OPEN LETTER – The Reality of Bill C-16
May 16, 2017
As the Bill C-16 Senate hearings continue, Egale wanted to take the opportunity to clarify any misconceptions and provide accurate information.
Bill C-16 is unnecessary because “sex” is already a protected ground.
Proponents against Bill C-16 will often suggest that including “gender identity” and “gender expression” as protected grounds is unnecessary, as “sex” is already protected from discrimination. They argue that the inclusion of gender identity and gender expression will weaken protections based on sex for women and girls, or that these two grounds are too ambiguous to be applied effectively.
Gender Identity and Gender Expression are distinct grounds from Sex, and they are necessary to protect people of all gender identities and expressions living in Canada.
While historically federal courts have interpreted “sex” as a ground that protects against gender discrimination, this interpretation conflates the concepts of sex, gender identity, and gender expression.
Sex refers to the classification of a person as male, female or intersex based on biological characteristics, including chromosomes, hormones, external genitalia and reproductive organs. Most often, sex is assigned by a medical professional at birth and is based on a visual assessment of external genitalia.
However, gender identity is a person’s deeply felt internal and individual experience of gender. This could include an internal sense of being a man, woman, both, neither or another gender entirely. And a person’s gender may or may not correspond with social expectations associated with the sex they were assigned at birth. Moreover, each person expresses their gender in a different way: through their clothing, speech, body language, hairstyle, voice, and other behaviours often associated with masculinity and femininity.
Distinguishing these concepts in legislation would recognize that not everyone has a sex, gender identity, and gender expression that align in conventional ways. This in fact strengthens protections for people who express their gender in diverse ways, such as masculine women or androgynous non-binary people.
Furthermore, the majority of Canada’s provinces and territories already include gender identity and gender expression as protected grounds of discrimination in their own human rights legislation; and these amendments have proven valuable and beneficial to transgender and gender diverse people living in those regions.
Finally, gender identity and gender expression are not any more ambiguous than other protected grounds. In fact, protected grounds are kept undefined so that they may be applied in ways that most benefit people living in Canada. To define gender identity and gender expression without defining other protected grounds would establish two tiers of human rights protections.
Bill C-16 will limit the freedom of speech and expression of people living in Canada by mandating what language one can use.
Proponents against Bill C-16 believe that additions to the Criminal Code regarding hate propaganda based on gender identity and gender expression will mandate how individuals must speak. Specifically, they believe that any instance of misgendering a person or using the wrong pronoun will result in a hate-based offence.
Bill C-16 does not alter what constitutes hate propaganda, but merely extends the protected grounds to include gender identity and gender expression.
Sections 318-320.1 of the Criminal Code outline what constitutes as hate propaganda or a hate promotion offence in Canada. These sections are not altered by Bill C-16, besides the inclusion of gender identity and gender expression as a section of the public distinguished as an identifiable group.
This means that any wilful promotion of genocide or hatred against an identifiable group will now include groups distinguished by their gender identity or gender expression, a change which will immensely benefit transgender and gender diverse people living in Canada. However, this does not mean the Criminal Code will require the use of certain pronouns or consider using the wrong pronoun for a person to be a hate-based offence.
This misconception arises due to provincial and territorial human rights legislation. For example, in the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression, refusing to refer to a person by their self-identified name or pronoun is considered gender-based harassment. And this applies to all people, not only transgender and gender diverse people. Notably, this policy has not led to widespread infringements on the freedom of expression since its release in 2014.
Bill C-16 will put women and girls in harm’s way.
Proponents against Bill C-16 often suggest that protecting gender identity and gender expression will allow individuals to take advantage of human rights legislation to gain access to gender-segregated spaces like washrooms. They believe this will lead to an increase in violence and harassment against women and girls.
Bill C-16, and previous versions of the bill, were created in part as a response to the high rates of violence and harassment transgender and gender diverse people face in public.
Fears around increasing rates of violence against women and girls due to human rights protections for transgender and gender diverse people stem from misconceptions around access to gender-segregated spaces like washrooms and change rooms.
Transgender and gender diverse people are at a higher risk of experiencing violence than the general population. An Ontario based study by TransPulse found that 20% of trans people “had been physically or sexually assaulted for being trans, and another 34% had been verbally threatened or harassed but not assaulted” (Bauer & Scheim, 2015). These risks of assault or harassment cause transgender and gender diverse people in Canada to avoid public spaces. In fact, “the majority (57%) of trans Ontarians had avoided public washrooms due to these safety fears” (Bauer & Scheim, 2015).
These statistics demonstrate that fears for the safety of cisgender women and girls due to the protections added by Bill C-16 are unfounded, and that safety concerns in public washrooms are a lived reality for transgender and gender diverse people living in Canada.
Bill C-16 will decrease the impact of services and programs aimed at women and girls, especially services for survivors of violence and abuse.
Proponents against Bill C-16 likewise claim that, with protections for gender identity and gender expression, services for women and girls such as domestic violence centres and shelters will no longer be able to effectively support this demographic. They suggest that transgender and gender diverse people are a safety concern for survivors of violence and abuse, or are a strain on resources.
Bill C-16 likewise responds to the high rate of homelessness and domestic violence experienced by transgender and gender diverse people living in Canada. Moreover, the provincial and territorial parallels to Bill C-16 provide legal precedents for gender-segregated services.
Just like rates of violence and harassment, transgender and gender diverse people living in Canada experience greater rates of homelessness and domestic/intimate partner violence than the general population.
A Canadian Labour Congress study found that transgender people are almost twice as likely (64.9%) to report experiencing intimate partner violence compared to the average rate experienced by men and women (17.4% and 37.6%, respectively; Canadian Labour Congress, 2014). And while disaggregated data on transgender and gender diverse people experiencing homelessness is not yet available, recent Canadian studies show that LGBTQI2S youth represent between 25-40% of Canada’s homeless youth population (Gaetz, Donaldson, Richter, & Gulliver, 2013).
Finally, provincial and territorial human rights protections, like the Ontario Human Rights Commission’s policy mentioned above, include guidelines around how transgender and gender diverse people should be able to access these sorts of services. Over the past decade, the shelter and support systems in these provinces and territories have developed practices that respect gender identity and gender expression and set a precedent for how gender-based services can align with human rights law.
We urge you, over the next three hearings and continuing debate surrounding Bill C-16, to consider the realities of transgender and gender diverse people in Canada. Adding gender identity and gender expression as protected grounds to human rights legislation will mark a significant step toward recognizing transgender and gender diverse communities as worthy of dignity and respect.
Egale Canada Human Rights Trust