Look out Canada the following is BILL C-279
An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression)
The following is taken from Openparliament.ca Randall Garrison (Esquimalt—Juan de Fuca)
Canadian Human Rights Act
April 5th, 2012 / 2:20 p.m.
Canadian Human Rights Act
Private Members' Business
Randall Garrison NDP Introduced as a private member’s bill. (These don’t often become law.)
Introduction and First Reading
All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.
NDP
http://openparliament.ca/politicians/randall-garrison/Randall Garrison Esquimalt—Juan de Fuca, BC
moved 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.
Mr. Speaker, I am honoured to lead off the debate at second reading of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).
I am honoured to stand in this House and carry on the NDP tradition of standing up for the rights of transsexual and transgendered Canadians. I would also like to thank the 18 seconders of my bill for their support, which demonstrates the broad support that this bill has in this Parliament.
As many will be aware, this bill passed the House of Commons some two years ago in February 2011 but died on the order paper in the Senate when the 2011 election was called. I am hoping that we will have sufficient support once again from all parties in this House to adopt this very necessary bill.
moved for leave to introduce Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).
Mr. Speaker, this is a reintroduction of the bill that passed this House before the last election but, unfortunately, not the Senate. There is an urgent need for this legislation to help end the discrimination, social exclusion and. all too often. violence that face transgender Canadians.
I hope to work with members from all parties to ensure that this important bill becomes law. Let us take this step together so that all the Susans, Regans, Jordans, Daphnes, and all our other transgender friends and family members can take their rightful place in all aspects of Canadian life.
(Motions deemed adopted, bill read the first time and printed)
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ConservativeDean Allison Niagara West—Glanbrook, ON
http://openparliament.ca/politicians/dean-allison/Mr. Speaker, I personally believe that the discrimination, persecution or incitement to hatred of any group, based on sex, race, religion, should not be tolerated.
Today we are here to talk about Bill C-279, which proposes to make three changes to the law.
The first would be to add “gender identity” and “gender expression” to the list of prohibited grounds for discrimination in the Canadian Human Rights Act.
Second, it would add “gender identity” and “gender expression” to the definition of identifiable groups to section 318 of the Criminal Code. It would be an offence to advocate or promote genocide, to publicly incite hatred, likely to lead to a breach of peace, or to wilfully promote hatred against groups that are identifiable on the basis of gender identity and gender expression.
Third, it would add “gender identity” and “gender expression” to section 718.2 of the Criminal Code, which would direct a judge to consider increasing the sentence beyond its usual range for an offence that was motivated by bias, prejudice or hate based on gender identity or gender expression.
These three changes are unnecessary.
I will begin with the proposed amendments to the Canadian Human Rights Act. The act already prohibits discrimination on the grounds of sex. This means that the act prohibits hiring decisions based on prejudice against women or men. It prohibits sexual harassment in the workplace. It requires reasonable accommodation for pregnancy. The act protects against these and other kinds of sex discrimination in the federal workplace and elsewhere in federal jurisdiction.
The Canadian Human Rights Act does not require total blindness to the distinction between men and women. Instead, the task of this law is to intervene in situations where people experience certain kinds of discrimination on the grounds of sex.
Canadian society recognizes that there are gender norms. When attitudes and practices involving gender become sex discrimination, the law should and does intervene. However, the law cannot simply abolish gender categories and gender norms in Canadian society. Nor can tribunals and courts be asked to reconstruct and interpret gender norms. That is an unrealistic view of what the legal system is empowered and entrusted to do.
We heard in the course of debate on the previous version of this bill, Bill C-389:
Transsexuals are people whose gender identity differs from their biological or birth sex, and who seek to live permanently as the gender other than their biological sex. Most often transsexuals seek medical interventions such as hormones and surgery to make their bodies congruent with their sense of their genders. A transition process which is known as sex reassignment or gender reassignment is engaged.
In the case of transsexualism, the law has found that gender categories and gender norms cause unfair disadvantages to those people. Transsexuals might not fit social norms due to their unique situation, but as interpreted in numerous decisions, the Canadian Human Rights Act already protects against discrimination on the basis of transsexualism. This is one situation where the law has intervened in order to remedy a form of sex discrimination.
I understand that there is an intention to cast more light on the disadvantages faced by transsexuals, but what Bill C-279 proposes to do goes far beyond that. The bill does not name a particular group of people in order to protect them from a distinctive kind of discrimination. Instead, it proposes two characteristics, “gender identity” and “gender expression”, that everyone has. Everyone has a gender identity and everyone expresses their gender, intentionally or unintentionally, in some way or other.
I would like to repeat that some gender norms may be problematic. Some have been found to be discriminatory and have been prohibited. The Canadian Human Rights Act already protects against sex discrimination. Under this rubric, it also protects against discrimination on the basis of transsexualism. Therefore, it is not clear what problem the proposed amendment is hoping to solve. Again, it is unnecessary and an unpredictable response to very particular problems.
This brings us to the next problem arising from the bill. To the extent they seek to reach beyond transsexualism, the new grounds of gender identity and gender expression are vague.
How would anyone know whether one's expressive act is gender expression if there can be no assumptions about how each gender is expressed? Can people act in any way they choose, so long as they claim to be expressing their conception of their gender? If that is the case, then the ground of gender expression will have no limits and have very broad implications. Or will it be up to courts and tribunals to decide what kinds of characteristics express gender and which do not?
It would also create much uncertainty about the meaning of these new grounds and perhaps increased litigation.
The proposed wording is vague and it makes the proposed amendments to the Canadian Human Rights Act unwise, especially since they are unnecessary to address what seems to be to the core issue, which is discrimination on the basis of transsexualism.
Vagueness has even more serious implications when we turn to the proposed amendments of the Criminal Code.
The proposed amendments to the hate propaganda offences protect new identifiable groups, namely, those identifiable on the basis of gender identity and gender expression. The hate propaganda offences are serious. Convictions can result in sentences of between two and five years. The offences also limit freedom of expression, a core Canadian value, and must clearly be delineated so Canadians will know where the limit is drawn.
Given the stakes involved, it is important to know which groups are identifiable on the basis of gender identity and gender expression. Transsexualism might define an identifiable group but, again, the proposed new grounds go far beyond transsexualism.
Gender expression is expressly problematic. How does a speaker know when a characteristic is one of gender expression. If a speaker says strong words against people with certain behaviours, can that be made into hate propaganda on the basis of gender expression simply if those people claim their behaviour to be the way of expressing their gender identity? We are left in the dark about who the identifiable groups will be. It is especially problematic in these offences, which will criminalize speech without clear notice of what can and cannot be said.
Ultimately, it would be left to the courts to decide which aspects of people's behaviours were expressions of gender and which were not. This is not their role. It would also leave the public unaware of what would be prohibited, as we waited for the courts to reconstruct Canadian gender norms for us.
These same uncertainties attach to the proposed amendment to section 718.2. This section directs a sentence be increased for an offence that was motivated by bias, prejudice or hate based on certain personal characteristics. The list of such characteristics is open-ended and includes, “any other similar factor”. I understand that one purpose of this bill is to make explicit what may already be covered by a bad open-ended phrase. However, by adding “gender identity” and “gender expression”, what is made explicit are very vague terms. This would be counterproductive amendment.
I believe these technical arguments in themselves give just cause to vote against Bill C-279.
However, I would also like to discuss a very real concern that was expressed during debate on an earlier version of this bill from the previous Parliament. In fact, this argument resulted in the previous bill being dubbed the “bathroom bill” in certain quarters.
The fact is that creating a right to gender identity and gender expression would likely result in men who are in gender reassignment therapy having access to girls' bathrooms. As the bill would also give special rights to those who simply consider themselves to be transgendered, the door would be open to sexual predators having a legal defence to charges of being caught in a women's washroom or locker room.
I find this potentially legitimized access for men in girls' bathrooms to be very disconcerting. As sexual predators are statistically almost always men, imagine the trauma that a young girl would face, going into a washroom or a change room at a public pool and finding a man there. It is unconscionable for any legislator, purposefully or just neglectfully, to place her in such a compromising position.
The bill would not address this very real possibility and in itself is reason for me to personally not support it.
The bill is an unfocused and unpredictable response to the very particular challenges that are faced by transsexual persons. The amendments to the Canadian Human Rights Act and the Criminal Code are unnecessary and I will not support the bill.
