroom bill”, that would give transgendered men access to women’s public washroom facilities. These constituents feel that it is the duty of the House of Commons to protect and safeguard our children from any exposure and harm that would come from giving a man access to women’s public washroom facilities. I present thousands of signatures on behalf of the riding in Calgary West, and I know that there are many others that have gone to other members in this place.”

The votes at Third Reading are as follows: Read more

2013
03/21
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Intersex Conditions within the Transsexual Brain / Why “Born This Way” Is Not the Point

A bit of point and counterpoint here, to provoke some thought.

I thought this portion of a lecture given by Robert Sapolsky at Stanford University, given in 2010, would be worth posting for folks who found this blog recently, and/or aren’t familiar with some of the medical discoveriess since the late 1990s.  It gives a very quick overview of some of the developments that have been happening in studying transsexualism.

This comes via Transadvocate, and h/t Zoe Brain.

As a counterpoint, I was going to link to an article I wrote called Why “Born This Way” Is Not the Point, only to discover I’ve apparently never archived it on this blog (either that, or I’ve written so much that I’ve lost the ability to keep track of it all).  So here it is.

Why “Born This Way” Is Not the Point

In her anthem coming soon to an ear near you, Lady Gaga asserts that whether “black, white, beige, chola descent” or “gay, straight or bi / lesbian, transgendered life,” we should all be proud, because we’re just “Born This Way.”  The song was unquestionably well-intended, but there is a danger in basing the acceptance and validity on whether or not characteristics can be attributed to an inborn trait.

“Born This Way” is the inevitable product of an ongoing debate where legitimacy hinges on whether or not something is biological and intrinsic, or perceived to be a life choice.  For those of us who are trans or queer, the far right version of the birth versus choice narrative claims that we are trans, lesbian or gay purely by choice. Underscoring this is the implication that if something is based on choice, then it is not something the right needs to accept or respect.  From the perspective of someone who is part of both the trans and larger lesbian / gay / bisexual / trans (LGBT) community, I understand when we react to this debate to point out that we never chose to be as we are, and that it’s not something we can switch on or off like a light.  But doing so misses the point entirely.

There is certainly reasonable precedent to believe that biology is a factor in shaping LGBT people.  In the case of transsexuals, a growing volume of science since the mid 1990s has demonstrated frequent and repeatable higher-than-typical occurrences between some genetic characteristics and transsexuality.  Brain structure studies have yielded results in which transsexuals’ brains far more often resembled those of their identified gender than their birth sex, even though there is still wide-ranging debate on how much difference that really causes between men and women.  And research into phenomena like phantom limb syndrome has uncovered the likelihood of the brain having a “body map,” which has been proposed as an explanation as to why transsexuals strongly believe that their birthed sexual characteristics aren’t what they’re supposed to be.

Yet something that bothers me (and isn’t mentioned much in the quest for biological legitimacy) is that clear proof of a biological origin would not only fail to convince those who hate LGBT people, it is also not the holy grail it’s made out to be.

There is ongoing debate about how much of human behaviour stems from biology, how much from conditioning and socialized expectations, and how much from choice.  It’s probably not a good idea to dismiss any of the three.  Although they are vastly different from being LGBT, Bipolar disorder and some forms of autism have been demonstrated to have some form of biological causation or linkage, so there are certainly precedents.  So we play the opposite response: “it’s genetic.”  Well, maybe it is, at least in part, but neither chosen lifestyles nor biologically-driven identities of themselves validate or disqualify value in a human being.  In the long run, we might not exactly be comfortable with the implication of imparting all things biologically-connected with legitimacy.  Imagine a finding in which pedophilia is shown have some genetic trigger.  Certainly, many predators describe a compulsion they feel is intrinsic and beyond their control, so it’s not unthinkable that there could be a biological component.  But it would be repulsive to excuse the molestation of children for this sort of reason.  And at that point, consistency fails.

So biological causation only proves that we exist.  We cannot depend on it for rights or to change hearts and minds.  We cannot rely on it to find pride in our lives.  It’s fascinating, marginally validating, but it does not provide the standard against which we measure ourselves as humans.  Biological predestination is a poor measure of who is entitled to human rights or whether or not someone has a legitimate right to be.  We recognize that people deserve respect, freedom, access to employment and services, and to be treated as equals regardless of any disability, poverty, class, body image, level of education, faith and several other factors that are not inherently predetermined.  The “choice invalidation” argument seeks to undermine far more than the acceptance of LGBT people.  Discrimination does not occur purely because of the colour of someone’s skin — rather, colour is one of many indicators that are used to trigger presumptions about an individual’s culture, lifestyle, behaviours and tendencies.  You hear this excuse all the time: “I have nothing against them, but you know what they’re like….”  Prejudiced people are blind to their prejudice because they’ve seduced themselves into believing that what they’re reacting to are associated choices and not really the trait itself, when they’re acting on the unspoken and often inaccurate smorgasbord of inventions that go with it.  When we insist on biological validation, we are playing along with an ideology that makes soft excuses for bigotry, rather than confronting the impulse to discriminate.

And for that matter, how much of the “born this way” argument boils down to people feeling like they have to make excuses and seek societal forgiveness for existing, rather than pointing the finger back at bigotry?

The concept of human rights, of course, was supposed to address the extent to which hatred between diverse human communities manifested.  Human rights legislation was a response to the dramatic and horrific manifestation of hatred during the mass genocide that occurred in Nazi Germany — but it also recognized that mass extermination is not a new phenomenon, and that modern society cannot be fooled into believing that it would never occur again.  The principle is that all people should be treated as equals, but we know from experience that if we leave it up to everyone’s discretion, enormous imbalances happen.  Even with human rights legislation, there are glaringly different ways that privileged and non-privileged classes are treated.  So human rights legislation is structured in a way that identifies various classes that should not be used as bases to include or exclude — to accept or to hate — people.  The classes are, of themselves, neutral (for example, “race” covers white people as much as anyone else), so contrary to another modern myth, there are no “special rights.”  It becomes the role of the judiciary to balance the rights of the minority with the rights of the majority.  In an ideal world, of course, we would all realize that all are created equal, but in practical reality, reminders have to be codified into law, because there is always disagreement about who should be treated fairly and what the limit to fairness should be.  At the furthest extreme, without rights legislation requiring the legal system to take occurrences seriously, it becomes common for people to excuse violence or murder of minorities as being somehow justified or inconsequential, thereby devaluing the lives of the victims.

At some point, we need to realize that risk-conscious, responsible, respectful and genuinely consensual behaviour need to be the standards by which we measure people — by their actions, rather than any assumptions associated with any traits… even those that are not necessarily intrinsic, genetically-determined ones.

2013
03/14
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Gender Diversity
Sex and Gender Minorities
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Trans
Transsexual
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C-279 amendments made, in afternoon of impassioned speeches.

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:

2013
03/08
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C-279: To amend or not to amend?

… aaaaaaaaaaaaaaaaaaaaaaaaaaand we still don’t know what Bill C-279 is going to be when it’s voted on at Third Reading.

The bill, which proposes to add trans people to human rights legislation, had an hour of debate at report stage.  Randall Garrison requested that amendments be added to the bill, and the Speaker decided that they should be debated and voted on by the House, prior to Third Reading.  This was the first hour of that, with a second to follow.  Consequently, we still didn’t get any yes / no answer on whether those changes would be made.  Garrison anticipates that the changes are needed in order to have enough multi-party support to pass the bill.

For folks confused by mention that there are nine amendments, that means that the text of the bill is amended in nine places.  What it accomplishes is to drop “gender expression,” to define “gender identity” (details and my take on those changes here), and to correct it by adding some classes that have already been added to existing legislation since Bill Siksay first composed the text of this bill (“marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”).

Interestingly, the Parliamentary Secretary to the Minister of Justice (Robert Goguen) and two other Conservative MPs (Dan Albas and David Anderson) cite four examples to claim that inclusion is not necessary.  They all avoided talking about outcomes, by using phrasing like “the court dealt with the complaint[s] using the ground of sex.”  There is a reason for this, because one was ultimately decided against a trans woman in the B.C. Court of Appeal (Nixon v. RR), and another may have been arbitrarily ignored by a direct order from the Harper Government (Kavanagh v. Correctional Services of Canada)… although there’s some uncertainty about what policy is actually being practiced in the correctional system, right now.  Ironically, half of the Conservatives’ own examples actually demonstrate why clarity is needed.

Several commentators referred to the testimony of representatives of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal, acknowledging that technically, transsexuals were already read into existing legislation.  Randall Garrison correctly notes that they (particularly Ian Fine) did so reluctantly, while also stating that clarification would be helpful.

MP Anderson kept falsely characterizing the bill as “expanding the definition of sexual orientation to gender expression and to gender identity.”  Anderson (who showed up to be part part of the attempt to filibuster the committee proceedings, despite the fact that he was not a voting member of the committee) had his speech cut short by the end of session, and he will be continuing when debate resumes.

Highlights and lowlights of the debate can be found in the Hansard (audio, starting after 4:30), but here are some excerpts:

Randall Garrison:

… As we have just heard, the package of amendments is quite complex, but it really only does two things. Nine amendments are required because of the complexity of legal drafting, but again, only two things are happening here.

The first is that the bill adds the definition of “gender identity”, which we just heard the Speaker read out in the House. The second is that the term “gender expression” is removed from the bill.

I hope this reassures those members who wanted a somewhat narrower bill, a bill that was somewhat easier to explain in public, and a bill that might rule out some of the more extreme concerns or fears that some people had. I believe that if we approve these amendments, we will have that bill in front of us.

There were some concerns about “gender expression” being less well defined in law and that this would somehow open the gates to abusive practices on the basis of the gender identity bill. I will be very frank and talk about the main one of those, which was the concern that somehow people could use this bill to gain illegitimate access to public bathrooms and change rooms in order to commit what would always be criminal acts of assault.

I contacted the jurisdictions in the United States that have had these provisions in place for a very long time. Four of those did reply, those being California, Iowa, Colorado and the state of Washington. All of them reported the same thing: there have been no instances in any of those states of attempts to use the protections for transgendered people for illegal or illegitimate purposes—no incidents, zero, none.

There have been concerns on the other side from members of the transgendered community or those who have gender variant expressions that they wish to carry out. To them I would say that this is a somewhat narrower bill, but we believe that it preserves the essence of the protections we are seeking here, which is that transgendered and gender variant persons should have the same rights as all other Canadians.

If these amendments are adopted, it would be a somewhat narrower bill than that passed by the previous Parliament.

I have to take a moment to pay tribute to former MP Bill Siksay, who brought that bill forward through the minority Parliament. However, the bill died on the order paper of the Senate as a result of an election call.

If we approve these amendments and we go on to adopt this bill, what is it that we would actually be doing here? I am arguing that we are simply completing the Canadian human rights agenda. This bill would create no special rights, no additional rights and no unusual rights, but would simply provide the same rights, no more and no less, to transgendered and gender variant Canadians.

Another argument against the bill has been that it is not necessary to have it, that somehow people are already protected in Canada. I have a legal answer to that, and then I have a practical answer to it.

The legal answer is that we heard from the Canadian Human Rights Commission in committee that it would be very useful to clarify the law by having this explicit mention of transgendered rights in the Canadian Human Rights Act and in the hate crime section of the Criminal Code. It is true that in the past the Human Rights Commission and the tribunal have decided cases involving transgendered Canadians on the basis of sex discrimination; however, as they have pointed out, that is no guarantee that all future cases would meet the test of sex discrimination. Therefore, in order to make sure that all the possible issues that might arise are covered, it would be better to have an explicit statement in both the Canadian Human Rights Act and in the hate crime section of the Criminal Code….

Robert Goguen (Parliamentary Secretary to the Minister of Justice):

… As I have said, the ground of sex is already in the act and has been used to address instances of discrimination against this group. The addition of gender identity is therefore unnecessary.

However, if its addition is not purely symbolic, as the sponsor tells us it is not, then we would ask ourselves this. If this ground were to be added to the Canadian Human Rights Act, what sorts of new complaints of discrimination will be brought before the Canadian Human Rights Commission and Tribunal? How will employers know what kinds of workplace behaviour and expression would be prohibited? The answers to these questions are not clear to me and they are questions that we should carefully consider…

Irwin Cotler:

… As I mentioned with respect to the exclusion of “gender expression”, it was initially my preference that both terms remain in the bill. Again, I am cognizant of the possibility that even in the absence of “gender expression”, the term “gender identity” might, through case law and through an appreciation of travaux préparatoires, eventually come to encompass part or all that would have been protected by the former.

… To start, they [opposing Conservatives] came with their own amendments, including a handful that only reinforced the status quo formula of “sex” and “disability”. Then there was a frivolous amendment exempting official Canadian sports authorities from the provisions of the bill, as if to contain some fictional mass of men trying to compete in women’s sports, and vice versa. Finally, there was an out-of-context amendment that sought to ensure that no part of the Canadian Human Rights Act could infringe upon the rights of aboriginal peoples. While I firmly believe that we should only enact legislation that is mindful of the rights of Canada’s aboriginal peoples, I found there was no reason to codify this specific protection into the act, as the charter supersedes any statutory act, which is clearly set forth in section 52 of the Constitution Act. It appeared that this, too, was a diversionary item…

Kennedy Stewart:

… Passing the bill into law would be an important step forward for Canadians expressing themselves as transgendered. Trans people have regularly been shown that they are denied things that we all take for granted, such as adequate access to health care and housing, the ability to obtain or change identification documents, access to washrooms and other gender stations, as well as very fundamental rights such as the ability to exercise the right to vote and to acquire and maintain meaningful employment…

… We need to do this in the spirit of the anti-bullying pink shirt day that we are seeing here in Canada. Wearing a pink shirt is a good thing. It shows that Canadians care. However, this is an opportunity to actually do something concrete, to change the laws of our country to make sure that people who are facing discrimination are no longer discriminated against, or if they are, that they have remedy within our legal system, whether it is the Canadian Human Rights Act or the Criminal Code, in order to make sure that they obtain justice and are able to pursue their lives as they see fit.

What we need to take into account also is how the trans community is suffering under the current circumstances. Worldwide since 1970, 717 trans people have been reported as murdered. However, this of course is a severe undercount, because many countries do not collect adequate statistics in this area, nor do they correctly record violence against the trans community….

Dan Albas:

… By adding the proposed definition for the term “gender identity” in Bill C-279′s preamble, it remains unclear what situations it would cover and how the Canadian Human Rights Tribunal, or the criminal courts and the sentencing judges, would interpret these terms. This gives rise to the potential for subjective interpretations. These interpretations do not provide clarity nor certainty. In the absence of having greater certainty and a clear definition, it is important to recognize that existing laws already do apply to discrimination against transsexuals…

Mylène Freeman:

… Dr. Shuvo Ghosh, who is a trailblazer in this field is a pediatrician, a developmental-behavioural pediatrician to be specific, and an assistant professor at McGill University and at the Montreal Children’s Hospital, noticed that he was seeing more and more transgendered children and decided that he would open a clinic to specifically support their needs. It is the first one of its kind, in fact. I am very happy and proud that it is in my province of Quebec and so close to my home in Montreal.

Dr. Ghosh wrote me this letter to share with the House:

 (quoting) To the Honourable Members of the 41st Parliament of Canada:

Last year when Bill C-389 passed its third reading in the House of Commons, many questioned the wisdom of enshrining “gender identity” or “gender expression” in the Canadian Human Rights Act and whether this was redundant given that “sex” is already protected. With the NDP’s Private Member Bill on Gender Identity now up for debate, these questions are once again being raised. As a paediatrician who cares for gender non-conforming children, adolescents and their families who are part of the roughly 1-2% of all Canadians with differences in their gender expression, I would like to highlight the main reasons why this issue is crucial for Canadian society.

While “gender identity” and “sex” are related terms, they are no synonymous. The most obvious example of this dichotomy is in children born with medical intersex conditions who identify more with one gender of another, or rarely, neither or both; but their physical sexual characteristics frequently do not correspond with their identity. Are we to conclude, then, that they fall outside the protection of the Human Rights Act because their “sex” is indeterminate or incongruent with their behaviour? Youth with any variation in their gender identity…have been shown, in numerous studies and in various clinical databases, to be the group most vulnerable to extreme and violent bullying, depression, anxiety, and suicidal thoughts.

Adolescents with gender variance are 14 times more likely to attempt suicide than any other sub-group of teens, including other recognized and protected vulnerable populations. They are also the most likely to be rejected by peers and family members, and often lacking even any legal recourse to simply “be” who they are, frequently enter a spiral of self-harm that can lead to substance abuse and alcoholism. This heartbreaking distress is seen and reported even in children as young as 4 years old who simply recognize that their gender identity does not correspond with their anatomic sex, and have asked their parents to help them die. So many families of gender variant kids experience severe discrimination, societal rejection, and serious psycho-social difficulty. This translates to higher levels of divorce, greater school and emotional problems in siblings, and severe marginalization. These families need their children to be recognized, included and protected, just as any family does.

Isn’t it fair for Canada to stand up and to stand together, to say that our most vulnerable children and teens deserve to be specifically protected for the very characteristic that makes them vulnerable? Do we as a nation not have the responsibility to enshrine gender identity in the Canadian Human Rights Act? It is imperative. The medical evidence supports it; and these young Canadians, slipping through the cracks of our society, deserve to have their tears of loneliness and rejection wiped away so that instead of living and dying in fear, they may grow up to share and contribute to this wonderful country in which we are so privileged to live… (still quoting)

David Anderson (Parliamentary Secretary to the Minister of Natural Resources and for the Canadian Wheat Board):

… The desperate attempt, I would say, by member for Esquimalt—Juan de Fuca to amend the bill shows that the bill itself is not adequate. The bill is just not up to the level it needs to be in order for anyone to support it in this House. The amendments to the act as proposed by Bill C-279 are largely symbolic and vague, and I would say that they risk introducing confusion to the law. I would suggest as well that the amendments he is making do not add anything to it.

The bill is not properly designed to remedy the supposed social problem that it is aimed at addressing, and I would argue that it is largely unnecessary as well. For those reasons and a couple of others, I will be opposing Bill C-279.

… I understand that the member is now starting to try to put definition into some of these things because he is afraid he is going to lose the bill, and I think that he should lose it. Expanding the definition of sexual orientation to gender expression and to gender identity in the Canadian Human Rights Act and the Criminal Code makes who and what is being protected even less clear than it is. If the member’s purpose was to clarify the existing grounds, which I would maintain is unnecessary, he could have proposed adding an appropriate definition to the Canadian Human Rights Act. He did not do that. He has come back lately with an attempt to do that, but it was not his intention at the beginning.

… I would suggest that even with the definition he is trying to add today, he probably is still thinking that hopefully the courts and the human rights commissions will define it. However, I would argue that it is inadequate for a legislator to proceed in this way.

If our role is to bring laws forward, they should be brought forward with enough content that the courts and commissions are not the ones who are defining what those bills are and what they say. I believe that is inappropriate. It is an abdication of our parliamentary responsibility to pass laws that would leave us in a situation like that. For parliamentarians to leave new and undefined terms to the courts and human rights tribunals, I would argue, is risky and irresponsible.

I also want to point out—and I think this is probably something that the member hopes will happen—that when the courts rule on these grounds, they usually assume that the old language was inadequate and that they should make new and broader interpretations and that such broader interpretations must be sought…

Previous records or notes:

2013
02/28
POSTED BY
CATEGORY
Canadian Politics
Gender Diversity
Trans
Transsexual
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