About EGALE
Protection of Transgendered People from Discrimination
Analogous and Multiple Grounds of Discrimination
Discrimination against those Associated with a Protected Group/Perceived grounds
Recommendations
Introduction
EGALE applauds the initiative taken by the B.C. Human Rights Commission to improve the application of the B.C. Human Rights Code in a number of areas. We are pleased to provide substantive comments on a number of particular issues raised by the Commission concerning proposed amendments, particularly with respect to the treatment of gender identity, with respect to multiple and analogous grounds of discrimination, and with respect to perceived and associated grounds of discrimination.
About EGALE
EGALE (Equality for Gays and Lesbians Everywhere) is a national organization committed to advancing equality and justice for lesbians, gays and bisexuals. We have members in every province and territory of Canada, including two Board members in British Columbia. EGALE has intervened before the Supreme Court of Canada in the cases of Egan v. Canada, dealing with equal old age security benefits for same-sex couples, and Mossop v. Canada, concerning the ability of gays and lesbians to obtain equal funeral leave. EGALE is also intervening before the Ontario Court of Appeal in CUPE & Rosenberg v. Canada, which deals with changes to the Income Tax Act to extend equal pension benefits to same-sex couples, and has recently been granted intervenor status before the Supreme Court of Canada in Vriend v. Alberta, a case which addresses the obligation of the Alberta government to add “sexual orientation” to its human rights legislation as a prohibited ground of discrimination. In addition, EGALE members have testified as witnesses before Canadian Human Rights Tribunals.
EGALE has also been active politically in lobbying for changes to ensure the equal treatment of gays and lesbians in Canadian laws.
EGALE has met with members from every federal political party and was active in securing amendments to the Canadian Human Rights Act to add “sexual orientation” as a prohibited ground of discrimination. In British Columbia, EGALE supported the government’s recent initiative to include same-sex couples in the definition of spouse in the Family Relations Act. EGALE is a member of the International Lesbian and Gay Association and has sent representatives to the United Nations World Conference on Human Rights in Vienna, the United Nations World Conference on Women in Beijing and the International Year of the Family Conference in Montreal.
Protection of Transgendered People from Discrimination
Although EGALE has members who are transgendered, we do not purport to represent or speak on behalf of the transgendered community. We do, however, have a commitment to working in coalition with other equality communities to redress discrimination, and we strongly believe that no-one should have to endure unjust discrimination which limits their ability to participate fully in Canadian society. We therefore offer our unequivocal support to amending the B.C. Human Rights Code to protect transgendered people from discrimination. Our support draws on the following principles:
It is necessary in our society that protection be available to all persons facing discrimination;
There is ample evidence from transgendered persons that discrimination on the basis of gender identity occurs;
Adequate protection from such discrimination is simply not available using existing grounds in the B.C. Human Rights Code; and
The transgendered communities have the basic right to define for themselves the terms and the language used in the Code to protect transgendered people from discrimination.
In addition, we note a number of parallels between the discriminatory treatment of lesbians, gays and bisexuals and the discriminatory treatment of transgendered persons in our society. EGALE’s work for over ten years has been devoted to the advancement of equality for all persons regardless of sexual orientation. We have often been called upon to demonstrate the long history of discrimination, abuse and violence directed at individuals who were or who were perceived to be gay or lesbian. We have worked in coalition with representatives of other communities to address jointly specific issues relating to human rights protection in the belief that discrimination against any one group is a threat to all. The lack of protection for transgendered people represents a significant weakness in existing human rights law. As noted in the Report of the all-party Parliamentary Committee on Equality Rights, “Equality for All” (October 1985, p.25):
“To leave one group of citizens beyond the pale is a dangerous precedent. In a democracy, it is equally dangerous to leave the decision about inclusion or exclusion of any particular group from human rights safeguards to the will of the public at any moment in history.”
The work of individuals from the transgendered community to document the history of discrimination on the basis of gender identity, particularly the work of the Transgendered Law Reform Project, exhibits a remarkable similarity to studies within the lesbian, gay and bisexual communities, with comparable and painful stories of personal rejection, job losses, refusal of services, harassment and violence.
We agree with the analysis contained in the report of the Transgendered Law Reform Project that existing grounds of protection in the Code do not meet the needs of transgendered persons, and note that a similar problem existed for lesbians and gay men until sexual orientation was adopted into Canadian human rights codes. Simply put, the particular gender identity problems an individual might face cannot properly be squeezed into existing grounds of discrimination, just as sexual orientation issues could not. Canadians should not be denied human rights protection, or forced to try and fit themselves within existing grounds which are not necessarily applicable, in order to be able to seek redress against discrimination. The only credible solution is to prohibit directly discrimination against transgendered people.
We note also that in Haig v. Canada, (1992) 94 DLR (4th) 1, the Ontario Court of Appeal ruled that the Canadian Human Rights Act was unconstitutional for failing to provide protection from discrimination on the analogous ground of “sexual orientation”. Identical reasoning could well apply to a human rights act which fails to provide protection from discrimination on the ground of gender identity. We consider that the B.C. Human Rights Commission is acting responsibly to protect itself from a constitutional challenge by explicitly protecting transgendered people from discrimination in the Code.
Needless to say, an amendment to the Code does not by itself serve as a remedy for all the issues that transgendered persons face. Discrimination will continue, but the community affected will have a new tool at its disposal. It will take time for the utility of this tool to become apparent as specific cases are acted upon and as tribunal decisions become known in the larger community. In the lesbian, gay and bisexual communities, inclusion in the Code has proved useful and necessary, but not sufficient, and we suspect that the same will hold for transgendered persons. We note as well the wide diversity within the transgendered community (including transgendered persons, transsexuals, transvestites and others, each of whom may have differing sexual orientations), which like our own may therefore require varied and flexible responses to particular conditions.
Thus, in addition to the importance we attach to amending the Code, EGALE emphasises the immense educational value of the proposed amendment. Explicit human rights protection does raise public awareness and understanding of the needs of disadvantaged groups. As sexual orientation questions have become more familiar to the public, for example, polls have shown an increased acceptance that discrimination against us is wrong. Former President of the Quebec Human Rights Commission Francine Fournier has pointed out:
“Gay people are more widely understood and accepted than we commonly believe and this understanding and acceptance increased considerably [in Quebec] with the explicit recognition of their rights.”
Unfortunately, we live in a society where many people are taught that it is acceptable to hate those who are different because of factors such as sexual orientation or gender identity. The lack of clear legal denunciation of transphobic discrimination legitimizes that discrimination. The remarks of one commentator in the context of sexual orientation are equally applicable in the context of gender identity: (Prof. Cynthia Petersen, “A Queer Response to Bashing: Legislating Against Hate”, 16:2 (1991) Queen’s Law Journal 237)
“Mainstream culture … relegates [us] to the periphery of society. Our cultures are suppressed, our histories erased, our families ignored, our communities ridiculed and our contributions devalued. We are so degraded, stigmatized, and marginalized that the normative restraints of members of the mainstream culture are neutralized. At best, we are seen to occupy merely peripheral space and are socially defined as worthless. At worst, we are perceived to be socially infectious and are believed to be worthy of extinction. [Violence and discrimination are] not only tolerated, [but] encouraged by mainstream culture.”
While legislation cannot change prejudiced attitudes overnight, it can provide the educational foundation for a more informed perception of transgendered rights. The present consultations are an important step along the same road for gender identity issues, and in addition to the proposed changes to the Code, the Commission itself should take advantage of the opportunity to use its mandate for public education to reduce the potential for future discrimination.
In summary, we support fully the proposed changes to the Code to protect transgendered people and would like to express our hope that the transgendered community will not have too long a wait for their genuine welcome in our society. We wish to emphasize, however, that transgendered people have the basic right to self-determination, and to identify for themselves the terms on which they are protected from discrimination under the Code. It is important that the Human Rights Commission take direction from the transgendered communities concerning the language used in the Code to protect transgendered people from discrimination.
Analogous and Multiple Grounds of Discrimination
EGALE supports the principle that the grounds of discrimination should be extended to include grounds which are “analogous” to the existing grounds. It has long been recognized that the grounds of discrimination are not static, and an “analogous grounds” approach will enable the Code to be applied flexibly to meet the challenges of the 21st century. Protecting analogous grounds will also ensure some measure of protection against constitutional challenges such as those described in Haig v. Canada, above. An analogous grounds approach does not obviate the need, however, for explicit protection of transgendered people. Only explicit inclusion can guarantee the much-needed protection from discrimination of transgendered people, and only explicit inclusion of this ground can advance the educational goals of the proposed amendment.
EGALE does, however, wish to underline that any “analogous grounds” section must not be worded in such a way as to open the door to new defences, particularly any defence fashioned on s.1 of the Charter. Such defences have no place in human rights legislation. In this regard, EGALE recognizes that the December 9th Coalition has held community consultations and done much work in the area of the pitfalls of such a provision, and we would urge the Commission to take direction from the December 9th Coalition when drafting the “analogous grounds” clause.
EGALE does not agree, moreover, with the suggestion on p.3 of the discussion paper “Human Rights for the Next Millennium” that protection of analogous grounds would remove the need for protection of “multiple grounds of discrimination”. These are separate issues, and should not be confused. “Analogous grounds” provides scope for the development of new grounds over time. “Multiple grounds” recognizes that the existing grounds of discrimination are often inextricably linked. A native lesbian, for example, faces discrimination because of her race, her gender and her sexual orientation. The discrimination she experiences in a particular instance may not fit neatly into any one of these categories, and she should not need to prove that what she experienced was wholly race discrimination or sex discrimination or sexual orientation discrimination. Nor should she need to prove that native lesbians are an “analogous” group who are “just like” groups which face discrimination because of religion or race or another existing ground. Instead, the legislation should recognize that discrimination is often based on more than one ground simultaneously, or as the result of a combination of a number of grounds.
By way of example, the equality guarantees of the Canadian Charter of Rights and Freedoms are open-ended, enabling the recognition of analogous grounds of discrimination. The Chief Justice of the Supreme Court of Canada has nonetheless remarked that there may well be circumstances where recognition should also be given to overlapping or multiple grounds of discrimination (Canada v. Mossop [1993] 1 SCR 554, 582, per Lamer CJ).
The federal government has proposed amendments to the Canadian Human Rights Act which will prohibit discrimination based on multiple grounds. We recommend that a similar provision be added to the B.C. Human Rights Code.
Discrimination against those Associated with a Protected Group/Perceived grounds
EGALE fully supports the proposal that discrimination against people who are related to or associated with members of a protected group should be prohibited. In addition, we believe that people should be protected from discrimination if they are perceived to be a member of a group covered by the Code. Sometimes people face discrimination because they exhibit characteristics that are associated with a disadvantaged group. A man who is effeminate, for example, or a woman who is masculine, may well face discrimination because he or she is perceived to be lesbian or gay, even though he or she is in fact heterosexual. Such discrimination is based on intolerance and stereotyping, and should equally be prohibited. Although case-law supports the principle that discrimination based on the respondents’ perceptions is covered by the Code, we feel that this should be made explicit in the legislation, both in the interests of clarity and in order to enhance the educational value of the legislation. Care should be taken in drafting to ensure that this principle is made applicable to all the grounds of discrimination.
Recommendations
EGALE strongly supports an amendment to the B.C. Human Rights Code to prohibit discrimination against transgendered people.
EGALE recommends that the B.C. Human Rights Commission include gender identity issues within its mandate for public education.
EGALE supports extending the provisions of the Human Rights Code to analogous grounds, and recommends adding a provision to prohibit discrimination based on multiple grounds.
EGALE supports extending the provisions of the Human Rights Code to persons related to or associated with a protected group, and recommends adding a provision to prohibit discrimination against those who are perceived to belong to a protected group.