The bad faith “debate” about trans human rights

Recently, the National Post published a discussion that I engaged in with Jonathan Kay.

I participated in that because it was an opportunity to provide a counterpoint for readers who don’t often see one. It was a chance to challenge some of the distortions and misinformation that have been circulating about trans people and their legal protections. If you read predominantly far right media right now, you would believe that wealthy, well-funded and all-powerful “TRAs” (trans rights activists) somehow control the government (one popular conspiracy theory claims that it is a pharmaceutical company plot) and are forcing some completely unfounded ideology and social engineering on destitute and helpless schools, governments, churches, workplaces and Canadian society as a whole. So it’s worth it for those readers to encounter a discussion that is rational, measured, and provides a glimpse of the reality outside of their own tunnel vision. I doubt many minds were changed, but at least an effort was made for the sake readers who are either still open to considering information outside the range of their predisposed views, or don’t encounter any better information in their travels.

It was framed as a debate, and debates about trans human rights are always a damned-if-you-do-damned-if-you-don’t proposition. If you participate in a debate, it gives the appearance of legitimacy to the idea that human rights should be debatable, and that opposition to them is an equally valid side. On the other hand, if you don’t, the debate still steamrolls on without you having any voice in it, and not only is your perspective unrepresented, it can even be characterized however your opponent chooses to portray it, without challenge.

It is worth mentioning, however, that the discussion that I had with Jonathan Kay is not “the debate” that gender critical figures are trying to have. I want to be clear that the discussion with Kay, via the Post was conducted in good faith — I don’t want to imply otherwise. The gender critical version of the debate gets framed a specific way, and it’s important to recognize this, and understand why the debate that gender critical speakers are pushing for is one that is inherently flawed and intended to be conducted in bad faith. And forgive me, because I have to generalize here: obviously, not everyone who takes issue with trans people thinks alike, but there are some general similarities, and the debate that most are trying to have has generally developed these relatively consistent rules.

From a gender critical perspective, the debate must be held within certain parameters. This is sometimes accomplished by defining terms at the beginning, but it can just as easily be accomplished by assuming those parameters at the beginning and very consistently and firmly policing anyone who deviates from them, as well as reframing anything that is said to the contrary so that it can be subsumed back into the original parameters.

“Sex ≠ Gender”

The first premise for the GC debate is that sex and gender are two different things. This statement is true, and any misinformed perspective usually begins with a kernel of truth. Sex and gender are two different things, and this is a point that trans folk have long made, when explaining why their anatomy does not define them. But for gender critical speakers, distinguishing sex from gender does the opposite, providing the opportunity to ignore both gender and gender identity, so that trans people can be once again defined according to their genital status (“sex”) at birth.

Gender critical speakers try to claim the moral authority on this point to assert that by extension. when it comes to human rights and accommodations in gendered spaces, physical sex is the only measure that matters. It’s sometimes phrased as though it’s a question of whether “sex is real,” but the intended undertone is that gender and gender identity are not, and are therefore not worthy of consideration. In reality, trans people don’t question whether sex is “real,” but whether one’s biology is their destiny, and whether one’s sex defines absolutely everything about them.

Making physical sex the sole benchmark is somewhat fallacious, given that (at least ideally) we don’t actually see the physical sex of the people we encounter, and instead assume their sex based on their gender presentation — but the folks making that argument are hoping that you don’t think too long on that. This foundation is used a bit duplicitously, though: when the subject of post-operative trans women comes up, the benchmark suddenly moves to chromosomes, socialization or reproductive capability, so that regardless of their apparently all-important anatomy, trans women can still be still essentialized as “males.” Likewise, the argument is made that segregation in gendered spaces is a matter of safety… but when the subject turns to accommodation in general (non-gendered) spaces and fears for safety can no longer be exploited, the imperative to verbally essentialize trans women as “males” (even to the point of harassment and abuse) and consider sex as the only worthy point of consideration is still viewed as being of paramount importance, and uncompromisable. Using “sex” as the one and only measure of value is actually a veiled proxy for considering cis (non-trans) status as the one and only measure of womanhood (it should be noted that gender critical people also abhor the term “cis,” because if the Latin oppositive “cis” is ever accepted as a corollary to “trans,” then it might legitimize the idea that trans people exist — so in gender critical thought, “cis” too must be considered a slur, and the words “normal,” “real,” “natal” or — most often — “biological” should be used instead).

The next extension of that initial premise is that there are only two sexes. This statement is true-ish in an overly general sense, but ignores the complexity of the science on the topic, and fails to consider intersex persons who have established medical conditions which cause developmental variances in their chromosomes, genitals or gonads. Any mention of intersex in the gender critical debate is usually met with a quick twist of pretzel logic to claim that these are merely exceptions that prove the rule, and then proceed once again under the premise that there are only two sexes — thus quickly evading the possibility that trans people (especially those who are compelled to transition between sexes, but not necessarily only them) vary in simply less visible ways than currently recognized intersex conditions, and deserve the same consideration.

Erasing Gender and Identity From Human Rights

The second major premise is that gender should be dismissed as being nothing more than a collection of outdated roles and stereotypes. This is incredibly reductive (deliberately so): gender can include them, but is not only them. Gender is the meaning that we find for ourselves inwardly and how we express it outwardly: this is usually based on our sex, but this meaning can also be chosen antithetically to what is expected based on sex — in short, it’s about who we are and how we decide to present that to the world, whether in accordance with stereotypes, despite them, or regardless of them.

As in the first point, there is a kernel of truth here too, namely, that gender roles and stereotypes are problematic. This is why “gender critical” became the new term preferred by trans-exclusionary feminists (who had previously self-identified as “trans-exclusionary radical feminists,” until they’d heard the acronym “TERF” in anger enough to decide that it should be considered a slur): certainly, there is a lot about gender roles and stereotypes to be critical of. On this point, gender critical thinkers and trans people should theoretically be in agreement, given that the latter challenge, question, traverse and defy those roles and stereotypes more than anyone. But there is duplicity in how gender critical people apply their argument here, too: whenever trans people happen to be in alignment with traditional stereotypes, they’re accused of reinforcing them; but when they challenge or deviate from those stereotypes, they’re mocked for being visibly trans, for how they look, and for visibly failing (by that person’s individual assessment) to meet those same expected stereotypes.

By extension of this second premise, then, gender identity is said to simply not exist, according to gender critical feminism. The collective weight of medical evidence in dealing with trans people says otherwise, but this is quickly dismissed as the medical establishment (at best) humouring trans people out of a misguided sense of sympathy, or (at worst) being in on the “gender ideology” conspiracy to reshape and destroy society. By defining gender identity as mental illness, a delusion, or even a destructive ideology, trans people then become entirely irrelevant to the debate that gender critical people want to have, and it becomes completely appropriate to dismiss them, their life experiences, and their needs from consideration. The gender critical debate, then, is entirely about us, but doesn’t involve us, as they assert that we can’t be trusted to have anything of value to contribute.

These are the starting points of the gender critical “debate,” and they are hallmarks of a debate in bad faith. From these parameters, trans women can only be considered to be “men,” and therefore everything that predatory men do can be ascribed to them, by default.  From these parameters, allowing trans women into a gendered space is automatically phrased as though those spaces are being opened up to “men” — even though that is not what is actually happening. There is no argument that can be made within these parameters that will lead to any acknowledgement that trans people exist, let alone that they should have rights or be accommodated in society in any way. This is by design: the easiest way to win a debate is to control the framing of it, so that it becomes impossible to come to any other conclusion than the one that you had allowed at the outset.

Human rights should not be up for debate in the first place… but when the debate is framed so asymmetrically, it becomes absolutely toxic.

In the discussion that I had with Jonathan Kay, it was on the condition that legitimacy issues (who I am or whether trans women are women, for example) would not be the focus of that dialogue. It is telling that he considered that “not realistic,” because the debate as he’s been hearing it has been taking place within the constraints above, and his thinking remained clearly influenced by these premises.

Many of the apparent “problems” of trans inclusion have already been considered over the past decade or more, and have been in the process of being updated based on real life experience, medical evidence, legal practicalities, and the duty to accommodate in a balanced way that considers context. By changing the parameters of the so-called “debate,” opponents hope to reset this all back to zero in a way that centers fears about trans people, and dismisses the voices of trans folk, solutions that have already been arrived at, nuances that we as a society have already learned to deal with, the context of any given situation, and any evidence that supports inclusion. It is, in a way, a means to reverse everything that has happened in the past several years, simply by insisting that it should be so and denying the validity of anything or anyone that says otherwise. It also provides a reset on language so that those who refuse to accept the existence of trans people have a sometimes-stealth / sometimes-duplicitous language with which they can be hostile, without incurring the wrath of the public at large (although we see from the complaints about infringements on freedom of speech that this doesn’t always work).

The worst part of it all is that the entire bad faith gender critical “debate” threatens to divide feminism against itself at a time when Canadian religious conservatives are attempting to reboot abortion criminalization and American religious conservatives are eagerly awaiting the overturning of Roe v Wade. It allows traditionally misogynistic personalities and organizations — ranging from the Heritage Foundation to Tucker Carlson — to deflectively posture as feminists or allies at a time when the so-called “populist” nationalism they tout is threatening to erase feminist awareness from higher education and push women back toward those very same stifling gender roles and limitations that women are still struggling to break. In the UK, it has even been used to locate and recruit gay and lesbian transphobes in order to turn them against that nation’s primary LGBTQ+ rights advocacy organization, and undercut, defund or even destroy it. Beyond that, it has also managed to turn up some transphobic lesbian, gay and feminist personalities willing to validate religious conservative talking points about “gender ideology,” without realizing that “gender ideology” is veiled code that in many uses also encompasses LGBTQ+ rights, feminism and many other aspects of social justice.

There are so incredibly many things that trans feminism and general feminism can and should agree on, and yet gender critical efforts seem to discard all of that, in order to pretend that the single most important challenge facing women today is whether trans women should be accepted as women. This absolutist, sort-of-fundamentalist and all-consuming focus is as troubling as it is self-defeating.

(This commentary also appears at rabble.ca. Image: Adobe Stock)

Canada’s Trans* Rights Bill Now Endorses Bans in Washroom and Gendered Spaces

Canada’s trans* human rights bill C-279 was amended by a Senate committee, in a way that makes it legal to ban trans* people from washrooms and gendered spaces appropriate to their gender identity.

Sen. Donald Plett, Conservative member of the Standing Committee on Legal and Constitutional Affairs, added a legal exemption for “any service, facility, accommodation or premises that is restricted to one sex only, such as a correctional facility, crisis counseling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room.”  The amendment passed with six of the committee members supporting it, four opposed, and one abstention.

There were two other unanimous amendments made.  One added the category of “sex” to the protections in the Criminal Code (which has long been a bizarre and serious omission from hate crimes legislation).  The other removed the definition of “gender identity” which had been added in the House of Commons as a condition of passing the bill, back in 2013.  Because the bill has been amended, it would need to return to the House for a final vote before being enacted.  It is thought unlikely that the bill would be brought forward before an election call — and now, if it did, the bill’s original proponents would oppose it — meaning that C-279 is almost certainly dead.

“The very act that is designed to prohibit discrimination is being amended to allow discrimination,” the bill’s Senate sponsor, Grant Mitchell, pointed out.  “It holds people who are law-abiding, full-fledged and equal members of our society accountable for the potential — the very, very long-shot potential — that someone would misuse this to justify a criminal act.” (The transcript has not been posted yet, but the videocast is still available)

Sen. Plett has long claimed that the bill would be exploited by pedophiles and rapists to attack women and children in washrooms, a claim that has been repeatedly debunked by law enforcement officials and other experts:

“Minneapolis Police Department: Fears About Sexual Assault “Not Even Remotely” A Problem. Minneapolis police spokesman John Elder told Media Matters in an interview that sexual assaults stemming from Minnesota’s 1993 transgender non-discrimination law have been “not even remotely” a problem. Based on his experience, the notion of men posing as transgender women to enter women’s restrooms to commit sex crimes “sounds a little silly,” Elder said. According to Elder, a police department inquiry found “nothing” in the way of such crimes in the city… [Phone interview, 3/11/14]”

Additionally, criminal activity in a washroom or gendered space would continue to remain criminal regardless of the gender of the perpetrator.  On the other hand, trans* women face very real dangers when institutionally housed with men or made to use segregated facilities according to their birth sex.

Nevertheless, bathroom-related fearmongering has been the cause of several petitions and campaigns to kill trans* human rights legislation in North America.  It has also started to spawn draconian bathroom-policing bills (some of which ignore the actual genital status of the person, even though genitals are allegedly the rationale for the law):

“Building managers who “repeatedly allow” trans people to use the bathroom that accords with their gender identity would, however, face up to two years in jail and a maximum $10,000 fine under the proposed law.

“… If passed, the law could tighten how Texas defines gender, not only singling out transgender people, but those who have chromosomes that don’t fit the strict definition laid out in the bill, like intersex individuals. The bill reads:

” For the purpose of this section, the gender of an individual is the gender established at the individual’s birth or the gender established by the individual’s chromosomes. A male is an individual with at least one X chromosome and at least one Y chromosome, and a female is an individual with at least one X chromosome and no Y chromosomes. If the individual’s gender established at the individual’s birth is not the same as the individual’s gender established by the individual’s chromosomes, the individual’s gender established by the individual’s chromosomes controls under this section…”

Plett’s reasoning essentializes trans* women as being “biological males” (“… and I will use ‘men’ because I believe they are biological men — ‘transgender,’ but biologically, they are men”), and asserts that they are inherently a threat to cis* (non-trans*) women.  When it was pointed out that his amendment would require trans* men to use womens’ facilities, Plett appeared indifferent, and he later referred to a young trans* man as “she.”  Plett added that he believed his amendment would allow “separate but equal treatment.”

Bill C-279 would affect only areas under federal jurisdiction, such as federal facilities, the Armed Forces, federal agencies, and First Nations reserves.  But it had been seen as a potentially important symbol of human rights protection to have specific federal inclusion.  Canadian human rights commissions consider trans* people written into legislation, but without explicit inclusion, there remains a possibility of an overturn in court precedent (where application is not as certain).  Meanwhile, companies that take direction from federal legislation continue to not see a need to develop policies for trans* employees.

The Northwest Territories was the first Canadian jurisdiction to pass trans-inclusive legislation, in 2002.  Ontario, Manitoba, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, and Saskatchewan all have provincial protections.  In British Columbia, a similar bill, M-211, has been blocked by B.C. Liberals, who refuse to allow it to face a vote or discussion.

Former Member of Parliament Bill Siksay first introduced a trans* human rights bill in 2005, and continued to reintroduce it in every Parliamentary session, until it eventually passed in the House of Commons. However, it was awaiting ratification in the Senate when a federal election was called, which killed the bill.  In 2011, Siksay left federal politics, and Randall Garrison reintroduced it as C-279.  In 2012, many trans* people stopped campaigning for the bill when the characteristic of gender expression was deleted from the bill, and a definition of gender identity was added.

(A version of this article also appears at Rabble.ca and The Bilerico Project)

Bill C-279: Where it stands.

The Parliamentary process has more twists and turns than a bloody mangled Slinky.

By now, I’d hoped to write about how the Conservatives’ filibuster of the committee process meant that the trans human rights Bill C-279 would be returning unamended for Third Reading, but then I found out that there’s a possibility that the two amendments arrived at in committee might still be accepted for introduction by the Speaker of the House.  So I can’t make any certain statements about the bill, or what it will be. Others have already begun branding it the “Gender Identity Bill.”  Barring some unforeseen disruption of process, Bill C-279 should be back before Parliament in late February or early March (the Parliamentary process on Private Members’ Bills is quite long), and we will probably know by late this month whether Randall Garrison will ask the Speaker to include the two amendments decided on in committee.

But in the meantime, people have still been asking about what my position on the bill would be if it does somehow proceed with the amendments.  Others have already stated that they would actively oppose a bill if gender expression is dropped.

Having been one of the people who early on expressed concern about the consequences if gender expression were dropped from Bill C-279, and if definitions were added for gender identity which potentially excluded people, I feel some obligation to say something publicly about the mixed sentiments happening around the bill that might have been (and may yet be).  I’d said at that time that if either took place, I didn’t believe I could support the bill, although whether I’d oppose it would have to depend on the specifics that emerged.  There has been some near-division that has resulted, and I feel some responsibility to address it (and am late doing so, as it is).

First…

I think it’s important to remind folks that transitioning people are mostly considered read into existing legislation already, although there is some feeling of precariousness to that, and it takes some effort to demonstrate inclusion in each case (which was one of the reasons the acting CHRC secretary general, Ian Fine, agreed that explicit inclusion would be helpful).  Because of this, I do personally believe that Canadian trans people have the luxury of taking the time to pass a comprehensive trans human rights bill, without people falling through the cracks in the meantime — and I believe that this is far preferable to trying to fix a flawed or abbreviated bill later.  For that matter, the more discussion that happens about trans people, the more that hearts and minds can be (and are) changed… so taking longer to pass a bill is not all bad.

It’s also worth pointing out that Bill C-279 applies to federal contractors and federal institutions.  It would provide an important signal to provinces, employers and Canadians in general as well, but it doesn’t of itself provide total protection to everyone across Canada.  There are a lot of emotions wrapped up in this bill, as though all our lives depend on it, and maybe we need a reality check on that.  It’s important, but not to the level of the emotional involvement people currently have with it.  This is another reason why I believe we can afford to be pragmatic and seek something comprehensive.

Would I oppose an amended C-279?

This question may be moot.  The committee process was deliberately filibustered by Conservatives, who sabotaged a motion to ask for an extension to finish considering the bill — something that was only supposed to be a few minutes for a y/n vote — with over an hour of debate that actually runs afoul of Parliamentary policy.  As a consequence it should be the unamended bill that proceeds onward, but apparently, this isn’t certain.  So for now, we’re only talking about something that might be.  Theory.

However, trying to reintroduce those amendments for Third Reading would probably provide the political opportunity to bring up the committee chaos and portray the bill as confusing, risky, vague, and everything else that opponents have claimed thus far.  It could also reopen a debate about adding a different definition, etc.

Without Gender Expression

In theory, if gender expression is dropped, it could in fact still work the way that Randall Garrison and many others believe — that gender expression would be read into the legislation, anyway.  It’s not an ideal situation, and I could not in good conscience actively support that bill.

But I don’t think I’d stand in its way, either.

I don’t like incrementalist approaches, given that we’ve been on the short end of that stick enough times to recognize the harm of them.  I will not participate in an incrementalist effort that could potentially exclude some trans people.

(For that matter, gender expression inclusion is not something to be afraid of, when you know more about trans people, diverse as they may be.  All the fearmongering that has arisen about gender identity and gender expression is based on assumptions of illegal or inappropriate behaviour projected onto trans people, with the belief that human rights inclusion will somehow absolve someone of said behaviour.  Human rights legislation does not absolve people of responsibility for their actions, or give people an excuse to conduct them.  It never did.)

But I’ve also watched the divisions and rifts that have happened in other places where trans-inclusive initiatives fall apart.  It can get very bitter very quickly, and in a way that will never help us develop the infrastructure that trans people (as a movement) need.  I don’t want to be responsible for something similar, especially if I can’t be certain any actual harm would happen.

Definitions

In theory, if gender identity is defined, it could easily be a bigger issue, if that definition excludes people.  Especially given that two of the definitions proposed (both by Brent Rathgeber, I believe) would have required a diagnosis in order to be eligible for human rights protections.  But the definition that was accepted was the one in the Yogyakarta Principles, and I’m relatively comfortable that it does not do that:

“Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body…”

Gender

A question was also raised whether gender identity and gender expression were even the right terms to work with, and asking whether “gender” would be the better term.

Personally, I’d be concerned that “gender” would still result in the same uncertainty that exists with the read-in inclusion under “sex.”  I’d also be very worried that this is a bad stage to be changing terminology, especially when there is a lengthy track record for gender identity and gender expression, which are used and understood in many international documents.

But there’s no value in being closed-minded to discussion, so I’m interested in hearing the reasoning.  The questions I’d ask are:

1. Are there any areas that focusing on “gender” would address that the current approach doesn’t?
2. Are there failures of the current approach, and are they serious enough to necessitate a late detour?
3. Wouldn’t a definition be necessary in order to assure inclusion using “gender,” and isn’t this as problematic as the status quo?

But there could be some value in including gender, and defining it in contrast to sex.

This is, however, a longer-term discussion, and I don’t know that it affects the current path of C-279, unless there is something particularly problematic about the bill.

So

For the time being, there is still some uncertainty about which bill will be proceeding.  We will probably know in late January, and then the Bill will come up in late February.

For those who would like to see the original bill move forward, my suggestion is to lobby those who supported it thus far (this is a good time to, since Parliament is out of session for a couple weeks and legislators are likely to be in their ridings), and let them know why a comprehensive bill is important and why “gender identity” fails to cover all trans people on its own.  And if they pledge to support the bill regardless of whether the amendments are included, please let Mr. Garrison’s office know.

C-279 Committee Roundup: The Necessity of Inclusion

On Tuesday November 27th, the Standing Committee for Justice and Human Rights (JUST) met for a second of three meetings to examine the trans human rights bill, C-279. I’ll be discussing the filibuster that occurred in the third, shortly.  However, it’s worth paying attention to the discussion on the bill’s necessity in the second meeting, as it was one of the Conservatives’ key arguments for opposing the bill.

In the first hour, it heard from representatives from the Canadian Human Rights Commission (CHRC), Canadian Human Rights Tribunal (CHRT), and a representative from R.E.A.L. Women of Canada, Diane Watts.  Which, if you were listening to the webcast, was something like listening to Peter Mansbridge, Pamela Wallin, and then this person:

Watts made news because rather than speaking much about trans people and human rights issues, she mostly ranted at length about pedophiles.  Then, when she was cut off and told her remarks were offensive, the floor was turned over to a member of the committee, Robert Goguen, who bade her to continue in the same vein for another five minutes.

A lot was said about Watts testimony, although the coverage glossed over some things.  R.E.A.L.’s “lead researcher” tried to frighten the committee about inclusion leading to the correctional system having “to provide treatment for those inmates,” even though Canada already has a ruling on that in Kavanaugh v. Canada (2001). Committee members referred to it several times in that meeting, in fact.  Watts also cited the American College of Pediatricians, which is an organization founded by reparative therapists and has been repudiated by the American Academy of Pediatrics, which is the actual recognized authority in ACP’s field.

But the overlooked testimony of the CHRC and CHRT representatives is far more significant.

The Conservative Party argument against Bill C-279 has long been that they believed the bill was not necessary, and that the terms were not defined.  And yet, after the second meeting of the Standing Committee for Justice and Human Rights to discuss the bill, some of the opponents of trans human rights inclusion switched tactics by dropping the argument about necessity, and focused emphatically on defining the terms narrowly, such as by tying them to a diagnosis.  The use of the “not necessary” argument came to an end.  So what happened during the meeting?

The anti-gay spin machine LifeSiteNews has deliberately distorted the testimony of the Canadian Human Rights Commission and Canadian Human Rights Tribunal folks in order to validate the idea that clear human rights inclusion is unnecessary.  But it only works if you cherry-pick little snippets from Canadian Human Rights Commission acting secretary general, Ian Fine, and Canadian Human Rights Tribunal acting chairperson and chief executive officer, Susheel Gupta, out of context:

Fine, responding to Goguen, admitted that “strictly speaking, I suppose the legislation isn’t necessary…”

Gupta was more adamant about not taking a position either way, but here are full quotes from Ian Fine from the transcript.  See if you come to the same conclusion that LSN did:

“To answer your question, as I said at the outset, we currently accept complaints—and have forever—from transgendered individuals under the ground of sex, and sometimes under the ground of disability, and we will continue to do so. To answer your question, strictly speaking, I suppose the legislation isn’t necessary, but we see other reasons why it would be important to include these two grounds under our act, and we do support them.

“For one thing, it would provide the clarity that I think we believe is missing at this point, because as much as it’s true that the commission and tribunals and courts do accept transgender issues as falling under the ground of sex, parties still debate that issue before those very tribunals and courts and question whether or not transgender issues fall under sex. In one case I know of, an issue was raised as to whether or not you could even raise the issue under sex and instead should raise it under disability.

“There continue to be these debates, so for clarity reasons, we believe it would be a good thing to add these two grounds. Also, as I said at the outset, it would be a recognition of the discrimination that this group faces: the sometimes hostile and violent acts that this group faces in our society. So it would recognize the vulnerability of this group, of these individuals.

“…

“It is true that the Canadian Human Rights Tribunal certainly has held that these matters fall within the existing prohibited grounds. There’s no doubt about that. Other courts and tribunals across the land have done so. As I have said, we receive complaints on transgender issues under the ground of sex and sometimes disability.

“But the reality is that even though the courts have accepted that and we accept that, parties still go before those tribunals and courts and raise arguments about whether or not they are included. So clearly there are some Canadians who aren’t in agreement with that notion, who are still fighting about it, who feel that the protection is not explicit or shouldn’t be covered by one of the other grounds.

“We’re simply suggesting to add these grounds to provide more clarity to all Canadians, to make it explicit, and then there’s no doubt.”

Spin attempts to the contrary, Conservatives can’t justifiably call clear trans human rights inclusion unnecessary, anymore.

C-279: When a victory for one can be a victory for… one.

The second hour of Second Reading debate for Bill C-279: An Act to Amend the Canadian Human Rights Act and Criminal Code (gender identity and gender expression) occurred on Friday June 1st, and the Second Reading vote is to take place on Wednesday June 6th.  I missed any indication that the discussion was going to happen, and consequently didn’t catch up on things until today when I was preparing to post the Hansard and looked at the discussion that took place.

IF Randall Garrison carries through on his promises to make the amendments stated at the end of Second Reading discussion, then I (as a trans activist) probably would no longer support this bill. I have not decided if I would actively oppose it, but I will express right now why I very likely would not support such a bill.

Here’s the good news.  Five Members of Parliament spoke up and every one expressed support for extending human rights protections to transsexual and transgender people, and in the voice tally that followed, the yeas were deemed in the majority (which makes it better than both tallies during C-389’s passage).  Here’s the bad news:

“If we can get support at second reading to get the bill to committee in the vote next Wednesday, we on this side will support amendments to do two things. We will support an amendment to remove the term “gender expression” from the bill, and we will support an amendment to add a definition for “gender identity” to the bill. I trust that this commitment will secure enough support to move forward on the protection of transgender Canadians.”

Maybe there’s a master plan.  Maybe there’s a definition that won’t eject anyone, though I’m skeptical that’s possible.  The problem is, I’ve seen this before, several times, in the media that I monitor as a blogtivist.  In 2011, it became one of the new “ways that you pass trans-inclusive legislation.” I’ll not name the other one, for fear of giving people ideas, but will say that it starts with “Maryland” and ends with a whole lot of schism.

I’ll post the Hansard discussion complete from 1:33 to the end of discussion for Bill C-279 at the end of this article where it is posted at Dented Blue Mercedes, given that the cuts to the Libraries and Archives Canada bring into question whether and for how long Parliamentary debate records will be kept.  I have the Hansards for C-279 discussions archived for my use and can locate them for other interested parties upon request as well.  I will be doing the same with the previous session’s Bill C-389.

This is why I will most likely not support a trans human rights bill with gender expression removed and with gender identity narrowly defined.

Firstly, I want to be clear that I do not doubt Mr. Garrison or question his motives.  I believe that he doesn’t fully realize the implications of both actions, and in his passion and dedication to secure human rights for trans people, sees these as the means to achieve them.  We are all — during our moments of privilege — prone to making these kinds of errors.  It’s the privilege of never having had to experience and cope with the many means that are used to disenfranchise us.

But if you want to be angry, save it instead for idiot bloggers living in the heart of Conservative country who have failed to change the hearts and minds of — and in most cases, even secure meetings with — people whose votes would have made the difference on this bill.  Especially when they consider their own MP a likely no vote, despite once having had a verbal commitment to support the bill.  It was whispered in the post-mortem of C-389, and I expect it will happen again.  So be it, if it means that we don’t burn the bridges we’ll need in order to start over.

It’s important to recognize the efforts of someone like Randall Garrison (and Bill Siksay before him) who has taken up what is a difficult task in this Parliament, and has by all accounts worked tirelessly on it.  I do however strongly urge him to reconsider.

Defining Gender Identity

We do not define terms in human rights legislation.  We never have.  The moment we start establishing definitions, we are placing limits and defining who can be excluded from those protections.

We do not define disability, for example, in a way that excludes certain kinds of mental disabilities that we might be uncomfortable with.  Whether or not we are comfortable with any group, all humans are deserving of equal rights to employment, housing, and access to services.  Whether we are comfortable with any group, all humans are deserving to be judged by the legality and ethicality of their actions, and not based on a characteristic that they happen to have.

Classes in human rights legislation are also typically open-ended to be inclusive of all people, in the spirit of granting equality to everyone, rather than defining terms to the point of exclusion.

Too, our understanding of the human experience changes as we learn more about it.  To define transsexual people according to a 2012 understanding of transsexuality can easily become a conflict for Canadians in 2030.  One very specific way I could see this happening is if the current medical diagnosis and classification of transsexuality — already a very volatile topic of debate in medical and social communities — changes and / or if transsexuality is declassified as a mental illness, which is certain to happen at some future date.

Each defining trait excludes — some fatally.  Here are some examples:

Gender identity is the gender a person identifies as, which may not always correspond with their physical sex.  This usually refers to operative and non-operative transsexuals.  However, in other regions in North America and the world, I have seen legislators attempt to define gender identity in a way that requires surgery.  A person who is transitioned and has surgery is no longer between sexes (“trans-sex”) and is protected as the man or woman that he or she has become.  Definition that includes a surgical requirement essentially excludes absolutely everyone who needs protections via gender identity.

That one is unlikely for Canada, I admit, and I certainly don’t believe that Mr. Garrison would abide such a definition.  More often, though, I see attempts to define gender identity in a way that requires a diagnosis and some form of paper certification from a medical professional that a person is in transition.  This automatically excludes everyone who is:

• on the waiting list to see a therapist regarding gender identity issues (in Alberta, that waiting list is currently at 18 months);
• not currently covered by provincial health care and / or unable to afford private insurance coverage for medical professionals’ visits;
• is a landed immigrant or refugee and similarly with limited health care and access;
• has been unsuccessful in finding a trans-aware and trans-friendly therapist who is willing to make such a diagnosis;
• unaware of the medical process and the steps they need to take to secure their human rights protections;
• unwilling to see medical professionals for their transition because of past negative or even traumatic experiences (some have undergone ECT or even psychosurgery in previous attempts to cure them of their gender identity; others have simply had conflicting experiences);
• choosing not to undergo the medical process out of the insistence that transsexuality is not mental illness and not wanting the diagnosis on their medical record (since there is currently no exit provision, although that may change in the 2013 release of the DSM-V);
• believing that they do not need to see a therapist because they do not intend to have genital surgery;
• I could go on.

In theory, this could also introduce a reverse onus on a transsexed person to keep a carry letter on their person to prove their status as transsexed.  This creates a “papers please”circumstance that no other Canadian has to endure in order to avail themselves of their human rights protections, and as such, it is an undue hardship.  Carrying such papers could expose a person to discrimination or even violence if found by a significantly transphobic person.

In any case, a definition creates a reverse onus on a person to prove that they meet the criteria of the definition, and the opportunity for a court to deem a person unqualified for their own rights.

Gender identity is not a new concept.  The term was developed by the Johns Hopkins Medical Center in 1966.  It has been in legal use in North America since the 1980s.  Gender expression has also been in legal use in North America since the 1990s, for that matter. Inclusion has been made in the Northwest Territories and Cities of Toronto, Vancouver and Ottawa — as well as many human rights commissions — without the lack of definition having caused any issues.  A definition is simply not necessary, and there is ample case law in Canada, let alone other Western nations, to draw from when sorting out legal implications.

But maybe I’m wrong, and maybe there’s a magic definition that won’t exclude.  I’d like to see it.  Unfortunately, I suspect I’ll be able to cite examples of people it will disenfranchise.

Dropping Gender Expression

Although popular nomenclature lumps everyone under the term “transgender,” transsexual people are only one of the groups that are popularly included in that term.  Also included are individuals who are not transitioning, but consider themselves to be between gender. I’ve discussed gender expression in full previously.  For example:

“… Genderqueer might refer to intentional androgyny, occasionally to hyper-femininity/hyper-masculinity done contrary to genitalia-based expectations, or mixing and matching gender-assumed clothing and / or roles in order to challenge societal assumptions.

Genderqueer can include anyone who feels they don’t fit a strict binary of “male” / “female,” or people who willfully reject such a binary in defining their own identity. They may refuse to conform to gender stereotypes, or may even snub them emphatically. Gender neutral pronouns such as “zie” (pronounced “zee”) or “hir” (pronounced “heer”) might be used….”

Without the inclusion of “gender expression,” they are most likely left out of human rights law.  Even if a definition of gender identity were to have some aspect that mentions gender expression, it would create a reverse onus for someone — a genderqueer person, for example — to explain how genderqueer is a gender identity… which means it could be vulnerable to interpretation.

Additionally, without the inclusion of gender expression, transsexed people might still be subject to having their right to employment, for example, made dependent upon maintaining a gender expression that the employer considers acceptable (i.e. if you have a penis, you have to abide by the male dress code).  There is at least one U.S. precedent in which a company dress code is given priority over gender identity protections, although since that time there has been a ruling in another state that likely supercedes it — however, it opens the possibility for such a situation in Canada.  Requiring a transsexed person to dress according to their biological sex can be a cause of severe anxiety and distress, and also violate their conditions of a medical transition process.

There is more.

When reparative therapy is used to attempt to “cure” gay and lesbian people of their same sex attraction, it is very often their gender expression that is targeted.  It is a part of the discrimination that is levied against many Canadians, some of whom might not identify as trans or even LGBT in any way, but can still be subject to this kind of discrimination.  For example, when waitress Stacey Fearnall was fired from her job after she shaved her head to raise money for breast cancer research, that was an objection to her expression of gender.

And with growing attempts by anti-gay / anti-trans individuals and groups to separate characteristic identity from behaviour (i.e. “I don’t hate him because he’s gay, I hate him because he is shacked up with or married to a man,” or “It’s not the fact that she’s transsexual that offends me but the fact that she dresses like a woman”) in order to create a back door in human rights protections, it is prudent to clearly close that potential escape hatch.

Gender expression refers to the way a person expresses their gender, in terms of roles, physical characteristics, mannerisms and dress.  The term has been used in legal arenas for at least a decade, and is discussed most notably in the Yogyakarta Principles, a statement on human rights developed by the United Nations, which Canada helped develop for use worldwide.

Dropping a term from legislation does not mean that courts will be required to consider that characteristic excluded, it will simply mean that it will be up to the courts to interpret — which is currently the status quo.  It will however make it more difficult to pass a gender expression -only bill later.

Undue Hardship

Human rights legislation already provides a mechanism by which conflicting rights are balanced.  Rights are granted up to the limit of undue hardship.  This has been an equitable way to balance the rights of individuals with the freedoms of their employers and providers.  A special limitation on specifically transsexual and/or transgender people once again singles people out for special additional exclusions.

What Now?

Currently, the proposed changes are merely proposed, and sight-unseen.  We don’t know yet what the proposed (let alone the eventually accepted) definition will be, and what ramifications it will have for Bill C-279.  For this reason — and in the interest of avoiding schism — I am not actively opposing the bill, for the moment.  In some ways, I’m still hoping that I’m wrong, and that there’s an equitable path forward.  I’m also willing to work with or provide feedback for those crafting a definition (yes, I can do these things in confidence if needed).  But it will take some convincing.

In the meantime, I await Wednesday’s vote and news about whether the bill will proceed to committee stage.

(Crossposted to The Bilerico Project Dented Blue Mercedes and Rabble.ca)

PRIVATE MEMBERS’ BUSINESS 

[Private Members’ Business]

*   *   *

[English]

Canadian Human Rights Act 

 

    The House resumed from April 5 consideration of the motion that Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), be read the second time and referred to a committee.

    [Table of Contents]

 

Ms. Joyce Murray (Vancouver Quadra, Lib.):  

    Mr. Speaker, I am pleased to have a few minutes today to discuss Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code. Quite simply, Bill C-279 seeks to provide human rights protections to a group that remains a significant victim of discrimination in our society. Specifically, Bill C-279 seeks to amend the Canadian Human Rights Act to add both gender identity and gender expression as prohibited grounds of discrimination. It seeks to amend the Criminal Code to include gender identity and gender expression to the definition of identifiable groups in its provisions on hate propaganda. It seeks to add gender identity and gender expression to the Criminal Code’s list of aggravating factors that affect sentencing.

 

    As the Ontario Human Rights Commission has noted:

 

There are arguably few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Transphobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.

 

    Given that the purpose of the Canadian Human Rights Act is to provide protection to the most vulnerable groups in Canadian society, it is my sincere hope that all members of the House will join the Liberal Party in supporting these logical and necessary modernizations of our existing laws. It is our belief that the amendments contained in Bill C-279 are an appropriate way to improve the human rights protections of a socially and economically marginalized group.

   (1335)  

[Translation]

 

    I would like to briefly comment on human rights in Canadian society.

 

    Thirty years ago, Canada established the Canadian Charter of Rights and Freedoms. It was a very, very important initiative. At the time, the protection of Canadians’ rights was not as strong as it is today. The charter was the means used to strengthen these basic rights.

 

    The charter also protected Canadians’ rights by being entrenched in the country’s Constitution.

 

    Why did the other political parties, such as the NDP and the Conservative Party, not celebrate the 30th anniversary of the Canadian Charter of Rights and Freedoms? Why did they ignore its anniversary in March 2012?

 

    At the time, it took courage to promote the creation of this charter. Today, it is up to our society to respect the rights and freedoms of Canadians. This is not a divisive or a shocking issue. Why did the other political parties not say a few words to celebrate the 30th anniversary of such an important event in the history of our country?

[English]

 

    Moving back to Bill C-279, this is the culmination of years of effort and already represents the will of the House. Since 2005 this bill has been introduced on six occasions by the member for Burnaby—Douglas of the NDP. It was introduced once by my hon. colleague from Vancouver Centre and most recently by the member for Esquimalt—Juan de Fuca.

 

    In 2010 the bill, which at the time was Bill C-389, was passed by the House of Commons without amendment, only to die on the order paper after being referred to the Senate.

 

    The statistics on transphobia, which my colleague from Esquimalt—Juan de Fuca eloquently pointed out in his remarks, are as striking as they are disturbing. Indeed, 95% of transgendered students feel unsafe at school and 9 out of 10 have been verbally harassed due to their gender expression. If this were one of our sons or daughters, feeling unsafe in school, all of us would take action to protect those rights.

 

    Furthermore, statistics from the United States reveal the significant incidence of de facto discrimination experienced by transgendered individuals. A recent national survey found that transgendered respondents experienced unemployment at twice the rate of the general population and were significantly more likely to be homeless and low-income earners. This is just wrong. Attitudes in society must change and this bill is directed to that result. As well, a shocking statistic is that 97% of transgendered respondents in a recent survey reported experiencing harassment or mistreatment at work on the basis of gender identity or expression. I am quite certain we can all agree that this too is simply wrong.

 

     As gender identity and gender expression refer not to an individual’s biological sex or sexual orientation but rather the individual’s inner knowledge of being male, female, both or neither, it is essential that Parliament send a clear and unambiguous message that this is a crucial equality rights issue. Adopting the amendments proposed in Bill C-279 is not just about ensuring transgendered Canadians enjoy the legal protections accorded to other targeted groups. It is also an opportunity for Parliament to send an unequivocal message of support to transgendered Canadians that we in this House affirm their identity and acknowledge their struggles. This would be a humanitarian step that would cost nothing. It is in alignment with the basic principles of fairness, humanity, equality, inclusion and respect. It is an opportunity for all parliamentarians to really look into their hearts and to express their values and principles of inclusion.

 

    As my hon. colleague from Mount Royal noted, a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people invisible. By amending the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds for discrimination, Parliament would enable the Canadian Human Rights Commission to keep statistical accounts of incidents of discrimination against transgendered individuals. The ability to compile and analyze such data would be crucial in confronting the scourge of discrimination that transgendered people continue to face in our society and might also guide educational efforts in the broader community.

 

    We know well that having clarity and being able to measure and compile statistics has been essential in Canada’s efforts to reduce other forms of discrimination against Jews, against people who are other-abled and in many other cases. What we do not measure, we cannot have objectives to improve. When we do not have objectives, we will be unlikely to achieve that goal.

 

    I am proud that in 1996, guided by the principles of equality, justice and the fundamental need to protect vulnerable groups in Canadian society so we may prosper together, the Liberal Party amended the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination. It is now time to carry on the fight against discrimination by making it clear that gender identity and gender expression are also prohibited in our society. Our job, as members of Parliament, is to do our very best for the common good and our very best to show respect, inclusion and humanitarian care for all members of our society.

 

     For the group that this bill addresses, its turn has come. That is why I encourage all members on the opposite side of the aisle to also support this bill.

   (1340)  

    [Table of Contents]

 

Ms. Libby Davies (Vancouver East, NDP):  

    Mr. Speaker, I am very proud to rise in the House today to support Bill C-279, which is An Act to amend the Canadian Human Rights Act and the Criminal Code in regard to gender identity and gender expression.

 

    This bill has had a long history, and I want to first of all thank the NDP member from Esquimalt—Juan de Fuca for the tremendous work that he has done on this new version of the bill, as it has been in previous Parliaments. He has done an incredible amount of work within Parliament and by talking to individual members of Parliament and helping people understand the importance of this bill and what it means. He has also done significant work in the community, not just in the trans community but in the broader community, to bring about a better understanding of this bill. I certainly want to pay tribute and give respect to the work that my colleague has done.

 

    This bill has actually had a long history. It was first introduced in the House in, I believe, 2005, and again in 2006 and then again in 2008 by Bill Siksay, who was the former member of Parliament for Burnaby—Douglas. He too did an incredible amount of work. It was a great day when the bill actually did pass in the House of Commons, as the member for Vancouver Quadra just noted a few minutes ago.

 

    In February 2011, it did actually go into the Senate. Had it not been for the election, it is very possible that the bill would have gone through the Senate and would now be law. That history is interesting because it gives a sense of the importance of private members’ business, bills and motions and of how we have to keep plugging away and working at an issue. Sometimes it can be a very long and difficult road, with barriers and frustrations and sometimes elections arising before the goal of having a bill finally approved is reached.

 

    This bill and its history have been quite remarkable. I want us to reflect on that today, because this is the fourth time around with this bill. It has already passed in a Parliament. We have an opportunity here today to do something historic, which is to affirm the rights of transgendered, transsexual and gender-variant Canadians who do not have the same degree of protection for their rights and freedoms as all other Canadians. That is why this bill is seeking to remedy that gap in the Canadian Human Rights Act and the Criminal Code.

 

    I know some Conservative members may just oppose the bill outright. I would have serious questions about that, because it is a bill based on establishing our understanding about human rights and protection under the law. Other members may support the issue in principle but may believe that the bill is possibly not necessary and that somehow that protection already exists. However, I think we need to be very clear that although other minority groups do have protection under human rights and the Charter of Rights and Freedoms, those rights are not guaranteed specifically to transgendered, transsexual and gender-variant Canadians because they are not identified as an identifiable group. While the charter now spells out race, nationality, ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted, it does not include transgendered persons. Therefore, it is really important that we actually make this move.

 

    I would point out that the Canadian Human Rights Act review panel in 2000 recommended that these changes take place. In other words, an independent evaluation beyond this bill in Parliament came to the same conclusion, the conclusion that these changes are needed.

 

    I would also point out that gender identity and gender expression are grounds for protection under the UN Declaration on Sexual Orientation and Gender Identity, to which Canada was a signatory back in 2008, so we can see the international frame for this as well as see that our own experts in Canada are saying that this change needs to take place.

   (1345)  

 

    The bill is very timely. It is warranted. It has already been approved by a previous Parliament, so I am very hopeful that we will see our way here, on all sides of the House, to have the bill go through at second reading and pass on to committee.

 

    The support in the community has been quite magnificent. A lot of people have worked very hard on this bill. They include the member for Esquimalt—Juan de Fuca, as I pointed out earlier, and also groups like Egale Canada, Jer’s Vision, Gender Mosaic, Ottawa Trans PULSE Project and Trans Pride Canada.

 

    These groups, and many individuals as well, have worked very hard to bring about greater awareness of issues facing transgendered people and greater awareness that discrimination still exists in daily life. Whether we consider health care or employment, housing or social interactions and social acceptance, there is still discrimination, there is still persecution and there is still violence.

 

    It is very interesting. When the member for Esquimalt—Juan de Fuca spoke in the first hour of debate, he laid out very well some of the reports that have been done. One done by Trans PULSE Project Canada, for example, shows that the level of depression among transgendered Canadians is as high as 61% to 66%, and there are issues around mental health. This all has to do with people feeling they are excluded, that they are facing discrimination and harassment, so it is very important that we address this inequality.

 

    A bill like this is really just the first step. Putting something into law, enshrining a right and improving and strengthening the rights that we have, is surely the most important and significant first step that needs to be done, but it is only the beginning. From there, we have to ensure continual vigilance to make sure those rights and protections are upheld because, unfortunately, much discrimination still takes place, so the application of the law and an understanding about the law are really important.

 

    We as legislators, as parliamentarians, have a really important leadership role to play in making it clear that we live in a society where, in our own communities and our own constituencies, we have transgendered constituents and that all people have the right to protection and dignity and respect under the law.

 

    We can begin at that place, but we have to go further. We have to make sure, for example, that there is equal access to health care. Transgendered Canadians often find it very difficult to access health care services and are often denied medically necessary care. They are forced to deal with the issue of their gender before they can access the service. There are many examples, including not having equal access to surgery, an inequality that certainly exists in the provinces where there are different variations and standards. Some very important issues need to be dealt with, but first and foremost we need to get the bill through.

 

    I want to appeal to all members of the House. This is a vote on principle in this bill, and if we accept the principle of what the bill is laying out, then let us get it to committee. At committee we can have a very constructive discussion about the bill, and there may possibly be amendments. The member for Esquimalt—Juan de Fuca, who brought the bill forward, has made it very clear and has shown in all of his work that he wants to engage, hear different points of view and find a way that the bill can be supported by all sides.

 

    We have something very strong and healthy here. We are very close to getting this bill through, so again I want to appeal to all members of the House to consider the principles of the bill, which are about the protection of all Canadians in human rights and dignity and respect, and to allow the bill to go to committee so that there can be a further discussion in much more detail.

 

    I am proud to be here today. Our NDP caucus, the official opposition, is 100% behind the bill, and we really hope other members of the House will find their way to support this bill as well and let it go to committee.

   (1350)  

    [Table of Contents]

 

Mr. Craig Scott (Toronto—Danforth, NDP):  

    Mr. Speaker, I would like to begin by acknowledging the work of my colleague from Esquimalt—Juan de Fuca for what he has been attempting to do here, including across the aisle, in a very effective and open way, and also the work of Bill Siksay, a former member of this House, who began the project over six years ago, and to remind everybody that this bill has in effect already passed the House once, only to stall in the Senate when the House was dissolved.

 

    I have three main messages in my remarks.

 

    First of all, I think it is really important that we see this bill as being centrally about recognition of humanity through recognition of distinct identity as part of our commitment to equality in Canadian society. I have found in the past the following approach to identity from an author south of the border, Audre Lorde, in her book Age, Race, Class and Sex: Women Redefining Difference to be very informative, and it might help the members of this House.

 

    Allow me to read, and I quote.

 

    She says:

 

…I find I am constantly being encouraged to pluck out some one aspect of myself and present this as the meaningful whole, eclipsing or denying the other parts of self. But this is a destructive and fragmenting way to live. My fullest concentration of energy is available to me only when I integrate all the parts of who I am, openly, allowing power from particular sources of my living to flow back and forth freely through all my different selves, without the restrictions of externally imposed definition. Only then can I bring myself and my energies as a whole to the service of those struggles which I embrace as part of my living.

 

     The connection here between identity, its recognition and one’s ability to participate and contribute to society at large is extremely well put in this quotation, and I hope that we can all keep the ideas in that quotation in mind.

 

    The second message I have is that this bill is hardly revolutionary. We already have an act in the Northwest Territories that reflects it. The Cities of Ottawa, Toronto and Vancouver have already taken this step. We have a bill that has passed second reading, the bill known as “Toby’s law”, Bill 33 in the legislature of Ontario, and we have a recently tabled bill—I believe it is a government bill—in Manitoba.

 

    Also, as has been mentioned several times, we have a declaration of the United Nations, the UN declaration on sexual orientation and gender identity, which Canada has signed, which has to be used as some kind of a normative reference point for our domestic law. As well, the UN High Commissioner for Human Rights has recently tabled a report at the end of last year on gender identity and sexual orientation that makes clear that even at the United Nations level, with all the diversity of member states, this is now recognized in human rights terms, and in the European Convention on Human Rights community, where we have almost 50 European countries, gender identity, through the recognition of transsexuals’ rights in different parts of the European Convention on Human Rights, has for over a decade been recognized in that area of the world.

 

    But my third, and most important, message comes from Ontario. It is to Ontario that I wish to focus, although what I am about to do is not very elegant or eloquent as a way of giving a speech. What I would like to do is share with the House some of the speeches that have already been given on Bill 33, Toby’s law, in Ontario. That is an act to amend the Ontario Human Rights Code with respect to gender identity and gender expression. I want us to see what is happening in the House today as part of a bigger picture and not to have the House end up falling behind the rest of Canada.

 

    Central to what is happening in Queen’s Park is that it is a multi-party process, including Progressive Conservative MPPs who are as enthusiastically in support of the bill as Liberals and NDP members. Indeed, it is important to note that it is a co-sponsored bill, sponsored by Cheri DiNovo, MPP, of the NDP, Yasir Naqvi of the Liberals and Christine Elliott of the Progressive Conservatives.

   (1355)  

 

    My purpose in bringing this up in this way is to ask my Conservative colleagues to take notice of the developments in Queen’s Park, and to allow to happen here what has already happened in Queen’s Park, which is the bill has passed second reading and has gone to committee. Once this bill gets to committee, we can have a very different kind of discussion. I think it is very important not to cut this off before that stage.

 

    Now allow me to do what I already indicated would not be very elegant or eloquent, and that is to dip in and out of some speeches.

 

    First is a quote from a speech by Christine Elliott, who is the Conservative MPP for Whitby—Oshawa. She is referring to Susan Gapka, a trans rights activist from my area of Toronto, whom I also have the pleasure of knowing.

 

    She stated:

 

[W]hen I first met Susan, which was in 2006….as a member of the Standing Committee on Justice Policy….at that time Susan appeared and was making the same arguments that she has continued to make, which are that everyone is entitled to the dignity and protection of the Human Rights Code, and that the inclusion of gender identity and gender expression, along with race, ancestry, place of origin, colour, and all the other things that we talk about when we speak about the Ontario Human Rights Code, should be included. Gender expression and gender identity should be included with that, to clarify and make sure that the rights of trans people are included as well.

 

    The Conservative MPP for Whitby—Oshawa continued:

 

Fundamentally, I agree that this is a matter of basic human rights, and that’s why I’m really proud to be able to co-sponsor this bill. I truly believe that everyone has the right to be fully included in our society, and everyone deserves the rights and protection of the Ontario Human Rights Code, period, end of sentence, no exceptions. That’s what I think we’re fundamentally dealing with here.

 

    She went on to say:

 

There was a letter that was sent by Ontario Human Rights Commissioner Barbara Hall in 2007 on this issue, and she noted that “the lack of explicit inclusion in the legislation means that trans people’s distinct experiences of discrimination remain unacknowledged…. Amending the code would provide clarity and greater recognition of the dignity of transgender people, and would leave no doubt, in the eyes of the public or the law, that they are entitled to the same human rights protections as everyone else.”

 

    The MPP for Whitby—Oshawa concluded:

 

I totally agree…and I think that some of the problems that people have encountered in terms of obtaining identification and obtaining travel documentation clearly show the fact that it hasn’t been completely accepted and understood by everyone. I hope that obtaining all-party support of this…would absolutely clarify the issue once and for all and we could move forward on this issue.

 

    I think I only have time to move to one other speech in the Ontario Debates, and that is one by Mrs. Jane McKenna, Conservative MPP for Burlington, who stated:

 

I have said before that I believe we are all God’s children. I firmly believe this to be so. I have said before repeatedly that no one should suffer discrimination or persecution because of who they are and the road they walk in this life. We pride ourselves on being a modern society, a progressive place. We aspire to the ideas enshrined in the Universal Declaration of Human Rights….

 

And yet, under the current language of the Ontario Human Rights Code, the equalities and freedoms that most of us enjoy, and which far too many of us take for granted, are spelled out clearly for some and are implied for others.

 

If we truly want all Ontarians to enjoy these fundamental rights and freedoms, they should be extended to all Ontarians.

 

    My intent in reading these two quotations from two members of the Progressive Conservative Party in Queen’s Park who are in support of the analogue bill in Queen’s Park is to plead to my colleagues in the Conservative Party to at least allow this bill to go to committee after second reading, where we can have a deeper discussion about the fundamental values of our country and the need to recognize the fundamental humanity of transgendered people.

   (1400)  

[Translation]

    [Table of Contents]

 

Mr. Philip Toone (Gaspésie—Îles-de-la-Madeleine, NDP):  

    Mr. Speaker, I rise today in the House to support Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code.

 

    I am very proud to have the opportunity to speak to the bill introduced by my hon. colleague from Esquimalt—Juan de Fuca. I would like to take a moment to congratulate him on all his hard work on this issue.

 

    I would also like to congratulate the former member, Mr. Siksay, who worked very hard in previous years to get his bill passed, a bill that was very similar to the one before us here today.

 

    At the time, his bill was supported by the Canadian Bar Association and the Public Service Alliance of Canada. Today, we also have the support of many other unions, such as the Canadian Labour Congress and the Canadian Union of Public Employees.

 

    I am very proud of the fact that Canada’s labour movement has given us its support so that we can finally pass legislation that will strengthen the rights of Canadians. I think that is very important. Canadians generally believe that our rights must be interpreted in a broad sense. However, when it comes to transsexuals’ rights, there are limitations. I am very proud of the work done by the hon. member for Esquimalt—Juan de Fuca.

 

    Passing this bill would be an important step in protecting the rights of all Canadians. As a member of Parliament and an openly gay man, I am very aware of the fundamental importance of the legal protection of sexual orientation and gender identity and expression.

 

    In fact, had my rights as a gay man not been enshrined in the law, I would likely not be here before you today. If I was not able to express my identity, I would be living a very different life, likely a double life, a life filled with fear.

 

    I would not be married. I would never have been able to openly share the joy of that relationship with my family and friends. I would likely never have developed the confidence needed to become a notary and a politician.

 

    I support this bill. It will help transsexual and transgendered Canadians achieve a degree of freedom that they do not currently enjoy. It will be a freedom that will allow them to exercise their right to express themselves fully and freely as human beings, knowing that the law will protect them against bullying and discrimination.

 

    Federal law does not provide specific protection for transsexual and transgendered Canadians any more than it provides protection against hate crimes.

 

    Often, the courts and human rights commissions consider these types of complaints as discrimination, but the legal arguments have to be made over again every time. Enshrining this right in our legislation would prevent such complaints from ending up in court and would prevent transsexual and transgendered people from always having to spend large amounts of money to protect rights that others take for granted.

 

    It is time to stop doing things this way and to protect transsexual and transgendered Canadians against the discrimination, harassment and violence they experience in their everyday lives. It is time to protect transsexual and transgendered Canadians.

 

    Some believe that terms such as “gender identity” and “gender expression” are poorly defined, but that is not true. These expressions are very clear in scientific research and in the law.

 

    Gender identity is an individual’s self-conception as male or female, both or neither, as distinguished from one’s birth-assigned sex.

 

    Gender expression is how a person’s gender identity is communicated to others through emphasizing, de-emphasizing or changing behaviour, dress, speech and/or mannerisms.

   (1405)  

 

     Some have argued that there is no need for specific protection of transgendered rights as sexual orientation is already included in the Canadian Human Rights Act and in the hate crimes section of the Criminal Code. This argument confuses sexual orientation (who one is attracted to sexually) with gender identity and gender expression.

 

    Transgender, transsexual, gender non-conforming and gender variant individuals may profess any of a range of sexual orientations: attracted to people of their own gender identity, of the other binary gender or of several different genders. There is no scientific justification for forcing those with alternative gender identity, gender expression or sexual orientation to assimilate. That kind of thinking is outdated.

 

    Trans people are regularly denied things that we all take for granted, such as access to adequate health care and housing, the ability to obtain or change identification documents, access to washrooms and other gender-identified spaces, limits on the ability to exercise the right to vote, and on the ability to acquire and keep meaningful employment.

 

    Canada is a signatory to the UN statement on sexual orientation and gender identity. To meet our obligations it is necessary to add gender identity to our own Canadian Human Rights Act and the Criminal Code.

 

     Transsexual and transgender Canadians currently have no explicit protection in the Human Rights Act leaving trans Canadians open to discrimination, prejudice, harassment and violence on a daily basis. Adding specific protections for the rights of transgender Canadians will close a specific gap in Canadian human rights law and will help raise public awareness about this important issue.

 

     Since 1970, at least 645 trans people have been murdered worldwide. We know that this is only the tip of the iceberg as most countries do no keep records on trans identities or trans-related violence. This is an opportunity for all parties to join together to help complete basic protection of human rights in Canada by including protections for transgender, transsexual, and gender variant individuals in Canadian law.

 

     We have seen this House pass similar legislation before. We had the support of many members from all parties. It would only make sense this time around to pass a bill on which this House has already spoken and for which it has given its approval.

 

     Moving forward with a new bill today will simply confirm the state of Canadian law as it should be and as the House has already declared it to be in the past. Unfortunately, we have lost several months debating the bill again, only to come here today and end up where we were two years ago.

 

     In closing, I think it is very important for us to move forward and confirm our support once again. I hope that all members here in this House who were here the last time will reaffirm their support for this bill and that the other MPs, those who are new like me, will also lend their support. Nearly a dozen Conservatives have even participated in the It Gets Better video project in response to high rates of LGBT suicides.

 

    We hope that all those who have demonstrated their concrete commitment to making it better for transgender people will vote in favour of this bill.

   (1410)  

[English]

    [Table of Contents]

 

Mr. Randall Garrison (Esquimalt—Juan de Fuca, NDP):  

    Mr. Speaker, I rise to close second reading debate on Bill C-279 with a great deal of optimism.

 

    In the brief time I have available, I will not try to review all the arguments in favour of the bill. One reason is that this is essentially the same bill that passed in the House in the previous Parliament and stalled in the Senate. The second is that I had the privilege of opening this debate some weeks ago and laid out my arguments then. The third reason is the arguments in favour that have been ably put before the House today by my colleagues.

 

    In the brief time I have available I want to deal with concerns we have heard from the other side of the House. I have listened carefully to speeches and I have talked a great deal with individual members on the other side. What I have heard is much goodwill on the question of protecting the rights of transgender, transsexual and gender variant Canadians despite some concerns about specifics of the bill.

 

    One concern is a lack of definitions of key terms in the bill. I personally still do not believe a definition of gender identity is needed in the same way that we do not define other terms in the human rights code.

 

    The other concern is with the breadth of the term “gender expression”. Again, this is not a concern that I share personally, but it is one that I have come to understand in my discussion with members on the other side. I will concede that this term is not as precisely defined in law as “gender identity”.

 

    A third argument that has been made against the bill is that it is not needed because transgender rights are already protected in existing legislation. Once again, I do not share this opinion. I believe there is a gap in our law. As we just heard from my hon. colleague, one of the problems in law if it is not specifically mentioned is that those legal arguments have to be rebuilt in every legal case. Even if this were the case and transgender rights were covered in some general terms, there are still good reasons to proceed with this legislation and its specific protection of the rights of transgendered Canadians.

 

    One good reason is to remove any doubt or ambiguity about the protection of those rights and to state very clearly that transgender, transsexual and gender variant Canadians are entitled to the same protections as all other Canadians, and that discrimination against transgender Canadians must end now.

 

    Progress is being made in other jurisdictions, such as Ontario and Manitoba, and even in some unexpected places like Argentina, which now has perhaps the most progressive legislation in the world on transgender rights.

 

    In response to that large measure of goodwill that I found on the other side of the House, I am committing today to support changes to the bill which I believe will preserve the essence of the bill while still meeting the concerns of many of those on the other side of the House.

 

    If we can get support at second reading to get the bill to committee in the vote next Wednesday, we on this side will support amendments to do two things. We will support an amendment to remove the term “gender expression” from the bill, and we will support an amendment to add a definition for “gender identity” to the bill. I trust that this commitment will secure enough support to move forward on the protection of transgender Canadians.

 

    I urge all members to join me in supporting this bill and helping to build a truly inclusive Canada where we can all live our lives as who we are, and we can each make our own special contribution to Canadian life.

 

    I want to remind the House once again that transgender, transsexual and gender variant Canadians are our brothers and our sisters, our children, our parents, our grandparents, our family, our co-workers and our friends.

 

    I urge everyone in the House to join together, let us move forward together to make progress for the protection of rights of all Canadians, including transgender Canadians, transsexual Canadians and gender variant Canadians. The time to act is now.

   (1415)  

    [Table of Contents]

 

The Acting Speaker (Mr. Bruce Stanton):  

    The time provided for debate has expired.

 

    The question is on the motion. Is it the pleasure of the House to adopt the motion?

 

    Some hon. members: Agreed.

 

    Some hon. members: No.

 

    The Acting Speaker (Mr. Bruce Stanton): All those in favour of the motion will please say yea.

 

    Some hon. members: Yea.

 

    The Acting Speaker (Mr. Bruce Stanton): All those opposed will please say nay.

 

    Some hon. members: Nay.

 

    The Acting Speaker (Mr. Bruce Stanton): In my opinion the yeas have it.

 

    And five or more members having risen:

 

    The Acting Speaker (Mr. Bruce Stanton): Pursuant to an order made on Wednesday, May 30, the recorded division stands deferred until Wednesday, June 6, at the expiry of the time provided for government orders.

 

    It being 2:18 p.m. the House stands adjourned until next Monday at 11 a.m., pursuant to Standing Order 24(1).

 

    (The House adjourned at 2:18 p.m.)

Less Than Woman, Less Than Human

Cathy Brennan and Elizabeth Hungerford have tendered a paper to the United Nations Entity for Gender Equality and the Empowerment of Women, in response to a query regarding the current international status of women. From this exercise, the Commission will be working to “identify emerging trends and patterns of injustice and discriminatory practices against women for purposes of policy formulation and development of strategies for the promotion of gender equality.”

In their paper, Cathy Brennan and Elizabeth Hungerford (who if they want to sign their names to this, I’m happy to give them ample credit for it) adamantly and explicitly oppose the extension of basic human rights to transsexuals, under the premise that providing rights protections under the classes of gender identity and gender expression “erodes” womens’ rights.  Conveniently, Cathy Brennan and Elizabeth Hungerford waited until the deadline for submissions before making this public, so that transsexuals are not given an opportunity to respond, and once again have no voice at all in the question.

Cathy Brennan’s and Elizabeth Hungerford’s argument only works:

1. if you refuse to accept trans women as actually being women,
2. if you believe that the principle of human rights (that all should be equal) is negotiable, if the minority in question is small enough, and
3. if you ignore the potential benefits women gain from gender expression inclusion.

Flushing the “Bathroom Bill” Fear Once and For All

As I write this, the LGBT community is struggling with a situation in Maryland where the provision for “public accommodations” has been removed from a bill that proposes to extend human rights to trans people, due to the ongoing “bathroom bill” panic-generation tactic.  In Canada, Bill C-389 passed despite this same fearmongering, but faces an increasingly precarious situation in the Senate.  In Montana, the state is proposing legislation that aims to erase the protections for all LGBT people that had passed the previous year in the City of Missoula, where the “not my bathroom” rhetoric failed… and where most pretexts of it have now been dropped in the battle against equality.  Elsewhere in North America, potty panic has been used to stir up an emotional “ick” response to any legislation that protects trans people, and even some non-inclusive LGB protections.  And once the emotions have been engaged, logic has to work five times harder to dispel the myths.

But in Maryland — which in 2007 was the birthplace of this wave of “bathroom bill” spinmongering — the tactic needs to be addressed head-on before it forever changes the face of how we accord and apply human rights.  Because the recent removal of “public accommodations” affects far more than washrooms, all because of an irrational fear of the possibility of behaviour that isn’t actually facilitated by trans protections and doesn’t actually happen in real life.

Human Rights In Principle

The whole premise of human rights is that all people should have equal access to employment, housing, medical and social services, and opportunities.  The understanding is that people should be judged on their individual merits or faults, and not on characteristics that other people may have prejudicial associations about.  We specify classes because bigoted people keep trying to make excuses to assert exceptions to the rule.  You shouldn’t have to tell society that it’s wrong to place life barriers for people just because others find their body weight objectionable, for example, but as it becomes increasingly demonstrated that discrimination persists, it becomes apparent that you do.  Without specifying these classes, a false equivalence is asserted in which one’s human rights can be trumped by another’s irrational fear of having to coexist with them.

Because classes are open-ended (i.e. “race” includes white people as much as non-white people), the whole idea that people in codified classes have “special rights” is a myth.  The intent is that a person should not be excluded from participating in society because of assumptions or constructions associated with a trait, but rather their own merits or failures should form the basis of how we decide to interact with them.  The playing field needs to be levelled to that there is equal opportunity in principle (although it doesn’t always happen in practice).

You don’t narrowly define these classes: once you start doing that, you start codifying into law when it becomes legally acceptable to discriminate against a group of people.  That is why when you include a class like “disability,” you don’t make an exception for people with mental illness. There is an example of this in the ironically-named Equality Act, in the UK, where legislation outlines when it is considered perfectly lawful to disenfranchise trans people.

Maryland

The good news is that this has not happened in the current situation in Maryland.  Although public accommodations have been dropped from the bill, there haven’t been any codified exemptions to create legally-sanctioned discrimination.  Consequently, areas not outlined in legislation become a matter for the courts, and the incrementalist perspective expresses hope that if there is no opportunity to introduce a better bill later, then the judicial system will at some point read in these protections on the basis of what is already codified in law.  LGBT Marylanders who have taken the “anything is better than nothing” approach have this to place their hope in, and it’s not substanceless.

However, we know that anytime unabashedly homophobic and transphobic people perceive that they can push LGBT people into the margins, they will almost always attempt to do so.  There is no guarantee that public accommodations will be read in or added later, and in the meantime, there will be people falling through the cracks of an incomplete bill.

There is also a concern that if Marylanders see it as acceptable to drop public accommodations from trans human rights legislation, then future legislators will see it as reasonable to do the same.  In a way, this move surrenders the washrooms to our opponents.

And more.  As Monica Roberts points out, “public accommodations” cuts a far wider swath than simply gendered stalls, showers and urinals:

A place of “public accommodation” is defined as “an establishment either affecting interstate commerce or supported by state action, and falling into one of the following categories: (1) a lodging for transient guests located within a building with more than five rooms for rent; (2) a facility principally engaged in selling food for consumption on the premises, including such facilities located within retail establishments and gasoline stations; (3) any place of exhibition or entertainment; (4) any establishment located within an establishment falling into one of the first three categories, and which holds itself out as serving patrons of that establishment; or (5) any establishment that contains a covered establishment, and which holds itself out as serving patrons of that covered establishment. Bishop v. Henry Modell & Co., 2009 U.S. Dist. LEXIS 104830, 39-40 (S.D.N.Y. Nov. 9, 2009)

In other words, if this bill is passed and I travel to Maryland, I potentially lose my rights when dealing with hotels, restaurants, theatres, shopping malls… all because irrational people assume that being trans somehow automatically makes me a sexual predator.

The Porcelain Red Herring

That’s the infuriating part of all of this. I’m transsexual, and have been using the womens’ restroom ever since I transitioned, years ago.  It has never been illegal for me to do so.  Making it an issue at this point in time is archaic on a level that is mind boggling.  The Transgender Law and Policy Institute notes around 130 jurisdictions in the US where explicit legal inclusion for transgender and transsexual people exists (some back to 1975), and yet the only incident of the kind being imagined by opponents was staged by opponents (more on this in a moment).  The conflation of trans people with sexual predators is a fallacy.

It’s also ludicrous to speculate that a cisgender / cissexual sexual predator would risk drawing attention to himself by crossdressing, in order to access a washroom that he’d have better luck just sneaking into when no one is looking.  This is simply a meme designed to generate a quick panic response, and exploit the “ick” factor for people whose idea of what trans is hasn’t evolved past Shirley Q. Liquor.

In the US south, decades earlier, there was reluctance to desegregate washrooms because of “delicate sensibilities” and beliefs in the inferiority and impurity of entire groups of people.  In the advent of HIV, there were ignorant comments about gay men in washrooms, borne by fears that had not yet been dispelled by science that AIDS could be contracted from a toilet seat.  I even remember discussions in the 1980s when disabled washrooms were first proposed, in which people expressed their “discomfort” of encountering amputees in intimate spaces (which is a pretty chilling and disgusting objection nowadays, isn’t it?).  And every time, there was hysteria.  Every time, it was unfounded. Every time, our society ultimately moved toward progress, inclusion and accommodation, anyway, and bigots just had to bloody well get over it.  And every time, we looked back and realized that the potty panic was just plain offensive.

Exactly Because This Persists

What people are failing to see is that potty fear is in fact the strongest argument FOR trans human rights inclusion.  And I strongly believe that the moment we realize that and confront Bathroom Bill rhetoric head-on and turn it back on the homophobes and transphobes, we will have human rights opponents tripping over themselves to disavow it.

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.

Maryland Redux

Politics is local.  In 2007, Montgomery County, Maryland teleported itself into the middle of the conflict between far right Christian Nationalists (as opposed to Christians, some of whom are affirming) and LGBT people, when the NotMyShower website was established and “Citizens for a Responsible Government” (CRG) took the “ew, ick” impulse that cisgender people had about their mythic impression of trans people, mixed it with their feeling of vulnerability in washrooms and came up with the modern version of the “Bathroom Bill” formula.  The meme was originally about showers (where actual nudity could theoretically happen) before they discovered that making it about public restrooms better enabled their scaremongering to go viral.  This probably wasn’t a previously unheard-of objection, but it was polished and perfected into a political technique in Maryland.

Complete with a washroom invasion at a gym and spa in Gaithersburg.   Here is how it was reported on by a local ABC television affiliate, on Tuesday January 15, 2008:

A man dressed as a woman walked into the women’s locker room at the Rio Sport and Health Club in Gaithersburg Monday, spawning concerns over a new controversial law designed to protect transgendered people.

Around 1 p.m. Monday, a man wearing a dress walked into the women’s locker room surprising Mary Ann Ondray who was drying her hair. “I could see his muscles, I could see his large hands. He was wearing a blue ruffled skirt that came down to above the knee.”

The male left without saying anything, but Ondray says, “I was very upset, I’m still upset. There’s a lot he could’ve seen.”

Club officials say he is a male club member, but it’s still unclear why he was dressed as a woman or why he didn’t use a designated family restroom.

(Incidentally, the use of a single-stall locking restroom is in fact the policy for pre- or non-operative trans people at the health club in question)

Speculation abounded almost immediately afterward, and was so blatantly obvious that CRG’s Theresa Rickman eventually admitted to having staged the incident — but it’s still sometimes pointed to by opponents, since the media didn’t as widely report the deception:

THERESA RICKMAN: Yes, at Rio Sport and Health up in Germantown. A guy dressed as a girl went into the ladies bathroom. And, ah you know, essentially what uh, that was meant to get some media attention, you know, and the guy left immediately apparently, I mean but there was, this is the Rio Sport and Health Club, you know and Sport and Health has steam rooms, and there are ladies changing in those locker rooms, people in various stages of undress [laughing] all the time, so there’s lots a guy can see.

Transphobia has fomented in Maryland with a peculiar intensity in the past four years,where an odyssey unfolded which saw trans protections pass in Montgomery County, only to have opponents push a petition drive fiercely enough to put the option on the ballot for voters to repeal it… only for the courts to then recognize that enough of the petition’s signatures were questionable or likely to have been obtained under false pretenses to invalidate it.  Montgomery County also saw a murder attempt that was investigated as a hate crime in 2009, and attempts to destroy Dana Beyer’s political career.

Context is everything, and it’s important to recognize how the “Bathroom Bill” spin cycle progressed in Maryland, and where it differs or is similar to what happened elsewhere.

Oh Canada!

Transsexuals — those people who are primarily being villainized in the washroom territory dispute — face challenges to their very existence regularly during a transition process that is recognized by medical authorities as valid and necessary.  Zoe Brain outlines quite vividly the kinds of hoops we need to go through when we begin our transition… and how it is far from a whim.

That’s not good enough for Charles McVety.  He feels that:

“Bill C-389 is a danger to our children,” said Charles McVety, president of the Institute for Canadian Values. “If ‘gender identity’ is enshrined in the Criminal Code of Canada, any male at any time will be permitted in girls’ bathrooms, showers and change rooms as long as they have an ‘innate feeling’ of being female.”

If one has the innate feeling of having a doctorate — and the cash — on the other hand, why not?

McVety and other homo/transphobes started up the spin cycle almost from the moment that trans protections went to committee for second reading. Gwen Landolt of REAL Women of Canada tried to exploit mental health prejudices by repeatedly citing a pamphlet by the American College of Pediatricians (a legitimate-sounding medical body that screens its membership according to far-right views on abortion and homosexuality, and whose publication has been disavowed by the American Academy of Pediatrics — the accepted authority in ACP’s domain).  The website No Apologies openly proclaimed allegations that trans people are “sexual predators and voyeurs.”  The Association for Reformed Political Action (ARPA) Canada was notable among several online initiatives by automating the process so that with a click of a button, people who were sufficiently frightened by the rhetoric could click a button and mail every Member of Parliament with a prepared letter.

And although mainstream media — outside the Harper government -influenced Sun Media, which is currently trying to launch a preferentially-treated television network that is referred to as “Fox News North” — refused to dignify much of the washroom scare tripe (and sometimes printed notably positive editorials), trans voices were largely excluded the conversation about trans rights almost altogether.  This happened despite the fact that trans people across Canada approached media with a willingness to speak on the issue.

But regardless of all of this, on February 9th, 2011, the Government of Canada passed Bill C-389, An Act to Amend the Canadian Human Rights Act and Criminal Code (gender identity and gender expression) on a narrow vote of 143-135.  In a nation that hadn’t encountered “Bathroom Bill” spin before and had been somewhat insulated from similar discussions that happened south of the border, it had fared better… but still (thus far) failed.

Incidentally, McVety runs an organization directly funded by John Hagee and Focus on the Family, Landolt uses talking points that are almost verbatim those used by Andrea Lafferty of the Traditional Values Coalition (and derived from CRG), and Tristan Emmanuel — mentor to Timothy Bloedow and the original founder of both No Apologies and a centre dedicated to training Evangelicals and Christian Nationalists to try to form a biblically-driven government — now runs a company that publishes Matt Barber.  If we don’t think these folks are trading strategies, we’re fooling ourselves.

Missoula, Montana: The Little City That Could

Alberta is very much a community caught between Montana’s ranchman culture, Texas oil culture and our trademark Canadian complacency.  As well as being the birthplace of the Harper government and a hotbed for Christian Nationalism, we were home to the Stephen Boissoin “religious persecution” hate speech case heard around the world, provided a home (and tenure!) to a military psychiatrist who was accused of using horrific techniques to cure gays in South Africa, and witnessed the firing of a teacher by a publicly-funded Catholic school board that explicitly stated the termination was because of his transition to male.  At some moments, we’re embarrassingly regressive, and yet there is a fiercely progressive streak among the public not often reflected by provincial politics or social issues.  It is this stubborn live-and-let-live silent majority that has endeared me to Alberta and kept me here, and it is because Montana is quite similar in this regard that I had followed the events in Missoula closely.

To me, Missoula signaled the beginning of the end of the Bathroom Bill tactic.  There, opponents took the (by this time) highly original approach of creating the NotMyBathroom website and engaged in several distortions.  But there was a difference.  With a little information, people saw through the fearmongering.

In a panel hosted by Forward Montana and featuring a Wyoming Republican, a pastor, a veteran and a past chairman of the Montana College Republicans, the latter stated in support of LGBT protections: “I cannot believe we’re fighting issues like this in 2010.”  And although members of CrossPoint Community Church and senior pastor Dr. Bruce Speer disrupted a meeting of community religious leaders who came together to express support for the ordinance, the affirming leaders soldiered on, forming Flush the Fear, which declares:

“All people should be free from discrimination based on their sexual orientation and gender identity or expression.  Faith communities value dignity, fairness, diversity, and justice, and we know our strength as a community is based on treating each other fairly and with respect.  Our group will be a strong and peaceful voice for the full inclusion of the LGBT community in non-discrimination policy.”

Allies and affirming people of faith stood with us.  Cisgender people who realized that they too were the focus of hatred for thinking outside the stereotypically male and stereotypically female boxes stood with us.  And on April 10th, civic legislators passed an ordinance to protect LGBT people at a margin of 10-2.  Don’t get me wrong — this didn’t happen without vile rhetoric and loud opposition… but enough people saw through it to do the right thing.

“Fool me once…”

Once that happened, opponents of LGBT rights (because it wasn’t only trans people who the ordinance protected) realized they couldn’t use pee fear in an overt capacity, and pushed the state government to pass legislation that would invalidate Missoula’s ordinance under the pretext of making human rights protections consistent throughout the state, thereby avoiding confusion.  If that sounds spurious, you’re not the only one.  Especially when cast against the disgusting comments by Dr. William Wise during discussion of a concurrent bill to remove sodomy from the Montana penal code.

Although, that hasn’t stopped the “Bathroom Bill” meme from being used under the radar:

Sen. Bruce Tutvedt, R-Kalispell, defended the right “not to be overregulated.”

He said he has heard comments from people asking about whether a business, under the ordinance, could legally keep “a certain sector” out of a multi-stall public restrooms. It was an apparent reference to transgender men [sic] using women’s restrooms, an issue raised by some people testifying against the bill in hearings.

But ultimately, washrooms (which — like anywhere else trans protections exist — have not experienced an actual trans predator since the ordinance passed) were never the issue at all: refusal to coexist with lesbian, gay, bisexual and trans people was.

(Montanans who want to petition legislators or find out how they can be involved can find out info via the Montana Human Rights Network.  The bill was recently amended to narrow it so that it specifically changed ONLY Missoula’s protections based on sexual orientation and gender identity)

Maryland Revisited

So the struggle comes right back to Maryland, with a state-wide ordinance HB235.  This time, because peoples’ concerns about washrooms had put intense pressure on her, Del. Joseline Pena-Melnyk (D-Prince George’s and Anne Arundel Counties) dropped a provision for “public accommodations” from it.  Pena-Melnyk had sponsored trans-inclusive legislation since 2007, and this was reportedly a difficult decision — but ultimately, the support that she would have needed to overcome the “Bathroom Bill” meme just wasn’t there.

Noting that supporters were unable to get the bill out of committee during the past three years, [Equality Maryland Executive Director Morgan] Meneses-Sheets said most supporters believe an incremental strategy of advancing employment and housing protections for transgender people this year is a “far better” option than seeing the bill go down to defeat and having no protections at all.

An online petition has been started to have the provision reinstated and a Facebook group has been set up to”Tell Maryland Legislators NO to HB235 Omitting Public Accommodations.”  Equality Maryland has come under fire for silencing critics of the move.  On Tuesday, activists from Trans Maryland rallied outside the Supreme Court to try to have the provision reinstated (although commenters have questioned whether the rally might have been more effective at the MD state legislature).

Meanwhile, opponents continue to oppose the bill — this time, because it “redefines gender.”  And even when acknowledging the removal of the public accommodations provision, they continue raising the specter of “bathroom rapes” by citing violent acts committed by people who aren’t trans at all and weren’t enabled in any way by an extension of human rights protections to trans people.

The underpinnings of every community’s political situation is always different from situation to situation.  Maryland is not Canada is not Missoula is not ENDA.  Toilet terror has been waged longer, fiercer and and more bitterly than anywhere on the planet so far.  It is inevitable that some LGBT Marylanders will feel that something is better than nothing, at this point.  But even if a best-case scenario unfolded for incrementalists and HB235 passed, with public accommodations being added in some way shortly thereafter (and before someone could be negatively affected by its absence), the act of removing the provision has already seriously fractured pro-trans forces in that state.

Missoula was the beginning of the end of washroom tactics… unless we wave the white flag of surrender.

So What is the Answer?

It’s one thing to condemn and criticize.  It’s another to come up with a solution, and that is the challenge we face both in Maryland and anywhere the “Bathroom Bill” talking points are exploited.  This is the moment we either rise to that challenge or turn on each other.  “All right, Mr. DeMille, I’m ready for my close-up.”

In some private discussions during the quest to pass Bill C-389 in Canada, there was some talk about doing a “sit-out” protest (either at a visible government building washroom entrance or with the iconic male and female symbols put on the doors of the government buildings themselves) that uses the theme of being shut out of washrooms as a metaphor for being shut out of legislation, human rights and basic necessities. Media releases sent out the night before would use the washroom angle to generate interest, and then during a daytime rally (in the media cycle), speakers could focus on that, telling stories of exclusion from within the trans community, and having a handout.

Ultimately, too many people were afraid of possibly lending credence to the meme, and it never happened.  And depending on what happens in the Senate, it may not have been necessary.  But I do believe that by effective communication, and by including a diversity of people — especially cisgender people who queer their gender a bit (making the point of how gender expression protections are of value to far more than trans people) — it can turn the conversation right back on the fearmongers.  Because that’s what we need to do.

But politics is local.  Is Maryland the time and place to revisit this?

All of a sudden, these things just started appearing in womens’ washrooms everywhere.

And then, there’s the possibility of a stickering campaign, which could be employed anywhere that washroom panic is used to attempt to deny trans people legal protections.  It would require the participation of those trans people and allies who do use a ladies’ restroom, to cumulatively make it be noticed and be effective.   Because if a sticker like this started appearing in washrooms all across North America, the discussion would likely change.  Completely.

(I have the URL, and would be more than happy to employ it to flush the fear on an international level.  I would not, however, be able to fund and maintain it on my own.)

This would require people to have the stickers printed and place them, and is a relatively inexpensive approach that could be done on a grassroots level.  It could, however, cause some blow-back, from those who would portray us as “men invading womens’ spaces.”  It is the only part of the discussion that the general public will see as having merit, but it is one of the central foundations of the “Bathroom Bill” argument, and something that will need to be addressed.  If we proceed on a sticker campaign, we will need to be prepared and equipped to do this.

This would be a bit different from initiatives like that of a coalition of Illinois groups, who started a campaign to highlight businesses that have trans-inclusive washroom policies.

I’m sure there are more ideas.

It’s infuriating that we should have to dignify washroom predator rhetoric with a response.  But if we must, then let’s turn it right back on the fearmongers and use it to show exactly why it demonstrates that trans-inclusive human rights legislation is needed.  Starting right where it all began and moving all across North America.

Because with ENDA being about to be reintroduced in the House soon (albeit more symbolically than otherwise), and being championed by a legislator who has done more to perpetuate the washroom scare than to challenge it, I doubt American trans folk can afford to let this tactic run amok, anymore.

This has been diaried at DailyKos.  If you feel it should have wide visibility, please vote there for it to be promoted to the front page.

Also crossposted to The Bilerico Project, DentedBlueMercedes and Progressive Bloggers.

Edit: Thanks to Dana Beyer for reviewing the Maryland information in this article.