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.)

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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).

Employment

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.

Marriage

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.

 Parental Rights

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.

Canada’s HRC?

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.

    • Erin
    • January 20th, 2008

    I know something needs to get done. I know that something got started in Edmonton back in October of last year. At least I think that was what the town hall meeting was about. I did not get there.
    Was that what it was about. Mercedes, do you know who can carry on with that process? Anyways I am willing to work with GLB in Edmonton. BTW I really like your new website.

    • dentedbluemercedes
    • January 20th, 2008

    You know how when you push a whole bunch of powerfully-charged magnets together and then let them go, they explode out in all directions? That’s kind of what happened at the Town Hall meeting. It didn’t accomplish much, other than to allow a bunch of people gang up on the idea of developing further with the Pride Centre, right in front of a PCE board member. 😦

    In the months before I left, some things started falling apart behind the scenes. I won’t go into details, because some of the people involved and I have made amends now, but I think there’s still reverberations from that happening. Ace and Axcella are good folk for further developing the support groups, but they might still be at odds with each other. Karen, Dean and Carol would be excellent people to build an organization with (which is what I’d hoped to do), as they have organizational experience, contacts and that fire in the belly (it would also be valuable to have folks like Marni and Shae get involved, rather than have all the focus being TSes, but I think those are friendships that the community still needs to foster). Those people have been somewhat driven away by the divisiveness in the community, though (including the Town Hall), and somewhat divided amongst themselves because of the PCE issue (Karen’s on the board; Carol thinks there should minimal connection).

    The community is distrustful of organization, and resentful of anyone seeming to lead. I tried to educate myself on as much of others’ needs as I could, build consensus and keep everything open for input and was still accused of trying to control things. So anyone following will likely also have a rough path.

    We’ll have to see what tomorrow brings.

    • femme
    • January 21st, 2008

    As a whole and looking at the many different gains, a person who is transsexual or a person who is transgender is better off in Canada then the U.S.

    Canada has cops that are transsexual, is the first in the world to have a person of transsexual history to be a serving member of the armed forces(someone who transitioned with support there to boot).

    Federally via the CHRC people who are transsexual and working for or under the care and control of the federal government have the right to funded surgery.

    Three provinces fund surgery and a few fund partially.

    Ontario, Montreal, B.C., Alberta all have HR rulings protecting and upholding the rights of people who are transsexual. The rest of the other provincial H.R.C.s all have said they would also follow the lead of the Ontario, B.C. and NWT written human rights codes which protect people who are transsexual or transgender.

    There are several rulings from family courts in different provinces protecting the rights of the parent to continue equally parenting their child even after they begin transition. Mental health is not permitted as a grounds to deny that right unless it can be proven the parent is a danger to the child and themselves.

    A person on the provincial disability or welfare system does not need to worry about how they will afford their medication, not to mention all people need not worry about the cost of blood work or doctor visits, shrink visits since they are funded under the health care.

    To be honest the move to protect in the Canadian Human Rights Code would have little affect on most people in Canada since it would only deal with people working in federal institutions, that was what Siksay had put forward a few years ago as a private members bill. This new pmb will have very little chance since pmb, no matter who is in power, have very little chance of passing. Bills put forward by the party in power are those which pass.

    I agree with the basic wrap up about EGALE. They are slowly beginning to sit at the table with us but they have a lot to make up for before they will be fully trusted again. We shall see how the new leader, a woman, works out.

    Oh and then there is the police forces themselves which are either forced or taking it upon themselves to educate themselves about people who are transsexual or transgender. Ontario has a ruling which basically says police forces must begin training, but places in B.C. have been looking into this for a few years and do train their cops. There s discussion in Calgary about what will happen and how people who are transsexual or transgender will be treated/handled.

    Agreed also about the Nixon case.

    On the Montreiul issue, it was a good move to get rid of Montreuil who does step to a beat of a drum that only seems to benefit whatever feeling Montreiul wishes it to. Not a team player is an understatement. And the openly bashing of members of the TG community in an interview also didn’t bode too well.

    • dentedbluemercedes
    • January 21st, 2008

    Thank you for adding this information. One thing that I realize I lack is a collection of factual info about specific rulings (I tend to fare better with applied knowledge, I suspect), and plan to improve on that. I’ve found it difficult to track down any specific case info online, and will have to resort to finding a good library microfiche soon.

    You are right about Siksay’s PMB, in that it really does not change much on the surface. I do tend to have things in writing and never assume that implicit agreements or rulings are any guarantee.

    I should have said more about police forces, because I know they’ve been actively developing policies across the country. One area that they still lack is some specific policy on how transgender people are housed, which is still determined by genitalia. For those of us who are in-between, it might not work to house detainees with folks of the gender to which they identify, but there should be some stated protective policies made. Once again, I like things in writing. It’s a trust issue. 🙂

    I had thought that only Alberta funds GRS wholesale, and that for others, it was on a case-by-case basis — kind of iffy. Please correct me if I’m wrong, because that would be wonderful news.

    I don’t know Micheline personally other than she has been civil toward me in the past and I also respect some of her accomplishments. You may be right, and I didn’t mean to take a side in NDP vs. Micheline, but I also prefer to reserve judgement until I have clear reason to go one way or another.

    • femme
    • January 23rd, 2008

    Yes B.C. still is funding, in fact it was a H.R. case fought against the closing of their G.I. clinic, thereby ending funding and services that caused it to be re continued. Right now they have a double side approach. Ignore the men and only help the women though I know a few men who are fighting that.
    New Found Land also fund 100 percent, Manitoba up to 60 percent.
    Quebec funds it, that is if you can find a publicly funded hospital in Quebec that performs the surgery.
    I suspect in time Ontario will once again fund.

    On the matter of housing with prisoners who are transexual, you’ll find the Kavanaugh case with the Can Human Rights disagreeing on that front as it pertains to federal institutions. So the problem will be the provincially run ones, though my understanding is the person would be housed in P.C. instead of with women, in the case of women who are TS, or with men, in the case of men who are ts.

    • Jillian
    • May 9th, 2008

    Mercedes, Quebec’s Human Rights Charter includes the following three gender designations in the Harassment and Discrimination section: male, female, transsexuality.

    Here’s the link:

    http://www.cdpdj.qc.ca/en/human-rights/discrimination-harassment.asp?noeud1=1&noeud2=3&cle=2

    • Kimaya
    • July 20th, 2008

    Your article was quite good, but my opinion is simple, gender identity should be inclusive in the charter. At this point I’m 28, a trans woman, and kept down in society because of it (“like being black twice”-B.B.King).
    I get shunned from so many places because society demonizes the transgendered. At this point I want a better life and to not have to settle for crappy under the table, low wage jobs.
    I’m also an army brat, and have always had an interest in the military. If I ever decided outright that I wanted to enlist (if there is a homeland protection option), I would want to be treated like a woman to the full extent of what it MEANS, or at least just another uniform to train to DND standards, and DEFINITELY NOT a guy (that hurts me and peeves me off, honest).
    These changes are important, in order for trans people to survive “democracy” (bureauocracy?) and capitalism we need fundamental protections for trans people under the law so we are ensured to be equals and not treated as slaves and outcasts (i believe the word is “Dulut”).
    I’d love the right to join the military and still be myself.

    Peace

  1. Wow, this is really helpful information. I am currently doing some research for a paper I am writing. I found your site really useful, thanks!

    I see from the federal case law that most cases have to do with proving that discrimination actually took place. There is nothing that I came across referring to, say, the employer’s duty to accomodate, etc. It would be interesting to read about that. If you, Mercedes, or anyone has any information based on Canadian case law, it would be great to have it!

    Thanks again!

    • jessica butler
    • August 19th, 2008

    I to want to thank you for this web site, my name is Jessica Butler, I am a pre-op transexual. I have lived this way since jan 20th 2005 when i lost my job of 15 years with a company, simply because i chose to be truthful with myself and the world. I live in Nova Scotia, not exactly the best place for someone like me i must say, I have been trying to make changes to this reprehensible system that discriminates against people like me for a lil over 3 years now. In that time I have experienced many different instaces of trans hatred against my person including, refusal to hire me, refusal to provide me services from my health care system, refusal to provide services to me at certain venues and business, I face being laughed at, threatened, and i have been beaten near to death on 3 occassions, once by halifax police, that one was the worst, 4 of them beat the shit out of me, stun gunned me, while repeatedly refering to me as a man. Later i was thrown naked into a cell, no phone call, why should they, i am not human to these bastards! when i first came out to the world, I was sooo full of joy! I was bubbleing over with hope and love for this world, Now I am struggleing to keep going, depression is a constant battle, I don’t go out much anymore, it’s easier to stay home, I know I shouldn’t, I should be strong! but I am warn out, beaten down! I don’t tell this story to gain sympathy for myself, but maybe it might help someone else in some way, thank you.

    • Grey
    • November 4th, 2008

    Thank you for putting all this so clearly and concisely.

    • kristy willow
    • July 17th, 2009

    i am also grateful i found this site. i am 58 and now involved in the trans community in toronto. it has been almost a year but in that time i have come to realise that i do not fit my male gender nor do i fit a female gender. i am involved in a group that has helped me get to the point where i see myself as a transgendered two spirit. perhaps as time goes on this will change. i have always had a bit of a social fighter in me and my near future plans are to become very active. i have been looking for info on how to educate the HR department at work and plan on coming out totally there. this site has helped alot with information.

  2. If I remember correctly, the inclusion of “gender identity” in the NWT’s Humans Right Act was not a fluke. At the time, an organization called “Out North” (currently being revived due to the recent discrimination against a gay couple being refused housing soley based on the fact they are gay) was consulted. It was that organization that advocated for “gender identity” to be included in the Act. The GNWT did not object. Perhaps because they value human life regarless of gender or perhaps it was because at the time the marriage equality issue was before the Supreme Court of the NWT. Regardless of the reason(s), no one in the community batted an eyelash about the inclusion of gender identity in the Act. If anything, I remember people being proud and boasting about the fact that the NWT was the ONLY jusrisdiction in Canada that included gender identity in their legislation.

    To date, the Human Rights Tribunal in the NWT has not heard one case of discrimination based on gender identity. (knock on wood)

  1. February 2nd, 2008
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  2. October 26th, 2009
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