Status of Transgender Life in Canada
(Update 2013: I wouldn’t even consider doing a post like this now. But at the time this was written, few trans Canadians — at least outside Toronto and a couple other major centres — wanted to respond to surveys or be politically engaged in any way. In 2008, I tried to compile this to the best of my ability, voicing concerns that were raised in support groups and on message board — anything I was aware of at the time. It’s inadequate, under-representative and is in dire need of updating with survey-based information. I leave it in place because it does provide an introduction to some mostly transsexual-specific needs for people who are just starting to learn about trans issues. A note on context: this was written before “parental rights” came to mean the right of a parent to ensure their child wouldn’t be exposed to LGBT-inclusive anti-bullying education or things contradicting their faith — the context below refers to the right of trans people to parent, and to not be depriced of custody of kids simply because they’re trans.)
In response to some comments from curious folk regarding my article, “Transbigotry?” I thought I’d chronicle a bit about the current situation in Canada.
Hate Crimes Protection and Human Rights
Hate crimes protection exists somewhat unofficially in places, but combined with crimes against GLB folk, resulting in a situation in which there are often no statistics that can be sifted through specific to us. “Sexual orientation” was added to the Criminal Code in 2004, but at that time, the NDP motion (tabled by Svend Robinson) left transgender folks behind.
“Gender Identity” and “Gender Expression,” however, are not included in any Human Rights Charter in Canada, except in the Northwest Territories (NWT – and this inclusion was more fluke than anything, and has not been tested to my knowledge). In practice, however, human rights of transpeople vary based on different court rulings, in which inclusion is sometimes made based on alternate bases of “gender / sex” or “disability” (from the classification in the DSM-IV).
Protection in employment is governed by court rulings (which is also the same process by which Canadians acquired the right to same-sex marriage). In Alberta, there was a victory based on a read-in protection under “sex,” and this ruling has influenced some cases in other Provinces. I may be wrong, but I believe that Saskatchewan and Ontario have protective rulings, and likely other provinces as well. In B.C. however, in the case of Kimberly Nixon vs. Rape Relief, the provincial Supreme Court ruled that Rape Relief had the ability to discriminate with regard to Nixon volunteering, and noted among other things that transgender people are not specifically protected in the Human Rights Charter. This note may have been meant to draw attention to this fact and call for it to be addressed in a subsequent appeal, but when the case went to the Supreme Court of Canada, the court refused to hear it. Consequently, that the B.C. court ruling stands.
Same-sex marriage is recognized federally, so marriage versus new or old identity is never an issue. We have seen, however, how this victory has removed any vagueness that existed before, and most of us upon reflecting on this would tell Americans that the same-sex marriage battle is an important cause to support – especially when one starts looking at the mixed and troubling rulings made in various courts in different U.S. states.
These are also often determined on a case-by-case basis in court. There was one definite victory in Alberta, but also some losses in Canada, some even in the same province, subsequent to the victory. Much of the trouble arises from the DSM-IV definition of Gender Identity Disorder as a mental disorder. Vengeful spouses can still use this as a potent weapon before a judge, unless one has good representation which will educate judge and / or jury how GID will not detrimentally affect children.
The Drive for Clear Legislation
On December 11th, 2007, NDP Member of Parliament Bill Siksay (Burnaby-Douglas) tabled a Private Member’s Bill (C-494) that would add “Gender Identity” and “Gender Expression” to characteristics protected under the hate propaganda portion of the Criminal Code of Canada. An earlier Private Member’s Bill, C-326, proposes to add “Gender Identity” and “Gender Expression” as prohibited grounds of discrimination in the Canadian Human Rights Act. A previous version of C-326 was tabled in 2005 and died at the end of that parliament sitting.
Siksay’s Bill addresses the lack of explicit protection for transsexual and transgender people under the current hate provisions of the Criminal Code. It will also allow judges to take into account whether crimes committed were motivated by hatred of transgender or transsexual people when they are determining the sentence of an offender.
Many are doubtful of these Bills’ chances of passing under the spectre of a Conservative government, and activity with regard to these bills has been very slow. But it is a positive step, possibly inspired by the ENDA debate south of the border.
There is also some discussion that the newer NDP bill is a sort of face-saving measure, preceeding (only by a couple of days) the ejection of transgender activist Micheline Montrueil (who has won several legal precedents for transgender people in the Province of Quebec and in Canada) as a candidate for that party. The NDP describe her as being “not a team player,” while she has heard that other candidates and party members have voiced objections to being associated with her. This situation may call for some scrutiny in coming months.
In Canada, the primary LGBT organization is egaleCanada. Like the HRC in the U.S., there appears to be some GLB members’ resistence to trans issues, and its track record has involved a lot of transgender committee formations, disempowerments of those committees, and then the leaving of committee members twisting in the wind, taking the blame for the committee’s inaction and failure. To be fair, rampant division between transgender factions have clearly also been a factor. Unlike the HRC, however, some of this appears driven by members simply not understanding T-folk or knowing how to act on their behalf, and the bridges can and should be repaired.
It is my hope that egaleCanada and its transgender troubles can be rectified. But in the meantime, there is a dearth of any other national transgender representation, either trans-specific or LGBT. Some initiatives have been tried, such as TransAction Canada, Canadian Transsexuals’ Fight for Rights and other attempts that have seen nominal participation, support and / or funding. Transgender communities need to work toward greater consensus and unity in order to develop their own community and play better with the GLBT ones.
So while there are more protections in Canada than many states, the transgender communities in many ways lag behind those in the south, with the exception of a few tireless projects in select organized cities. This is where we need to strive harder.