(Previously offered to Xtra.ca. They did post a reply by Christin Milloy)
Xtra’s Rob Salerno recently questioned whether it was important to work toward explicit inclusion for transsexual and transgender people in human rights legislation, by adding the terms gender identity or gender expression. He wrote this in response to the reintroduction of Toby’s Act, in Ontario’s Legislature, but also referenced efforts to do so at the federal level, such as last year’s Bill C-389.
Overlooking the question of whether it’s appropriate for someone without trans experience and who wouldn’t be affected by trans human rights inclusion at all to be telling trans people that they’re better off with the status quo, I’d like to offer five reasons why it’s absolutely important to support clear inclusion for trans people. And to support it now.
5. The Status Quo is Not Comprehensive. Or Certain.
Salerno’s premise largely hinges on the Egan and Vriend decisions in 1995 and 1998, which assert that classes not enumerated should still be read into human rights law, and this has been how cases for trans people have usually been handled by entities like human rights commissions (albeit with shakier treatment in non-NRC settings):
Trans people don’t need the legislature to assert rights they already have, and insisting they do implies they don’t have rights otherwise. The discourse could have the impact of suppressing rights claims from trans people who erroneously believe they have no civil rights until the legislation passes.
Personally, I don’t see how not seeing inclusion in the legislation at all would reassure someone that they have legal protections, in the first place. But let’s assume that the op-ed was meant to focus solely on the idea that the discussion of rights inclusion shortfalls is the problem and nothing stands to be gained by having it.
Canadian Human Rights Commissions and Tribunals had largely read in gender identity as a “sexual orientation” (which it isn’t) or as “sex / gender” (which it is, sort of). HRC policies and read-in tendencies are not legally binding, however, and that status quo leaves trans people in a situation where they routinely have to justify how transsexuality or transgenderism qualifies as a sexual orientation or as a sex through a long, drawn out and uncertain ordeal each time that a case is heard, and leaves them vulnerable to the possibility that a court might disregard this and establish a new and contrary precedent.
More than that, though, we’ve seen that the read-in protections usually protect transsexual men and women, but it’s still uncertain how or if they will apply to non-transitioning gender diverse people. “Gender expression” refers to the way a person expresses their gender, in terms of roles, physical characteristics, mannerisms and dress. A status quo that addresses gender identity only (even if it were certain in every case) is only half a solution.
The status quo leaves this gap wide open and a swath of people in uncertain territory.
Salerno describes the movement toward trans inclusion as “incredibly disempowering:”
Trans people don’t need the legislature to assert rights they already have, and insisting they do implies they don’t have rights otherwise. The discourse could have the impact of suppressing rights claims from trans people who erroneously believe they have no civil rights until the legislation passes.Moreover, using the legislature to achieve these rights may actually expose trans people to greater long-term harm. If we concede the legislature has the power to establish these rights, then it would also have the power to take them away. A Hudak majority in the next election cycle could do more harm armed with the belief that rights spring from Queen’s Park rather than the Charter. Have we already forgotten that Hudak tried to turn trans people into the horrible bogeymen coming after your children in the dying days of the 2011 election?
And yet, the process of working toward human rights inclusion is an overwhelmingly empowering one, motivating people to come out, be visible, tell their stories, network with people from other movements who share a commitment to social justice, build communal and organizational infrastructure and connect with Canadian media and the public. You cannot generate a movement toward acceptance and enfranchisement by remaining in hiding.
The entire reason that Tim Hudak and Charles McVety were able to exploit the fictitious trans bogeyman is exactly because there has been a dearth of visible people, empowered voices and genuine representations available to the whole of society, outside our pocket LGBT and support circles. Nothing is more disempowering than invisibility. Nothing defuses myths and assumptions more effectively than visibility and vocality. The drive toward trans human rights inclusion provides an important spark that makes the latter possible.
3. Nothing Beats Clarity: One Example
Having a characteristic encoded in human rights legislation sends a clear signal that discrimination is unacceptable and society needs to get with the program. Here’s just once example why that is clearly important.
I transitioned while working at a company that I’d been with for over 19 years, and reached a level where I’d managed a store with four staff. When I came out, the company’s regional manager and I set out a timeline which would give the company a few months to develop a policy for transitioning employees, then I would take two weeks holidays while staff at the various stores around the city would be informed. I would return to work accepted as and presenting as a woman. I’d offered to write a letter of explanation that could be made available to our regular customers, to optionally read or not as per their preference, if they wanted to understand why I was “changing.”
I began living full-time as female, with the glaring exception of work. For somewhere between four and five months, I kept going back into that closet to run the store. I counted the days until the scheduled time that my planned holiday would begin, and I could be free of the expectation to be male forever.
Months later, when everything was supposed to be set into motion, my regional manager urged me to wait. “Head Office was supposed to come up with a policy on transsexual employees, and I haven’t heard anything back. It shouldn’t be long. Just another month.”
And next month, there was still no policy.
One evening, as a support group meeting was about to begin, I received a call from an employee. The other person who was on shift with her had to leave for a family emergency, and she didn’t have a key to lock up the store. I had no time to change. I drove to work — consequences be damned — and got out of my car just as she left the store to climb into her mother’s car and get to an evening class. “Hi, [old male name],” she said. “Nice hair.” The following day, I had a long talk with all my staff. They were excellent.
So the cat was sort of out of the bag. But my regional manager and the district manager still wanted to wait. There was still no policy. They wanted guidance about how to do this.
And next month, there was still no policy.
That Halloween, we had a dress-up theme at the store. I wore a black gown and witch trappings. Our customer base was primarily trade painters, contractors, texturers, maintenance people, wallpaper and specialty finishers, industrial coatings contractors… tradespeople we dealt with on a weekly or even daily basis. Many had known me for nearly twenty years. That day ended up being quite busy, and for some customers, you could tell that my outfit confirmed a rumour they’d already heard or something they suspected. For others, it seemed to add a dimension to my personality that suddenly made everything about me make sense. I’m surprised to say that (in the context of a Halloween stunt, at least) everyone who came in that day responded positively (at least to my face), sometimes remarking that I was “courageous.” One — a woman who had started her own texturing company — spontaneously (and without any foreknowledge) told me outright that she was convinced that I should have been a woman. They were overwhelmingly excellent.
So the rumour machine went into full motion. But my regional manager and the district manager still wanted to wait. There was still no policy. They wanted guidance about how to do this.
And next month, there was still no policy.
I came out to some of the staff I knew at other stores. I had worked at four out of the five locations in town, and could tell that rumours were already spreading — even before fate forced me to come out to my staff. I started with closer acquaintances, people I’d trusted, another store manager. Ultimately, everyone I spoke with from stores across the city knew. They were all excellent.
There was no longer any secret at all. But my regional manager and the district manager still wanted to wait. There was still no policy. They wanted guidance about how to do this.
And next month, there was still no policy.
It was like playing a game of chicken with myself. Months of having to go back into that closet on a daily basis were bearing down on me. Now that I’d already crossed the threshhold of coming out and was finding not only spaces of acceptance, but the freedom of being able to breathe freely and relate to people without having to hold back enormous key portions of who I was, I couldn’t take the ordeal of being the old forgery of a person for everyone else’s benefit. I lost hope; I plotted suicide; I quit my job; I withdrew my resignation; I crashed, went on stress leave and went through a long arduous process of fighting to go back to work in which I ended up feeling that I had to trade my position and pay in order to avoid losing 19 years of work history to a name change. By the time I’d eventually quit my job, I was training inexperienced and unskilled people who had been hired for more money than I was earning, after nearly 20 years of employment.
There were things I probably could have done, even if I’d had an indication that the law would be on my side at the time (this occurred before trans rights legislation was proposed, and it was the absence of inclusion, not the discussion about a bill, which had given the impression — even to friends with legal backgrounds — of non-inclusion). I’ve glossed over the details of why those things were not pursued. But seven or eight years later, I did some checking through a friend. The company that I had worked for still does not have a policy for dealing with transsexual and transgender employees. The reply was that because their policies are already in line with existing legislation, they’ve decided that they don’t need one.
2. Washroom Panic Proves Necessity
We shouldn’t have to enumerate every characteristic that would be unjust to use as a basis for discrimination. Canadian law has it right, in this regard.
However, once in awhile, we come to recognize that a group exists for whom society’s assumptions are so distorted, inaccurate and vicious that the general public sees it as perfectly acceptable and even “common sense” — that is, an expected part of the social contract — to make this exception. When that occurs, we recognize that a group’s omission needs to be addressed.
Welcome to the “Bathroom Bill” debate, which argues that allowing trans people to travel in the same circles as everyone else and be recognized as the people they are will somehow lead to an epidemic of child molestation and rape. Trans people have used public restrooms for decades, trans protections in some places date back as far as 1975, and we have yet to see an established pattern linking transsexualism and/or transgenderism with predation. But the presumption in society that there would be a connection should tell us something. We would not single out any other characteristic group and bar them from restroom use out of the fear that someone among them might be a rapist (aside from actual predators — who, I might add, are also not typically barred from public washrooms in any way, either). The fact that some see it as acceptable to deny trans people equality in housing, employment, access to services and freedom from violence on this basis vividly demonstrates that something is obviously f!*#ed up.
Potty fear is in fact the strongest argument FOR trans human rights inclusion that we could possibly have. And I strongly believe that the moment we realize that and confront Bathroom Bill rhetoric head-on and definitively turn it back on the transphobes, we will have opponents tripping over themselves to disavow it.
If we first remember that we have the overwhelming weight of fact on our side. If we are prepared to stand up and say something.
Human rights protections are necessary exactly because this irrational fear persists. It’s necessary exactly because trans people still get conflated with sex predators and child predators, or labeled as “sick,” “perverse,” and “freaks.” It’s necessary exactly because people become so clouded with assumptions and myths that they argue for our deliberate exclusion from human rights under the pretext that granting them would be “dangerous” or “scary.” It’s necessary exactly because this bias is so entrenched that people think nothing about broadcasting it openly as though fact. It’s necessary exactly because this “ick factor” response is seen as justification for not allowing an entire group of people to share the same space, to terminate their employment or to evict them. It’s necessary exactly because it is so pervasive that discrimination becomes not only likely but inevitable — especially if there is no explicit direction in law to the contrary on the matter.
1. Sparking The Conversation
One of Rob Salerno’s arguments is something that I can fully agree with — that rights inclusion is merely prescriptive, and does not itself result in any real and lasting change:
Advocates for Toby’s Act rightly claim that trans people face incredible amounts of discrimination. But amending the Code won’t solve this, in the same way that including “race” has not ended racism.
It does, however, spark the social conversation to recognize the presence of trans Canadians and the need to accept them in society. It’s a signal and a discussion. And as the media follows the story and starts to focus it’s microphone on real trans people and real trans stories — and as the Canadian public starts to see past the myths and fearmongering — real transformative change does happen.
And that has a value beyond compare.
How You Can Support Clear Human Rights Inclusion for Transsexual and Transgender People
Federally, a trans human rights bill will be coming up for Second Reading in a few months time. Bill C-279 proposes to add gender identity and gender expression to the list of protected classes in the Canada Human Rights Act and the hate crimes clauses of the Criminal Code of Canada. I’ve previously discussed how this bill actually can be passed in this session of Parliament, and what will be required to do so:
No doubt, the challenges are bigger. It would be tougher to pass this bill. It will take more effort, and the additional vocal support of trans-positive allies is absolutely crucial. But it’s not impossible….
And in Ontario, NDP MPP Cheri DiNovo has reintroduced Toby’s Act, which would add similar protections in that province.
I encourage Canadian trans people and allies to contact their federal Members of Parliament to express support for trans human rights inclusion. If you can make an appointment to meet with them in person, that’s all the better. And in Ontario, people should contact their Members of Provincial Parliament to do the same. Be clear but calm and civil.