Trans Human Rights in Canada: Progress, Stalls and Confustication.
The Province of Nova Scotia passed Bill 140, the Transgendered [sic] Persons Protection Act, today. The Nova Scotia Rainbow Action Project (NSRAP) commented on Facebook:
“Bill 140 passed today with unanimous support in the Nova Scotia Legislature. “Debate” isn’t the right word to express what happened – it was an outpouring of support for adding gender identity and gender expression to the Human Rights Act.”
Meanwhile, things haven’t gone as well in the Province of Newfoundland and Labrador. Jennifer McCreath reports that:
For the third year in a row, members of the Newfoundland NDP party asked the governing Conservatives to add Gender Identity and Gender Expression to the Human Rights Code. This year, not only did they ask via Question Period, but did so via signed petition – that contained over 400 signatures of NL citizens. In addition, a speech was read to commemorate transgender day of remembrance – which included a thank you to the various organizations working on behalf of trans rights in NL.
And for the federal trans human rights bill, C-279, it’s looking like it might be at risk of becoming mired in committee stage by a triple threat of “confound, confuse and confusticate.” The Standing Committee on Justice and Human Rights (JUST) will be hearing 8 proposed amendments to the bill, and so far we’ve only seen the first, which proposes to drop the term “gender expression” from the bill and also to correct a technicality by adding in some classes which have already been added to the Canada Human Rights Act since the bill was first drawn up. Some on the committee are questioning the move to drop gender expression, with a couple instead calling for it to be narrowly defined. Stay tuned. The committee meets again on Tuesday December 4th at 3:30 EST / 1:30 MST, and there is a webcast (Meeting 55) that can be listened to live on Parliament’s website when it happens.
Nova Scotia is the fourth region in Canada to pass trans-inclusive protections. The NorthWest Territories added gender identity to human rights legislation in 2002, and the Provinces of Ontario and Manitoba both added gender identity and gender expression to theirs in 2012. Similar proposals have been put forward in other provinces, but have met resistance. Alberta Liberal MLA Laurie Blakeman, for example, proposed an amendment which would have added gender identity to that province’s update of human rights legislation in 2009, but the Progressive Conservative majority voted it down. The cities of Toronto, Vancouver and Ottawa have also passed non-discrimination ordinances.
Nova Scotia: Progress
From the Hansard (transcript) of today’s Legislative session notes that the Nova Scotian Minister of Justice Ross Landry introduced the bill for Third Reading, and MLAs Michel Samson, Jim Morton, Kelly Regan, Gary Burrill and Gary Ramey all spoke compellingly in favour of the bill. Here are some highlights:
Hon. Ross Landry: “I hope that this bill is the beginning of a new era for our province; one in which transgender Nova Scotians don’t have to worry about threats, fears, or discrimination; one in which they know their community will accept them without question, and one where they know all Nova Scotians support them in their desire to live full, happy and healthy lives.”
Mr. Jim Morton: “There are reasons why people are invisible and stay that way. Sometimes staying invisible is about not being able to find the language to share, but I think more often it’s the risk of ridicule, the risk of physical harm – actual harm, not just emotional harm, but harm to one’s physical being – and the risk of being isolated, but in a new and yet more painful way. All of those risks help people stay silent.
“One of the consequences of that experience, and one of the reasons why I think Bill No. 140, although it’s only a few words, is so important is shame. One of the consequences of keeping the core of oneself private involves a sense of shame, and that shame, in turn, reinforces the invisibility. And I think shame robs individuals of their potential; shame steals capacity from communities and can give rise to thoughts of self-harm or anger, or certainly it can contribute, in the mental health world, to depression.
“… So Bill No. 140, the Transgendered Persons Protection Act, is an acknowledgement that transgendered persons exist, that they have a right to exist and to be part of our society, to live openly and to live, as the Minister of Justice said in his remarks, without fear, but not only without fear, but can and must be welcomed as part of our larger community.”
Mr. Gary Burrill: “What progress, we might just think to reflect for a moment, what advances there have been, just over the course of the last few decades. A person thinks about this naturally in terms of contrasts. I think about the world, for example, which I inhabited as a child and my memories of the inhuman ridicule in the community where I was raised, to which a person who was identified there as transgendered, was exposed. I think of the claustrophobic homophobia which prevailed in the closed gender and sexual expression environment of the high school that I attended. I contrast this with the much more open high school world in my own experience of Musquodoboit Rural High School – the high school world from which my own children, in the last decade, have graduated. This high school, which has its vibrant chapter of the Gay-Straight Alliance and defying in the process, I might say, a lot of stereotypes about rural communities with its vibrant chapter of the Gay-Straight Alliance…”
In Newfoundland, the story has been much the opposite, with NDP MLA Gerry Rogers reading a petition on behalf of 400 signatories, calling upon that government to add human rights protections for trans people, on November 20th, to coincide with the Transgender Day of Remembrance. The Minister of Justice for Newfoundland, Darin King, responded with the same claim that federal Conservatives have made, that inclusion was unnecessary (something that representatives of the Canadian Human Rights Commission and Canadian Human Rights Tribunal effectively refuted, but more on that later). King said (as he often has) that “we are advised, through our legal advisors and through the Human Rights Commission, that there are no gaps in the current legislation and that provisions that the member is asking for are currently there.”
Ms. Rogers also questioned the Minister of Health, Susan Sullivan, about the province’s requirement that trans people travel to Toronto’s Centre for Addictions and Mental Health for diagnosis and recommendation for surgery, when there are skilled medical professionals in Newfoundland who are capable and willing to address trans health. Sullivan responded that her department was “willing to sit and talk and have conversations around those issues,” so the news might not be all bad (time will tell).
Jennifer McCreath has been following this effort closely.
The uncertain future of Bill C-279
The Standing Committee on Justice and Human Rights (JUST) has had two meetings so far to discuss Bill C-279, Randall Garrison’s Private Member’s Bill proposing to add transsexual and transgender people to federal human rights legislation and to protected classes in hate crimes laws. Meeting one was predominantly testimony. Sara Davis Buechner and Hershel Russell spoke of their experiences, followed by representatives from Egale Canada, Ryan Dyck and Erin Apsit. Highlights of this meeting include:
Sara Davis Buechner: “After graduating from the Juilliard School in 1984, I gave a very successful debut in New York. In 1986 I was the top American prize winner of the international Tchaikovsky competition in Moscow. I received a lovely letter from President Ronald Reagan at that time. Some years later, I also played at the White House for President and Mrs. Clinton. I have a very nice photo of the two of them congratulating me on that.
“At the age of 37, after a lifetime of questioning and fear, I was diagnosed with gender dysphoria, and I transitioned to my correct gender, which is female. My pianistic skills did not change one bit, but suddenly my concert schedule went from about 50 appearances per year to two or three, and the conservatory in New York where I was a popular teacher decided my skills were no longer needed.
“With limited means of supporting myself, I took a job teaching small children at an upstate private school for about $600 a month. I counted myself lucky, as most of the transgender friends I knew were completely unemployed. Some of them were homeless.
“I learned to endure frequent verbal and occasional physical harassment as part of the price of that integrity, even in a city of such a cosmopolitan nature. One evening I was the victim of an attempted date rape at the hands of a man who assumed, since I was transgendered, I must be a sex worker. I didn’t bother to report that to the police, because I didn’t want to be harassed by them either. I believe they would have assumed I was a trannie sex worker and deserved everything I got.
“In an effort to find meaningful employment, I applied to about 30 American colleges and universities with music openings. I received no answer from most of them, and rejections from the others. One professor from Rutgers university asked a colleague of mine if it was safe to leave me alone in a room with undergraduates.
“But when I was called for an interview for the open piano position at UBC in Vancouver, I was pleasingly astonished to find that their music department was interested about two things only: one, my musical ability; and two, my teaching ability.
“When I did get the job in a competitive audition, I was overcome by emotion on two levels. One, I would be able to pay my bills for the first time in many years. And two, I realized that Canada was far ahead in terms of its understanding and support of basic human rights…”
Hershel Russell: “Some of the information I would really like you to grasp in terms of this bill is that both studies show very clearly that we are an exceptionally highly educated community. We have more education than almost any other community, and we are a community that suffers from extraordinary poverty. I would like to argue that this combination of things can only be explained by discrimination. There really isn’t another way to explain it. Both of these documents also really show the terrifying, heartbreaking levels of suicidality in our community, and certainly, as a mental health professional, I have to work with these painful, painful issues over and over and over…”
(later): “… The shortage of doctors for all Ontarians is bad; the shortage of doctors who have any idea how to work with our community is horrifying. There are very few weeks in which I don’t have a client for whom I am desperately seeking medical care.
“We’re working very hard to expand the numbers of doctors who have the knowledge and the connections, in terms of protocols and so on, to undertake that care—we are not very complicated, we are much easier to care for than folks with diabetes—but that is proceeding slowly. It is very, very hard for us to access the most basic health care.
“It is also true, as my colleague Sara was saying, that a trip to the emergency room can be pretty alarming. There is no reason to assume even that you’re going to be treated respectfully. We still have far too many stories of people going in for a flu shot and somehow it’s necessary to have their genitals examined….”
Ryan Dyck (Egale Canada): “My understanding, from speaking with our lawyers and given the way the Canadian system works, is that the phrase “gender identity” would be interpreted by the courts to include the expression of that identity. That would be in line with the Supreme Court’s repeated statement that “a broad, liberal and purposive approach is appropriate” when interpreting human rights legislation. From that perspective, I suspect that we would be on good legal grounds with just “gender identity”.
“However, I would be concerned that it does create some ambiguity, given that this leaves it up to the courts and we cannot guarantee that such would be the case. I would also be concerned as to what signal it would send if the committee were to remove it. In future cases, if the courts were to look at that as a signal that gender identity shouldn’t be included, or if were not Parliament’s intent, that would create a large concern for me.”
Hershel Russell: “To have identity documents that don’t match is a real problem for us. It means we can go through the kind of experiences I went through. We can have all kinds of difficulties with the police. It’s a constant source of anxiety and difficulty for us. It’s really big.”
The Evidence (transcript) of Meeting 2 hasn’t been posted yet. When it has, I’ll likely discuss that further. However, a quick synopsis is that the Committee heard from representatives of the Canadian Human Rights Commission (CHRC) and Canadian Human Rights Tribunal (CHRT), as well as from a last minute addition to the agenda, Diane Watts, a researcher for R.E.A.L. Women of Canada. Ms. Watt went on at length about pedophiles, obviously conflating trans people with predators, and turned the first hour into a bit of a circus. But there was also some important testimony from the CHRC and CHRT representatives that dismantled the argument that explicit inclusion is “unnecessary.” Although there was a mix of statements on that subject, there seemed to be more or less agreement that visibly codifying trans people in human rights legislation would be not only helpful for the public at large, but for the legal system as well. After that, there was some initial discussion of the first of 8 proposed amendments to the bill, none of which have been voted on or decided on, yet.