Canada’s Trans Rights Bill C-389 Quick Facts

This morning, Bill Siksay, the Member of Parliament who proposed Canada’s trans rights Bill C-389 reported:

“The Canadian Press Newswire is reporting that Justice Minister Rob Nicholson is appearing before the Justice Committee on C-389. This is not the case.

The Committee is going to go through the bill clause by clause for a short period of time at the end of their meeting this afternoon. They will not be hearing witnesses on it.

“It is expected that the Committee will send the bill back to the House of Commons for Report Stage and Third Reading. As soon as any further information is available, I will send out another update.”

Many thanks to Dale Smith for live tweeting today’s meeting and to A for being my ears.  There are no changes to the existing bill at committee level. Bill C-389 is now expected to move on to Third Reading and final vote — if it passes that, it will then go before the Senate for approval.  I don’t yet know the timeline.

Here is a bit of information about Bill C-389.  The following is my overview, and not an official one — in case of discrepancy between this and the Bill itself, obviously the Bill shall be taken as authoritative.

Bill C-389 proposes to add gender identity and gender expression to the Canada Human Rights Act and the Criminal Code of Canada hate crimes provisions.  It has passed second reading and goes before the Standing Committee on Justice and Human Rights soon before going to third reading and final vote in Parliament.

Here are some quick facts:

Gender identity is the gender a person identifies as, which may not always correspond with their physical sex.  Usually refers to operative and non-operative transsexuals.

Gender Expression refers to the way a person expresses their gender through dress, mannerisms, presentation and role.  Usually refers to non-transsexual transgender people, and can also touch on issues faced by cisgender (non-trans) Canadians who experience discrimination because of dress sense, mannerisms and other aspects of presentation that run afoul of the perceived “rules” of gender.

Q: Aren’t transsexuals already protected?
While it is true that there is implicit inclusion for transsexuals alternately under the category of “sex” or “gender” (depending on the wording of the specific Province in question), clear and unambiguous protection is important to be codified in law to avoid an unexpected overrule that would create a new contrary precedent.

Recently, US Supreme Court Justice Antonin Scalia explained “originalism” to an audience at UC Hastings College of the Law in San Francisco.  “Originalism” is a judicial belief that what matters is the original intent of the people who drafted the law, and not the current usage and practice of it.  He illustrated this by stating how he believed that references to “any person” in the US Constitution did not include women or gay men.  Originalism is not a concept that is unique to American law, and as the example shows, even high-placed authorities can give it credence.  As such, having an existing precedent does not always ensure that a judge will follow it, if they subscribe to a concept that runs counter to it.

Q: Would this conflict with the rights of other groups?
A: The role of the judicial system in human rights issues is ideally to interpret law in a way that is most equitable for the stakeholders involved, while also protecting those at a disadvantage.  In Canada, the law needs to accomodate up to the limit of “undue hardship,” a caveat that prevents any one protected class from trumping another unreasonably.  It then becomes the court’s duty to determine when undue hardship occurs, and balance the rights of those involved.

Limiting or excluding protections by writing exemptions into legislation is not a solution either, as it creates an unfair imbalance automatically, regardless of whatever the particulars might be of a given situation.  The virtue of having a court decide as opposed to creating an absolute in law is that situations can be examined in context.

And ultimately, the legislation that Bill C-389 proposes to amend does not stipulate what peoples’ attitudes or beliefs toward protected groups should be — it only calls for fair treatment in the eye of law.

Q: Would this enable predators to access washrooms in order to prey on women or children?
A: The reality is that transsexuals have used restrooms in accordance with their gender identities since transition was developed in the 1950s and 60s, with no such pattern of troubles ever taking place. It’s possible that predators exist in any community, but there is nothing particular to transsexual or transgender people that predisposes them to predatory behaviour any more than in any other group.

Additionally, the bill says nothing about washrooms — illegal and/or inappropriate behaviour remain illegal and/or inappropriate.  Trans predator rhetoric echoes the same kinds of claims once used to create panic about gay men and lesbians or other historical “bogeymen” used to spread fear of racial and cultural groups, and has no basis in fact.

To support this bill, you can:

  • Express your support to your Member of Parliament
  • Here is a letter you can download, fill in the blanks and mail in (postage to Parliament is free) to show your support.

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