Mercedes Allen

Canada's Trans Rights Bill: Quick Facts and Answers to Opponents

Filed By Mercedes Allen | November 08, 2010 8:30 AM | comments

Filed in: Politics, Transgender & Intersex

The following is some things I've written previously at DentedBlueMercedes, with a bit of updating. This is free to distribute, far-and-wide, for anyone interested in presenting the facts of what Canada's Trans Rights Bill, C-389, proposes to do (it doesn't even have to have my name on it, just don't claim to have written it).

CA_Grunge Canadian Flag-.jpgThis comes from a Quick Facts article and one that has some additional information about gender expression that is not included below and worth looking through as well. What is new here is an update on Bill C-389's journey to become law, and the religious right's fear-mongering response to its recent passage through the Standing Committee on Justice and Human Rights, moving toward third reading and final vote in the House, likely in December.

Bill C-389 proposes to add gender identity and gender expression to the Canada Human Rights Act and the Criminal Code of Canada hate crimes provisions. (The full text of the bill.)

Here are some quick facts:

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

Gender Expression refers to the way a person expresses their gender through dress, mannerisms, presentation and role. Usually refers to non-transsexual transgender people, and can also touch on issues faced by cisgender (non-trans) Canadians who experience discrimination because of dress sense, mannerisms and other aspects of presentation that run afoul of the perceived "rules" of gender. More information on gender expression, and how protections will assist more than just trans Canadians can be found on my blog.

Q: Aren't transsexuals already protected?

A: While it is true that there is implicit inclusion for transsexuals alternately under the category of "sex" or "gender" (depending on the wording of the specific Province in question), clear and unambiguous protection is important to be codified in law to avoid an unexpected overrule that would create a new contrary precedent.

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

Q: Would this conflict with the rights of other groups?

A: The role of the judicial system in human rights issues is ideally to interpret law in a way that is most equitable for the stakeholders involved, while also protecting those at a disadvantage. In Canada, the law needs to accomodate up to the limit of "undue hardship," a caveat that prevents any one protected class from trumping another unreasonably. It then becomes the court's duty to determine when undue hardship occurs, and balance the rights of those involved, in the context of the situation at hand.

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

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

Q: Would this enable predators to access washrooms in order to prey on women or children?

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

Additionally, the bill says nothing about washrooms -- trans predator rhetoric echoes the same kinds of claims once used to create panic about gay men and lesbians or other historical "bogeymen" used to spread fear of racial and cultural groups. However, this is one of the platforms of opposition now being raised in response to the bill, so let me add the following:


Although it has limited effectiveness (more about why in a minute), there has been a drive from the religious right in the U.S. to start defining laws to prevent male-to-female crossdressers from using womens' restrooms using inflated caricatures to generate panic, and then also enforce those rules also against transitioning and transitioned (even post-surgical) transsexuals. Trans protections have existed in over 125 jurisdictions in North America, some as far back as 1975, and during that time, there has been no pattern of criminal behaviour in restrooms by specifically trans people (of any stripe) compared to any other segment of the population. And certainly, transsexuals (and some traveling crossdressers as well) have used restrooms in travels for as long as we've existed - and using them with a desire for privacy, like anyone else (with the way washrooms are designed in North America, public nudity is not an issue). It's important to note that unethical or illegal behaviour in restrooms remains unethical or illegal, and trans-protective legislation does not change that (and in practice, has not facilitated any kind of increase). The trans washroom argument plays on a trans predator assumption which has no basis in reality.

Gender-neutral (i.e. single-stall, locking restrooms) are often pointed to as a compromise, and where they are readily available and when one's presentation is likely to cause discomfort from others, I recommend using them out of respect to a reasonable extent (and segregated alternatives in any instances such as showers where actual nudity might occur) - however, I do not see this as a final, concrete compromise solution. Gender-neutral restrooms are not always accessible (i.e. may not be present, may be distant, may be occupied during an emergency). And reliance on them as a sole option for trans people creates a Jim Crow-esque separate-but-not-equal othering climate all for the sake of sparing people from having to acknowledge that trans people exist. We don't restrict physically disabled people from public spaces because of a concern that they might make people feel guilty or awkward due to ableism or because folks might have to explain to their children about limb loss or Downs Syndrome. A transgender person is a person in your neighbourhood - see what I said above about risk, and get over it. I don't say this without empathy for the anxieties experienced by rape survivors - however, fear of rape was once used to whip up anxiety about gay men in mens' rooms, lesbians in womens' rooms and years before about African Americans sharing restrooms with white people: the use of panic to exclude entire classes of people wasn't right then, and it's not any less so now.

Updated Information

Bill C-389 passed the Standing Committee on Justice and Human Rights without changes. It now heads toward third vote and final reading, likely in December.

It's not over after that. Afterward, the Bill needs to go through three readings in the Senate. I don't know how long that takes -- I believe it's a much shorter time frame than as with a private member's bill like C-389 takes in the House (this one has taken about a year and a half or more). It is true that opposition parties could unite to topple the Conservative government, causing an election to take place, and this would end passage though the Senate. However, the opposition parties have largely supported Bill C-389. If this happens, then we need to push them for a commitment that if any of these parties come to power in Canada, they'll re-introduce this bill as a government bill, passing it in a much shorter time frame. LGBT Canadians would need to work together on this.

The Far Right Response, Gwen Landolt of REAL Women of Canada and Brian Rushfeldt of Canada Family Action Coalition (which was formed with assistance of and retains ties to Focus on the Family) have united to respond to Bill C-389, raising the washroom panic (addressed above) and claiming that:

"The bill's extremely dangerous," [Gwen Landolt] said. "It's alright to be in favour of human rights, which we all support, but this is being in favour of a mental illness, and playing into it. It's not good for individuals, let alone society."

"It's extremely dangerous for children to be taught that transgendered is equal to heterosexual and normal gender," she continued, pointing out that the American College of Pediatricians warned this spring that sexual confusion should not be reinforced.

These are two new memes, since the religious right in the US is realizing that the washroom fearmongering and attempts to conflate us (as is usually done with any emerging communities) with predators has limited effectiveness once the facts are known.

The medical community has been coming to realize that transsexuality is not dismissable as an irrational mental illness, and has been looking to adapt to find a way to codify a diagnosis that acknowledges the reality that people can have an identity that is out of sync with their birth sex which is not just "all in their head," as witnessed by the facts coming forward in the many medical studies into a possible biological origin of transsexuality. References are all over the Internet on this, so I'm not sure what to link to, except maybe the American Medical Association's affirmation that gender dysphoria is a real enough condition that it does call for transsexuals having access to health care that provides for gender reassignment surgery if they need it.

The second meme cites the American College of Pediatricians, since this is as close as they can get to a legitimate-sounding medical body to oppose the rights and validity of transsexuals. In fact, despite its name, the ACP is a non-authoritative body that screens its membership according to far-right views on abortion and homosexuality, and is therefore not representative of pediatricians in general. It was in fact founded by ex-gay therapists, including Joseph Nicolosi of NARTH and the infamous George "carry my bags, dear rentboy" Rekers. The American Academy of Pediatricians is the accepted authority, and has responded in emphatic opposition to the ACP publication that Landolt cites in this article.

Curiously, the Lifesite article says that "that the government asked NDP committee member Joe Comartin to move that all clauses be carried." By this, they're trying to embarrass the federal government into fighting passage tooth and nail. But there may be some truth to it. Some Conservative MPs, who either have past familiarity with transsexuals because of family or friends who've transitioned, or who have met with trans constituents do in fact support the bill (again, the reality dispels a lot of the myth, and that is why it is so important to tell our narrative). Xtra reports that there was concern that with the possibility of an impending election, time was of the essence:

"Maybe a couple of people obviously voted against it, but a general consensus that the bill was so straightforward, the amendments so small both in number and in consequence, that we didn't have to call witnesses, we didn't want to go through a detailed analysis of what it was going to do because it was so straightforward," Comartin says.

The fact that there were no hearings does disappoint Siksay.

"I think it would have been great if we'd been able to have transgender and transsexual people speaking for themselves before the committee," he says. "That was their opportunity to talk about why this was an important change."

Some organizations did submit briefs on transsexuality and Bill C-389, although it is uncertain whether they were distributed prior to the meeting. I may post one on my blog as we get closer to Third Reading.

To support this bill, you can:

  • Express your support to your Member of Parliament
  • Here is a letter you can download, fill in the blanks and mail in (postage to Parliament is free) to show your support.
  • If you see Bill Siksay, thank him for tirelessly bringing trans rights to the forefront, in his long trek to make this bill a reality.

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Mercedes, hope it goes through and thanks for this amazing discussion of the bill. *feelings of intense Ammurikkan jealousy*

" on them as a sole option for trans people creates a Jim Crow-esque separate-but-not-equal othering climate all for the sake of sparing people (italics mine) from having to acknowledge that trans people exist. We don't restrict physically disabled people from public spaces because of a concern that they might make people feel guilty or awkward due to ableism or because folks might have to explain to their children about limb loss or Downs Syndrome."

Thank you for your comments about bathroom/public facility issues-particularly the above quote. Creating seperate facilities is discriminatory and sends the -loud- message; That non-trans people's ignoranance and fear is justified, and that their discomfort or awkward feelings about transpeople trumps our freedoms. The fear isn't justified and the argument is specious. It assumes privilege and is repugnent.

I almost gagged when I heard an NPR interview lending credibility to the idea that personnel being uncomfortable "serving alongside openly gay and lesbian people" will damage unit cohesion. The only cohesion that will be damaged is the solid bigotry such utterances reveal.

Thank you for writing this :) great detailed information on all of it

Thanks for the info, Mercedes. I hope you continue to keep us updated.

Sorry for not replying sooner.

@ Gina, I can empathize. With the long road it takes and obstacles to get here, for the longest time, it was looking like ENDA would be a reality decades before here. BTW, if my text here will help advocate for ENDA, it is also free to use for that purpose. There will be some differences, i.e. "undue hardship" might not be a factor.

Thanks everyone for the comments, and we'll hopefully see more good news in December.