Frequently asked questions
What will the bill do?
Bill C-389, a private member’s bill proposed by NDP MP Bill Siksay, will add gender identity (a person’s deeply felt sense of gender) and gender expression (a person’s ways of expressing their gender through dress, behaviour, and social presentation) as prohibited grounds of discrimination in the Canadian Human Rights Act and the sections of the Criminal Code dealing with hate propaganda and sentencing for hate crimes.
- Outlaw discrimination based on gender identity and expression in both the public and private sector in all areas of federal jurisdiction: including the federal government and its services, the RCMP, the Canadian Forces, correctional services, services to First Nations and Inuit people, and federally regulated industries such as banking, telecommunications, and air travel.
- Make it a crime to advocate genocide or incite violence against a group based on gender identity or expression.
- Allow judges to consider, during sentencing, whether a crime was committed against a person because of their gender identity or expression, and provide a more severe sentence for that reason.
Trans and gender non-conforming people would benefit from the same legal protections from discrimination as exist federally against discrimination based on race, religion, sexual orientation, and the like.
What is the origin of the bill?
As early as 2000, the Canadian Human Rights Act Review Panel, under the leadership of former Supreme Court Justice Gérard La Forest, released a report entitled Promoting Equality: A New Vision, which recommended including gender identity in the Act.
In 2004, Corie Langdon and Chris Boodram of Carleton University’s School of Social Work undertook a trans legislative needs survey with the support of Transgender Canada, the Ethics Institute of Canada, Gender Mosaic, Egale Canada and former NDP MP Svend Robinson. Following the study, Langdon and Boodram suggested the changes proposed in the bill.
Following his election in 2004, Bill Siksay, the New Democratic Party’s lesbian, gay, bisexual, transgender and transsexual issues critic undertook a series of consultations with the trans community, in Ottawa, Toronto and Vancouver, as well as by e-mail, regarding the human rights protections the community needed. Based on the results of these consultations, Siksay proposed the first version of the bill in May 2005, and reintroduced it in each subsequent Parliament.
The current bill, C-389, was introduced in May 2009. It had its first debate — the first ever debate in the House of Commons on trans rights — in May and June 2010. It was then passed at second reading on June 8, 2010, and was referred to the Standing Committee on Justice and Human Rights for study.
What protections for trans people already exist?
In Canada, only the Northwest Territories already bans discrimination based on gender identity; some cities such as Ottawa, Vancouver, and Toronto include gender identity and expression in their non-discrimination policies.
Certain provincial human rights commissions, such as those in Ontario, BC, and Quebec, have ruled that existing protections against “sex” or “disability” also protect transsexual people. However, this may not be reliable, and it is also not certain whether this protection applies to all trans and gender non-conforming people, or only to transsexual people who have undergone transition.
Furthermore, specifying gender identity and expression as prohibited grounds of discrimination makes it easier to educate and work against transphobia. Passing the bill would be a very clear signal that transphobia in our society needs to end.
In 2000, a report by former Supreme Court Justice Gérard La Forest on the Canadian Human Rights Act noted that “to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issues to remain invisible.”
Elsewhere in the world, thirteen U.S. states and the District of Columbia, as well as 109 municipalities and counties, prohibit discrimination on the basis of “gender identity,” “gender identity and gender expression,” or “transgender status.” The US federal hate crimes law and those of 10 states include gender identity and/or expression. Countries such as Bolivia, Croatia, Serbia, Albania, Montenegro, each of Australia’s states and territories, Spain, and parts of Peru and Argentina also offer protection from discrimination based on gender identity and/or gender expression.
What kinds of discrimination do trans people face?
Transgender, transsexual, and gender-non-conforming people suffer a great deal of oppression in our society: discrimination in employment (they suffer a staggering unemployment rate), housing, obtaining government and social services including health care, official identification (with consequences for banking, education, and other services), business, and other areas, as well as incitement to hatred, assault, sexual assault, and murder.
The Ontario Human Rights Commission says (March 2000):
There are, arguably, few groups in our society today who are as disadvantaged and disenfranchised as [trans people]. Transphobia combined with the hostility of society to the very existence of [trans people] are fundamental human rights issues.
Participants in a survey in Ottawa (Langdon and Boodram, 2004) experienced:
• verbal harassment, 74%
• intimidation, 54%
• hate propaganda, 41%
• attempted assault, 38%
• physical assault, 32%
• discrimination in housing, employment and services including unwelcome comments at work, 43%
• unwelcome comments in living accommodations, 32%
• discrimination in bars, restaurants, schools, universities and colleges, each at 32%.
In Egale Canada’s National Climate Survey on Homophobia in Canadian Schools (March 2009), 95% of trans students felt unsafe at school, compared to one-fifth of non-trans students, and 9 of 10 trans students reported that they were verbally harassed because of their gender expression.
A Québec government report (De l’égalité juridique à l’égalité sociale, Commission des droits de la personne et des droits de la jeunesse du Québec, 2007) identified numerous forms of discrimination including:
• lack of access to health care due to ignorance or transphobia on the part of health care providers (such as lack of respect, verbal abuse, outing, or intentional calling by wrong name, title, or pronouns);
• absence of services for youth in difficulty who are trans or oppressive requirements such as prohibiting them from living as their gender of identity, leading to rejection from the system, homelessness, exploitation, exposure to STIs, and violence;
• oppression in the workplace, including disrespect, denial of benefits, intentional calling by wrong name, title, or pronouns, refusing access to washrooms or appropriate-gender uniforms, refusing leave for transition-related medical care, unfair dismissal;
• oppression by police and judiciary: discriminatory targeting for arrest (e.g. trans women or trans-feminine people being assumed to be sex workers), subjection to transphobia in incarceration, failure to provide for their safety, denial of access to continuing hormone therapy;
• lack of access to legal change of gender unless stringent criteria are met (including sex reassignment surgery that may not be available or desirable to all), resulting in the person’s being outed as trans to anyone to whom identification must be shown, or the assumption that the ID is false.
The Canadian Labour Congress (Trans Issues for the Labour Movement, 2003) identified numerous issues:
• Employers refuse to hire, train, or promote trans workers.
• Employers fire trans employees when they transition or come out.
• Supervisors and coworkers taunt, isolate, verbally and physically abuse transgender individuals; supervisors and coworkers refuse to refer to trans people by the name and in the gender of their choice.
• Use of gender appropriate washrooms and changing facilities becomes an issue, as does the question of appropriate uniforms and dress codes.
• Access to leave – time off work required for medical procedures; duty to accommodate during transition.
• Medical coverage for transition related expenses and ongoing expenses, such as hormone replacement therapy.
• Confidentiality of records – name changes to reflect chosen identity for pension coverage, medical and health plans, EI, CPP etc.
• Transgender people are regularly denied access to housing and services and/or are subject to ridicule by service providers and other clients.
• Accessible washrooms are virtually non-existent.
• Medical issues include denial of medical treatment – even for medical issues not related to transition; ridicule and mistreatment by providers; inability to obtain ongoing, routine medical care, exclusion of medical procedures required for transitioning from health care plans. Services to assist those in transition are limited, especially outside large urban centres.
• Hate crimes: transgender people are the subject of violent hate crimes. Anti-trans violence is prevalent and vicious. Trans people in the sex industry are especially at risk.
Violence against trans people tends to be of an especially vicious nature. Trans murder victims, trans women in particular, are often shot or stabbed numerous times, sexually assaulted, or mutilated. Like gay bashing, trans bashing is based on an irrational fear or rage against trans people. The Trans Day of Remembrance on November 20 is devoted to trans people who have lost their lives to transphobic violence.
A major issue for trans people is access to medical care, both with regard to transition and with regard to discrimination with regards to all other health needs. In 2009, the Canadian Rainbow Health Coalition began a human rights complaint against the federal government for failing to create programs to promote lesbian, gay, and bisexual health as it has programs dealing with the health needs of other target groups. They were not able to include trans health in the complaint because gender identity and expression are not prohibited grounds in the Canadian Human Rights Act as sexual orientation is.
Problems with washrooms and other gendered spaces are extremely frequent. In some cases, trans people have been arrested or otherwise harassed whether they were using using the washroom of their assigned gender or for using the washroom of their gender of identity. In other cases, non-trans people have been harassed because of their gender presentation; for example, a non-trans woman whose appearance is deemed too masculine by others may be harassed for using the women’s room.
Discrimination against trans people also takes place within the lesbian, gay, and bi community. Trans people may not have their genders of identity respected and may be refused admission, particularly to gender-segregated spaces but sometimes other spaces as well.
What are Canada’s international commitments on this issue?
In June 2008, with Canada’s support, the General Assembly of the Organization of American States adopted a resolution on human rights, sexual orientation and gender identity. As well, Canada is a signatory, with 67 other countries, to the draft text of the United Nations Statement on Human Rights, Sex Orientation and Gender Identity, which reads in part:
10. We call upon all States and relevant international human rights mechanisms to commit to promote and protect human rights of all persons, regardless of sexual orientation and gender identity;[…]
12. We urge States to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice;
13. We urge States to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity.
The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, an authoritative statement of how international human rights law applies with respect to these subjects, says in Principle 2:
a) Embody the principles of equality and non-discrimination on the basis of sexual orientation and gender identity in their national constitutions or other appropriate legislation, if not yet incorporated therein, including by means of amendment and interpretation, and ensure the effective realisation of these principles; […]
c) Adopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity;
And under Principle 28:
a) Establish the necessary legal procedures, including through the revision of legislation and policies, to ensure that victims of human rights violations on the basis of sexual orientation or gender identity have access to full redress through restitution, compensation, rehabilitation, satisfaction, guarantee of non-repetition, and/or any other means as appropriate; […]
c) Ensure that effective institutions and standards for the provision of remedies and redress are established, and that all personnel are trained in issues of human rights violations based on sexual orientation and gender identity[.]
Do we need both gender identity and gender expression in the bill?
Providing protection against discrimination based on gender expression as well as gender identity will insure broad coverage of people who are discriminated against due to their non-conformity with social ideas of gender. Besides transgender and transsexual people, people who may be discriminated against because they are not considered masculine or feminine enough or whose gender presentation is seen as ambiguous will be protected.
In New York City in 2008, the Transgender Legal Defense and Education Fund won a settlement in a human rights complaint based on gender presentation, in which a non-trans woman was ejected from a restaurant after using the women’s washroom because the bouncer thought, based on her appearance, that she was a man and refused to listen to her or check her ID. A Yale Law School professor quoted on the subject said that the woman’s claim was much stronger under the city’s ban on gender presentation discrimination than it would have been using New York State’s sex discrimination ban.
What can I do to help Bill C-389 pass?