Proceedings of the Standing Senate Committee on
Human Rights

Issue 28 - Evidence - June 10, 2013


OTTAWA, Monday, June 10, 2013

The Standing Senate Committee on Human Rights met this day at 4:01 p.m. to study Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity).

Senator Mobina S. B. Jaffer (Chair) in the chair.

[Translation]

The Chair: Honourable Senators, I call to order this 34th meeting of the Standing Senate Committee on Human Rights in the 41st Parliament. Our committee has received from the Senate the mandate to examine issues relating to human rights in Canada and abroad.

[English]

As a reminder to those watching, these committee hearings are open to the public and are available via webcast from the parliamentary website. You can find more information, such as the schedule of witnesses, on the website under Senate committees.

Honourable senators, today we are conducting a study on Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity). This bill amends the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination. The bill also amends the Criminal Code to include gender identity as a distinguishing characteristic protected under section 318 and as an aggravating circumstance to be taken into consideration at the time of sentencing under section 718.2.

Today, we have a very full panel and we have many witnesses, so may I respectfully urge every presenter to not go for more than five minutes. I have an understanding from the senators, and they have many questions of you. I have to strictly monitor the presentations. Please bear with me.

We will call the Canadian Civil Liberties Association first, via video conference.

Noa Mendelsohn Aviv, Director, Equality Program, Canadian Civil Liberties Association: Thank you for inviting us to address this important bill. The Canadian Civil Liberties Association is a national non-partisan, non-profit, non- governmental organization. We try to protect and defend constitutional and fundamental rights and freedoms. As such, we strongly support the provisions put forward in Bill C-279 for reasons that are compelling both in policy and in law.

It is the Canadian Civil Liberties Association's view that these amendments are overdue and that it is important that discriminatory acts against transsexual peoples be addressed, in part because of the disproportionate discrimination suffered by transsexual people. Such discrimination has been made clear in a number of studies, in particular one by Catherine Taylor at the University of Winnipeg.

She found that 90 per cent of trans youth hear transphobic comments in their schools; 74 per cent are verbally harassed about their gender expression; 25 per cent are physically harassed; 24 per cent have their property stolen or damaged; 78 per cent of trans students reported feeling unsafe at school and missed out on school days as result. There is a high suicide rate among trans youth, and so forth — discrimination against trans people at this point is fairly well- established and well-known.

It has also been noted by the United Nations Special Rapporteur on the Question of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, who discusses discrimination against trans people. I assume this committee and senators are familiar with that.

I want to talk about the reasons why it is important that Bill C-279 be passed. We know that gender identity and gender expression have already been read into the Canadian Human Rights Act. Why does it need to appear explicitly in the legislation? That is the only question before the committee. The first place we have to start is the issue of invisibility.

In our view, that goes together with the earliest and worst part of discrimination against any marginalized people. If we go to the earliest ancient ideas of democracy or equality, we know that women were not included in those notions and neither were people of colour. They were simply not seen as the people who received those fundamental rights of democracy or equality, and that did not change for a very long time.

When the incredible human rights laws in Canada were first enacted, they did not include sexual orientation — or at least many of them did not. The reason people did not mention sexual orientation was because people did not think about gay people unless they were themselves gay. Gay people knew that they existed and knew they were being discriminated against, but to many good, equality-seeking Canadians who wished to protect human rights, gay people were simply invisible.

It has not been that many years, since 2003, and we are now celebrating 10 years of the anniversary of the first same- sex marriage in Canada. We are hearing people say that Canada is on the right side of history when it comes to sexual orientation and same-sex marriage, but when it comes to discrimination against trans people, we are only just starting to acknowledge — for some people — the existence of trans people and certainly the discrimination they are facing and the need to address it.

Bill C-279 will make it visible and will name it for what it is. The United Nations has repeatedly affirmed that all human beings are born free and equal in dignity and rights, and that certainly includes trans people.

I will mention a few other reasons, because I see that my time is running short. By naming gender identity in the Canadian Human Rights Act, Bill C-279 will act as an important deterrent against transphobic discrimination and hate crimes before they occur. The bill will provide a mandate for proactive, educational and anti-discrimination initiatives with respect to trans people on the part of the Canadian Human Rights Commission. The proposed amendments will also bring the federal legislation in line with key developments in other jurisdictions, in provinces and in territories, as well as with Canada's international commitments in which Canada is, for example, a signatory to the United Nations' statement on sexual orientation and gender identity in which it committed to combatting violence and discrimination because of gender identity.

In conclusion, for all of the above reasons, CCLA urges this committee to provide its support for Bill C-279. The time has come to move forward in history and for trans people, to recognize the discrimination against them as the first effort to address, rectify and hopefully put an end to discrimination against trans peoples.

The Chair: Thank you. I appreciate your sticking to the time. It will give the members more time to ask questions. We will go on to REAL Women of Canada, Diane Watts, Researcher, and Mary Muys, Member of the Board of Directors.

Diane Watts, Researcher, REAL Women of Canada: Thank you for inviting us to provide evidence before this committee. REAL Women of Canada respects the rights of all Canadians, but we oppose Bill C-279 for three reasons. First, it is unnecessary because citizens who identify as transgender are, like all Canadians, already protected by the Canadian Human Rights Act and the Criminal Code. We provide two Human Rights Commission cases to support our position, including B.J.'s Lounge in Victoria and the Vancouver Rape Relief Society.

Second, terms used in the bill are vague and expected to be defined by courts and tribunals, as stated by the sponsor of the bill. This is the reason the Minister of Justice opposes this legislation.

Third, Bill C-279 will cause harm. It is not just a simple bill merely extending human rights protection to another category of individuals. It has far-reaching ramifications for Canadian society, and based on credible medical studies, the consequences of the bill will be harmful to transgendered individuals themselves.

Parliament is open to all those who have an interest in proposed legislation. Surprisingly, witnesses appearing before this committee favouring Bill C-279 far outnumber witnesses who present equally important evidence in opposition. There are many experts who could provide the Senate with testimony, such as André Schutten of ARPA; psychiatrist Dr. Joseph Berger on delusion and psychosis; ethicist Margaret Sommerville on children and transgenderism; Dr. Judith Reisman on puberty blockers used on children; Walt Heyer, an ex-transgender who speaks and writes about his negative experience with transgenderism. There are transgendered who oppose very strongly this bill. There is deep discord among those who identify as GLBT et cetera over the transgender issue, sometimes expressed profoundly in hostile manners. Some totally reject gender expectations and refuse to identify as either male or female, so there is a wide range of people who will not be represented before the committee. In our brief, we include the testimony of Dr. Paul McHugh, former director of the Department of Psychiatry and Behavioral sciences at the Johns Hopkins School of Medicine and psychiatrist-in-chief at Johns Hopkins Hospital, which reached a consensus to end gender reassignment surgery. We have sent a letter to senators, including the testimony of Toronto psychiatrist Dr. Joseph Berger, distinguished Fellow of the American Psychiatric Association.

Areas that have not been examined are the effects of gender reconstruction on the spouses, children, parents and families of the transgendered. There was also an important survey on bullying and harassment carried out in 2012 by the Ottawa-Carleton District School Board which produced results at variance with the Egale study presented before this committee on June 3. Reasons for bullying were mostly related to general appearance and clothing at 50 per cent, grades, ethnic background, religion, family income, with sexual orientation the lowest at 5 per cent.

A study was conducted in Sweden by various departments of Karolinska Institutet of post-operative transsexual persons, which was unique in that it included the results of a nationwide longitudinal study of 30 years with minimal loss of follow-up. Published in 2011, this study found higher rates of overall mortality, death from cardiovascular disease and suicide, suicide attempts, psychiatric hospitalizations in sex-reassigned transsexual individuals compared to a healthy controlled population.

We believe it is harmful to encourage this type of attempt to change one's gender.

The history of transgender identity and expression leads us to the Geneva-based United Nations Human Rights Commissioner's controversial recommendation that gender identity and expression be protected rights. This proposition was overwhelmingly rejected by the Human Rights Council in March 2012 on the basis of vague terminology and the universality of the UN Declaration of Human Rights.

The Yogyakarta Principles, the source of the gender identity definition for Bill C-279, are vague and overbroad and can be interpreted to interfere with the rights of parents to provide gender-confused children with professional treatment. By interfering with parental authority, the Yogyakarta Principles contradict provisions in the UN Universal Declaration of Human Rights that declare the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. On March 31, 2010, the American College of Pediatricians distributed a letter to school officials citing various research studies that affirmed that even children with gender identity disorder —

The Chair: You have submitted a written brief and we will certainly have read it. You have run out of your time, but I will give you a few seconds to sum up.

Ms. Watts: This quotation from the American College of Physicians, which is very hopeful for children, is in our brief. We mention in our brief troubling effects of the bill, the rights of women and girls to a safe environment, taxpayers required to cover expensive surgery and hormonal interference, Canadian penitentiaries.

Transsexual and transgendered individuals already have the same rights as all other Canadians, but should not be given special rights. It is irresponsible to pass legislation with the expectation that the courts will determine its meaning. Persons with gender identity disorder should receive compassionate counselling rather than be encouraged in their dissatisfaction with the gender engrained in their DNA. REAL Women of Canada urgently requests that this bill not be passed into law.

The Chair: Now we will go to the Canadian Bar Association where we have two presenters, Rebecca J. Bromwich, Lawyer and Robert Peterson, Co-Chair, Sexual Orientation and Gender Identity Conference, Canadian Bar Association.

Rebecca J. Bromwich, Lawyer, Canadian Bar Association: The CBA, as you may know, is a national association representing approximately 37,000 jurists including lawyers, notaries, law teachers and students across Canada. Our primary objectives are to improve the law and the administration of justice and promote clarity and equality in the law. Appearing with me today, Robert Peterson, is Co-Chair, Sexual Orientation and Gender Identity Conference otherwise known as SOGIC, which provides a forum for the exchange of information, ideas and action on legal issues relating to sexual orientation and gender identity. The CBA believes there is a compelling need for express legal protection for transgendered Canadians in federal legislation. As the House of Commons has recognized, Bill C-279 will provide that protection.

I will turn things over to my colleague to speak to the substance of our views on this proposed legislation.

Robert Peterson, Co-Chair, Sexual Orientation and Gender Identity Conference, Canadian Bar Association: Thank you. Why does Bill C-279 matter to the CBA? It matters because the contents of the bill directly affect the lives of the friends, families, coworkers, neighbours and children of our 37,000 members on behalf of all Canadians.

With respect to our kids, bullying is a topic that we hear about quite a bit in the media. The National Transgender Discrimination Survey, conducted by the National Gay and Lesbian Task Force and the National Center for Transgender Equality in the United States, both reputable organizations, found that more than half of transgender and gender non-conforming people who were bullied, harassed or assaulted in school because of their gender identity have attempted suicide.

Why does the CBA support this bill on its merits? We hear about judge-made law in society and criticism laid against that. Bill C-279 directly addresses that issue. It represents the democratic will of the people on behalf of all Canadians. The fact that the House of Commons has passed this legislation says to the CBA that the majority of Canadians believe this bill ought to be adopted.

I would like to directly respond to criticism that ``gender identity,'' that terminology within the bill, is somehow vague. The term is used internationally pursuant to international law and by the Canadian Psychological Association. The CBA, having rigorously evaluated this bill, believes that there is no doubt that this term is clear for the courts and for tribunals. In fact, it has been adopted in legislation in the Northwest Territories, Ontario, Manitoba and Nova Scotia. It also has been used internationally in different countries.

More important, it provides much better clarity than the current state of the law, which is uncertain. Discrimination against transgender people must currently fit within discrimination on the basis of sex and discrimination on the basis of disability. Gender identity is not synonymous with sex and disability. Judges have been forced to acknowledge the hardship that transgender people face in order to build a framework for their protection. Bill C-279 directly addresses that issue.

I should note that Bill C-279 does not contain the term ``gender expression,'' although the CBA advocated for the inclusion of ``gender expression'' as it has become the standard used in much legislation. We are content that the bill in its current form with ``gender expression'' removed is a good step forward, and we wholeheartedly advocate it in its current form.

Finally, this is an opportunity for Parliament to make a very clear statement about the invisibility of transgender people. Having gender identity contained explicitly within this legislation allows for better access to justice; people can look at the legislation and understand clearly that these protections exist.

Subject to any questions, those are my submissions. Thank you.

The Chair: Thank you very much, Ms. Bromwich and Mr. Peterson.

Senator Ataullahjan: You have stated that this bill does not add new rights but expresses explicit legal protection for transgender Canadians. What would this bill do that is not already covered by existing legislation, and how would it provide additional clarity in legal matters?

Ms. Bromwich: The committee has our written submission. What has been indicated in that submission is that, as was indicated by the Canadian Civil Liberties Association as well, human rights legislation performs an important educative function, and the fact that we are having some aspects of this discussion makes clear that it is not clear in the mind of every Canadian that transgender people are protected under human rights legislation. It adds visibility and clarity in terms of people being unambiguous that transgender people are protected under human rights legislation and under the Criminal Code.

Our colleagues from REAL Women have indicated that there are some human rights decisions where judges have read in transgender to existing legislation. Most people do not for fun read human rights decisions. Perhaps more should, it might be a good idea, but in any event for teenagers growing up in our schools who are subject to bullying on the basis of things like their general appearance and clothing, into which I feel transgender would fit, it is beneficial to them to be made visible, to have this expressed in the legislation.

The Chair: Ms. Mendelsohn, do you want to add anything to what was said by the Canadian Bar Association?

Ms. Mendelsohn Aviv: First, it sends a clear message to the victims. It also sends a clear message to potential perpetrators. When the legislation says in no uncertain terms that discrimination on the basis of gender identity is prohibited, then those who might have otherwise discriminated know in no uncertain terms that Canadian law does not stand for that and likewise the Criminal Code. That is a further addition on the point of clarity.

Further to the points that have already been made, but just to elaborate, when a person is forced to argue that they are being discriminated against on the basis of a disability because they are transgendered, this is for many people offensive and is certainly a distortion of reality that comes from the invisibility.

Senator Munson: Anyone can respond to some of these points made by REAL Women of Canada.

You talked about credible studies about the harmful effects to transgender people. I would like to know what those credible studies are. I would like to know who are the transgendered who oppose this bill. You mentioned something about gender-confused children and some sort of treatment. I do not quite understand that. How will the rights of women and girls be affected? What are you worried about basically? What is the problem?

Ms. Watts: We have explained it in our brief. In terms of harm to transgender individuals, the Swedish study is clear. There is a link in our brief directly to the website that gives all the details of the extensive Swedish study, which covered the entire population of Sweden. They followed up for 30 years the transgendered individuals after their surgery; they were post-operative transgendered, and the health effects were negative in terms of morbidity. I think I read it out in terms of suicide, suicide attempt, psychiatric difficulties and cardiac difficulties.

In response to your question of opposing the bill, I think you just have to go on Xtra.ca, the gay website, and the comments are very clear that there is a tremendous debate with very hostile — I would hate to read it before the committee — disagreement as to who is labelled what under the GLBTQA, all the different letters. There is a transgender organization opposed to Bill C-279. You just go to the Xtra site. It is a Canadian gay website. One of the articles is: ``Federal trans bill passes second reading in the Senate.'' There is another one: ``Trans activist against Bill C- 279 creates website,'' on December 10. It would be December 10 for Xtra.ca. You would see the tremendous argumentation over the offences that some people take, being labelled, fighting over what transgender means, what transsexual means. Everyone has their favourite label, and others do not want to be labelled at all.

In relation to gender-confused children, I mentioned the Yogyakarta Principles. They definitely indicate, as did the situation in California, that they are opposed to any type of professional counselling for children who think they are of the opposite gender. If a parent has a child who is a boy and thinks they are a girl or they want to be a girl, and they feel that perhaps the child would be able to accept his physical nature with counselling, the Yogyakarta Principles would want to prevent that from happening.

When the person who believes they are the opposite gender receives surgery or hormonal treatment, their DNA does not change. The basic direction of the physical entity still remains male or female. The Karolinska Institutet found in 2011 in an MRI study that the brain of the male transgendered to female is not feminized but remains male, and they noticed one area that may be different, and it involves the networks in processing body perception, so that would be an area of further research. A parent who is concerned about their child and would want them to accept the fact that they are a boy or a girl, with the Yogyakarta Principles being so vague and overwhelming, some legislators somewhere as in California could, based on these principles, pass a law that the parents would not be allowed to get help for their child.

Senator Munson: You talked about special rights. I do not quite follow that. What is special about this? Why can people not be who they want to be? A human right is a human right is a human right. No matter who we are in this country, no matter what we look like, who we are, this is not about special rights. I do not see it as being about special rights. I look at it as equal rights in 2013.

Ms. Watts: I could not agree with you more. We are very much in favour of rights for all Canadians.

The Canadian Human Rights Act representatives said there were 19 cases dealing with transgender where they were being protected via the human rights commissions. The examples we give are the B.J.'s Lounge in Victoria where a man who identifies as a female without hormonal or surgical alterations entered a women's washroom in a night club, disturbed the female patrons and was ordered to leave the women's washroom. The patrons were upset about this. The owners of the establishment were taken to the human rights commission, and I believe they had to give $2,000 to the person who was ejected from the washroom.

Another case is the Vancouver Rape Relief Society. That is all in our brief in greater detail, where a male transgender to female wanted to counsel female rape victims. Both cases were heard before the human rights commission, but in this particular one, initially, the decision was to favour the transgender person. However, when it went to a higher court it was decided that the female victims of rape had a right to be counselled by people who were always female and not people who had once been male.

These cases are coming before tribunals and the courts. They are being determined as fairly as the members of the tribunals and courts can determine them. This is where we say they are already covered by our extensively compassionate laws toward all Canadians wanting to feel safe as Canadians in our country.

The Chair: Ms. Watts, I would like to ask a supplementary question on this, if I may, Senator Munson.

You stated that there were some trans groups that were opposing this bill and they set up a website. I have looked at that website. They are not so much opposing this bill, but, to put it more clearly in their words, they said that they were upset because gender expression is not included. That is why they are opposing this bill. Am I right on that?

Ms. Watts: Yes, but they make very strong statements. It is not just the fact of opposing the bill. They are opposed to the fact that Egale Canada represents trans people. They claim that Egale Canada only represents GLB, and there is a great conflict between the gay, lesbian, bisexual and transgender. They strongly oppose people whom they feel hostile to representing them before the committee.

Senator Andreychuk: I have a question for Ms. Bromwich and perhaps Mr. Peterson.

As I understand it, the Human Rights Act is the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they wish to have and have their needs accommodated, consistent with their duties and obligations as members of society without being hindered in or prevented from doing so by discriminatory practices.

We had the Human Rights Commission here, and they seemed not to go to the listing here. They do take into account the evolving nature of human rights and have taken the individual and looked at the discriminatory practice as a better way of enforcing the act.

First, is that your understanding of the operation of that section?

Second, in the Criminal Code, it seems to me you have to prove a group discrimination or hatred. The difficulty is that once we start enumerating, anyone under the Canadian Human Rights Act who has been subject to discriminatory practices has to identify the practice, so the onus is on the person if he or she is not in the listed group. Is that correct?

It is the same thing in the Criminal Code. If you are not part of the groups listed and there is hate speech or whatever, you have to prove the group and add it to the list.

I want to know whether I am correct because I am a bit out of date in monitoring all the cases.

We went down the road of enumeration, so it is justifiable to keep adding to that long list of enumeration as and when we find either the hatred or the discriminatory practices.

Am I making myself clear?

Ms. Bromwich: It was correctly identified that there are some human rights law cases where gender identity is read in as an analogous ground under human rights legislation, so the notion on a grounds-based approach that over time, as circumstances arise, there will be grounds that are analogous to those originally contemplated.

This legislation would make it explicit it that gender identity has emerged as one of those grounds analogous to the original list. There is a history of new grounds being added over time, for example, pregnancy discrimination and sexual orientation. There are a number of things that were not initially in there that have been added, so this would be in the pattern and tradition that human rights law has changed over time.

I do not know if that address what you were saying.

Senator Andreychuk: It does partially, and I will get your good advice further.

You say that with respect to discriminatory practices or the discriminations in the Criminal Code in the hate section, you have to be analogous to the original ones.

Would it not have been better to go the other way, namely, to concentrate on the discriminatory practice which leads to the inequality or hate, rather than having enumeration and now having to prove you are analogous to the group already enumerated?

Ms. Bromwich: That is a very interesting question. Should we have grounds in human rights law? Certainly, there is a lot of academic discourse on that subject.

The proposed legislation before us today does not offer that kind of broad brush change. The Canadian Bar Association would address that type of change when and if it were proposed. It is a very exciting suggestion that we could rethink human rights legislation. That is not the question we are here to answer today, but it is an interesting one.

The Chair: Ms. Mendelsohn Aviv, would you like to add something?

Ms. Mendelsohn Aviv: There was one question that I think Senator Andreychuk was asking that perhaps I might be able to answer if I understood it correctly: Does a person have to prove every time that gender identity is included, or because it is not on the original list, do they have to prove it every time? My understanding of the law is that once it has been read in, that is established law, and they would not necessarily have to read it in every time if it had been established by a higher court or by a tribunal.

Senator Munson: To the CBA, last week we heard some alarming statistics that the median income for trans Ontarians is $15,000 a year, despite reasonably high levels of education; 74 per cent of trans Canadian youth have been verbally assaulted because of their gender identity and expression; 34 per cent have been physically assaulted for their gender identity and expression; 43 per cent of trans people have at some point attempted suicide.

While this bill can play a role in fighting stigma, what other proactive steps can we take to create a level playing field for trans Canadians?

Mr. Peterson: That is a good question that goes back to our original submission. As I explained, based on the rigorous process that any kind of policy advocacy goes through at the CBA, we look at what will be the best law in place that we can advocate. Having gone through that process, we felt that gender expression was an important inclusion in this legislation. That is something we would continue to work for from a legal perspective on an ongoing basis.

I think your question goes to perhaps what more society can do. It may be beyond the purview of what I can speak to today on behalf of the CBA, but we do know that as we educate and use the law as a public education tool, having explicit recognition of transgender rights not only addresses the stigma that you talk about, but it also makes the issue facing transgender people visible. At this point, if a young person were to pick up the Canadian Human Rights Act and look at it, they would not know that lawyers and tribunals have to look at this legislation and concoct protection for them based on, in this case, sex and disability. That is not an easy route for anyone to get to. That is the work of lawyers, really.

As part of the Canadian Bar Association's concern about improvement of the law, not only substantive improvement, we are concerned about making access to justice easier, and that would be part of that.

Senator Munson: This bill has been referred to by some as the bathroom bill. I am trying to get around the fact that there are many Canadians who are scared, like REAL Women of Canada talks about, of what they perceive as putting women and children in a very vulnerable place.

In this debate, how do you allay those fears? How do you keep walking the walk and trying to convince those that this so-called bathroom bill by some is not what they are saying it is?

Mr. Peterson: An important first step is to take a step back and see that there is no credible evidence out there that having transgender rights afforded in jurisdictions such as Ontario, Northwest Territories, Manitoba, et cetera, has permitted those kinds of concerns to come to fruition.

The Canadian Bar Association is concerned with facts based on evidence. We are objective. That is the role we play. There is simply no credible evidence in that regard.

Ms. Bromwich: To follow up on that, this law would not affect the criminal prohibitions against voyeurism and sexual assault, any sort of criminal protections that would continue to protect people against the types of situations that are being referenced.

Ms. Watts: We have another example at the Evergreen State College in Washington State. School authorities and the police department were unable to prevent a man who identifies as a female but has male genitalia from lounging naked in the locker room where women and girls as young as six change for their swim classes. The biological male also has the right in Washington State, because of their laws, to use the women's washrooms, because according to the college, ``state law does not allow us to ignore gender identity disorder as one of the protected classes.''

This is the consequence of laws like Bill C-279. This is an actual case that is occurring in Washington State. The girls who want to use the pool can change; they have arranged a room aside from the regular locker room because the girls react negatively when they see what they perceive to be a naked man in the sauna, for example. That is a concrete case.

The Chair: Ms. Mendelsohn Aviv?

Ms. Mendelsohn Aviv: First, I would like to commend the senators. I think it is important to raise the issue because it has been a fear that has been raised, but I think the senators are to be commended for putting it properly in its place, particularly Senator Munson in the second round.

This is not really the focus of this bill. This bill is about equality for everyone. The washroom issue is a minor fear raised by some, and as was stated by the Canadian Bar Association members, there is no evidence to be concerned about it here in Canada.

That said, there have been and continue to be possibilities and options for reasonable accommodation. There are options for bona fide justifications — in those circumstances where it has been necessary. There was a huge controversy over the Vancouver Rape Relief Society case. Without taking a position on it at this time, the law is flexible enough to accommodate and to consider the different facets of a discussion like that about the needs of women and children in a locker room. It seems like even in the Washington State case, reasonable accommodation was found in a way that made the individual, this trans person, able to use a washroom that they felt comfortable and safe in, but also to make it safe and comfortable for women and girls.

I think we can put those fears comfortably to rest knowing that this bill is focused much more on what matters, and that is not special rights for some, but simply, as the senator stated, equal rights for everyone. That is the focus, and that is what the bill is about.

Senator Munson: Thank you for that. Where is Canada in the rest of the world when it comes to laws and/or bills dealing with transgender people? Are we leading the pack? Are we chasing? Where are we? Are there other countries that have set better examples?

Mr. Peterson: Yes, there are. I cut them out of my list today in the interests of brevity, but I believe you will be hearing in the second session from some witnesses that actually have those countries. Certainly there are countries that are further ahead.

Senator Ataullahjan: Thank you. My question is for REAL Women of Canada.

When reviewing this bill, Senator Nancy Ruth expressed her concern over women and girls not being protected under hate speech in the Criminal Code. She proposed under ``identifiable group'' that ``sex'' be added in addition to colour, race, religion, ethnic origin or sexual orientation. Although this is somewhat outside the scope of this bill and of what we are trying to examine, I am curious about your take on this. As an organization of women, would you support this amendment?

Ms. Watts: Yes. We have been wondering about that for a long time. As matter of fact, at one point we questioned the Status of Women as to why they did not insist that ``sex'' would be included in that provision. We would be in favour of Senator Nancy Ruth's perspective on this, and we have been concerned about that lack of protection for women for a long time.

Senator Hubley: My question is for Ms. Mendelsohn Aviv.

In your presentation, you gave us some statistics from Egale Canada that 74 per cent of trans youth report being verbally harassed as a result of their gender expression, and 37 per cent have experienced physical violence for the same reason.

Can you give me a picture of what the age group is for youth? In fact, when they bring forward a complaint of discrimination, who brings it forward? Do they bring it forward themselves, or are they represented in their presentation?

Ms. Mendelsohn Aviv: The study in the case that I was quoting from was a study commissioned by Catherine Taylor, the principal investigator, on behalf of Egale, but she is actually a professor at the University of Winnipeg. She did the study together with researchers at the University of Manitoba. The full name of the study may give you some indication, which is Every Class in Every School: The First National Climate Survey on Homophobia, Biphobia, and Transphobia in Canadian Schools. This study was focused on high-school-aged children and youth.

That was the first part of your question. Can you remind me what the second part was? Oh, about bringing forward complaints?

Senator Hubley: Yes.

Ms. Mendelsohn Aviv: To the best of my knowledge, this study was going after those youth and trying to elicit from them answers about their experiences. I do not know that any of these young people have come forward and filed any kind of discrimination action. In fact, our organization has also been working parallel to this with gay, lesbian and bisexual youth who are trying to start gay-straight alliances in their schools. Even there, where there is greater visibility and a slight forward movement, a slight historical movement in terms of protections for gay and lesbian youth, and there is a bit more awareness and acceptance, it is very unusual to find a young person who is willing to come forward and make a complaint against their school. When they do, they are quashed pretty hard.

We have been involved in a few cases, but I am not even at liberty to discuss the details of them because all the work we have done had to be behind the scenes because a young person in school is in a fairly closed environment where the grown-ups are in authority and have full control of the situation.

I am not familiar with a whole lot of complaints that are coming from young people in schools. Perhaps members of the Canadian Bar Association know of some.

The Chair: Do you know of any complaints?

Mr. Peterson: I am not aware of any.

Senator Cordy: I have some information. In the United States, 16 states and 143 cities or counties have brought in legislation similar to Bill C-279 to prohibit discrimination on the basis of gender identity. Also, 11 states and 17 other jurisdictions have brought in legislation prohibiting discrimination in public employment on the basis of gender identity. In none of these jurisdictions has there been an increase in unlawful or inappropriate activity after that legislation was passed.

Yet we hear often from people who are against the bill — and Senator Munson spoke about this earlier — that the perception seems almost to be that there is a lineup of transgender people waiting until the bill passes, and then suddenly they will be breaking the law. I think that is an unrealistic expectation.

Although I do not have any studies, would I not be correct that there are no more criminally minded people within the transgender community than there would be in any other community? Would that not be correct?

Mr. Peterson: That is my understanding. It is somewhat inconsistent, it would seem from our perspective, to argue that the bill will not change anything in the law and at the same time to raise the spectre of potential criminals waiting for the legislation to be adopted. It just does not bear logical scrutiny in any way.

Senator Hubley: Ms. Watts, do you have a comment?

Ms. Watts: We have another example of difficulties in Canadian penitentiaries. It will probably create problems, and there are problems already, if Bill C-279 goes through.

In Massachusetts, when a prisoner given a life sentence for the murder of his wife in 1990 was approved by the court to undergo sexual reassignment, the individual who was convicted now resides in an all-male prison and will face security risks as a target of sexual assault by other inmates.

Alternatively, if an inmate is transferred to an all-female prison, he or she will also be a target for assaults and harassment.

There is a case in Quebec where a family is concerned about their son who appears as a female and is incarcerated with men in the Rivière-des-Prairies jail. The mother calls her child's experience — the child is in his twenties — a living hell.

To say that nothing will change when you go through the process of bringing in this bill is very misleading. Even the fact of the transgender process is causing difficulties in penitentiaries for the transgendered.

The Chair: Ms. Mendelsohn Aviv?

Ms. Mendelsohn Aviv: Ms. Watts, I am not sure that I understood the connection between your answer and the question that was asked. This bill is not changing the legal reality. Gender identity is already being read in by the Canadian Human Rights Tribunal. It is being read in by the courts. It is being read in by numerous provincial human rights tribunals, and it exists in many provincial human rights laws.

When we talked about its not making a difference, it is not making a difference to the legal facts on the grounds. Gender identity is already a prohibited ground of discrimination, and it is already a protected ground.

There are issues in penitentiaries. A case actually came forward and was resolved, to some people's satisfaction perhaps more than others, in the courts. I cannot find it at the moment, but the Kavanagh case, I believe it was, exactly addressed certain issues related to transgendered persons who wished to be transferred into a penitentiary that was suitable to their gender, and it also dealt with sex reassignment surgery.

The statement made is simply that this bill is not changing any of that; it is not changing the legal status. All it is doing is explicitly recognizing people's equal rights. That is all that is changing.

Ms. Watts: Well, I was answering that from the perspective of our third point of harm to the transgendered, but our first point is that it is unnecessary because people who identify as transgendered are, like all Canadians, already protected by the Canadian Human Rights Act and the Criminal Code, as you just said.

The Chair: Senator Cordy, do you have a follow-up question?

Senator Cordy: No. That is fine.

The Chair: I want to thank the Canadian Bar Association, the Canadian Civil Liberties Association and REAL Women of Canada. All three groups often present to our committee. We always appreciate your presentations and thank you for them.

We will go on to our second panel. For those who have just started watching, we are studying Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), to have trans people included in the Canadian Human Rights Act. We will start with the Chairperson of the Canadian Human Rights Tribunal, Mr. Susheel Gupta.

Susheel Gupta, Acting Chairperson, Canadian Human Rights Tribunal: Good afternoon, and thank you all very much, honourable senators, for the invitation to appear before your committee today as you continue your examination of Bill C-279.

I would first like to briefly discuss the mandate of the Canadian Human Rights Tribunal, as it will inform the scope of my presentation. I will then provide the committee with some information regarding the extent to which the tribunal has dealt with issues of gender identity.

The Canadian Human Rights Tribunal is one of two administrative agencies created by the Canadian Human Rights Act, CHRA. The other agency, from which you heard last week, is the Canadian Human Rights Commission, and, while the commission's mandate is multi-faceted and includes a wide range of powers, duties and functions, the statute has only assigned one main function to the tribunal. That is the adjudication of complaints. In the context of the CHRA, this adjudication process is referred to as an inquiry.

How does that inquiry process work? Essentially, an individual who believes that discrimination has occurred within the meaning of the CHRA files a complaint with the commission. If the commission believes that an inquiry is warranted, it triggers the adjudicative process by making a request to the tribunal to inquire into the complaint. Generally speaking, the complainant must refer to one of the discriminatory practices identified in the statute. What does the CHRA consider a discriminatory practice? There are a number of acts and courses of conduct so designated, including denying access to services, facilities or accommodation; refusing to employ or to continue to employ an individual; establishing a policy or practice that deprives an individual or class of individuals of employment opportunities; and harassing and adversely differentiating, both in matters related to employment and in the provision of services, facilities or accommodation.

However, almost every discriminatory practice in the CHRA must be based on one of the 11 prohibited grounds of discrimination. As you are aware, Bill C-279 seeks to add an additional prohibited ground to this list, namely gender identity. While you have no doubt heard views from several witnesses about this amendment and will continue to hear from others, for reasons I will explain, it would be problematic for the tribunal to enter into the merits of this debate. Here is why: In carrying out its inquiry into a complaint, the tribunal has many of the powers of a court. It is empowered to find facts, to interpret and apply the law to the facts before it and to award appropriate remedies. Furthermore, the tribunal's hearings have much the same structure as a formal trial before the court. The parties before the tribunal lead evidence, call and cross examine witnesses and make submissions on how the law should be applied to the facts.

Because of these quasi-judicial characteristics, tribunal members, including myself, are required to have a high degree of independence from the executive branch of government, in particular from our portfolio department, the Department of Justice. Moreover, as a primarily adjudicative body with court-like powers and procedures, the members of our tribunal must respect stringent requirements of procedural fairness to ensure that we do not raise a reasonable apprehension of bias in any of our decision making. In this regard, tribunal members must adopt and retain a position of neutrality with respect to issues that can and will be debated in cases they might be called upon to decide. Otherwise, parties in current or future cases might form the impression that the tribunal is predisposed to a particular result. This principle of adjudicative open-mindedness is of notable relevance in regard to the question of gender identity and the Canadian Human Rights Act.

As I mentioned in my testimony before the House of Commons committee last November, the tribunal has thus far adjudicated only four cases dealing with gender identity. It did so by considering transgender issues within the current statutory framework of prohibited grounds of discrimination, in particular under the grounds of sex and disability. However, the tribunal has never had to decide a case where the parties put forward sharply opposed arguments on the question of whether or not gender identity is protected by the act. In the four cases I refer to, no party disputed that it was covered by this act.

That said, any discussion of the tribunal's experience must acknowledge the broader context, namely, the fact that the tribunal only adjudicates a very small subset of discrimination cases advanced under the Canadian Human Rights Act. The reasons for this are threefold: First, other federal agencies and boards have concurrent jurisdiction over CHRA matters. Second, of the CHRA complaints filed with the commission, not all are referred to the tribunal. Finally, the tribunal, through its mediation initiative, is able to facilitate settlements in a significant portion of its caseload. Consequently, no tribunal decision is rendered in those cases.

In closing, I would simply like to say that I hope this presentation has provided the committee with a helpful explanation of the tribunal's function and mandate as you continue your examination of Bill C-279. I am happy to take your questions when it is time.

The Chair: Thank you, Mr. Gupta. We will now go on to Nicole Nussbaum.

N. Nicole Nussbaum, President Elect, Canadian Professional Association for Transgender Health: Madam Chair and honourable senators, I thank the committee for the invitation to present today. I am a lawyer with extensive experience in trans legal issues and have spoken and conducted training on these issues several times in the past. I am here today in my capacity as the president elect of the Canadian Professional Association for Transgender Health. CPATH is an interdisciplinary, Canadian, professional organization devoted to the health of individuals who are transgendered or transsexual or whose gender expression does not conform to expectations for members of the sex assigned to them at birth. Among the professionals included in our association are family physicians, endocrinologists, pediatricians, surgeons, social workers, psychologists, psychiatrists, lawyers and others, as well as organizational members and agencies that provide front-line service to trans people across Canada. As an organization, we recognize the importance of the social determinants of health, including income and social status, social support networks, education and literacy, as well as employment.

This committee heard last week about the pervasive prejudice and discrimination experienced by trans communities. Enduring these acts of prejudice, discrimination and violence and living in anticipation of these acts occurring cause physical and emotional responses that accrue over time, eventually leading to compromised mental and physical health. Last month, after a 14-year revisions process, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, or DSM-5, replaced the previous diagnosis of ``gender identify disorder'' with ``gender dysphoria,'' which is broadly defined as discomfort or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth. The WPATH Standards of Care provide treatment guidelines to validate a client's core gender, to support their life in their core gender and to support undertaking whatever individualized medical treatments might be necessary to alleviate gender dysphoria.

In 2010, the Canadian Psychological Association affirmed that all adolescent and adult persons have the right to define their own gender identity, including the right to free expression of their self-defined gender identity. The Canadian Psychological Association opposes discrimination on the basis of self-identified gender identity, or the expression thereof, in exercising all basic human rights.

Bill C-279 appropriately identifies gender identity as a particular and specific basis of prohibited discrimination. It also provides a broad, but cogent, definition of gender identity.

This definition is consistent with how gender identity is universally recognized and how it is defined by the Canadian Psychiatric Association, the Canadian Psychological Association, the Canadian Medical Association and the American equivalents of each of these organizations. It is similarly recognized in the DSM and in the ICD, which is the World Health Organization's medical classification system. The term ``gender identity'' is utilized in the legislation of many other jurisdictions around the world.

With respect to the specific provisions of the bill, the need for explicit protections was formally recognized 13 years ago in the report of the Canadian Human Rights review panel, chaired by former Supreme Court of Canada Justice, Gérard Vincent La Forest. The report made it clear that to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issues to remain invisible.

Since that date, the bill has been introduced multiple times in the House of Commons and has passed twice. The Northwest Territories in 2002 and Ontario, Manitoba, and Nova Scotia have passed gender identity or expression amendments to their human rights legislation, each with the support of all parties. In Ontario, the bill was co- sponsored by Cheri DiNovo, NDP MPP; Yasir Naqvi. Liberal MPP; and Christine Elliott, Progressive Conservative MPP.

In recent years, jurisdictions around the globe, such as the U.K., Spain, Portugal, Argentina and New Zealand, have passed legislation to recognize the rights and identities of trans people and rescind previous requirements to obtain an accurate sex or gender designation on state-issued identification. Actions to address these protections are ongoing at breakneck speed. As an example, just weeks ago, Albania passed hate-crimes legislation that is inclusive of gender identity. The adoption of trans-inclusive measures has not been limited to government actors, and there has been a growing awareness of the need to protect the rights of trans people in the corporate and labour sectors. Clearly a tipping point has been reached and passage of these explicit protections in jurisdictions across the country is almost certainly inevitable.

As an organization, we know that we are often the first ones to make our clients aware of their human rights protections. This bill will also be of benefit to service providers and employers by making the protections visible on the face of the act. The Canadian Human Rights Commission will publish compliance guidelines that will allow employers and service providers to understand their obligations. When you boil it down, this bill is about improving the ability of trans communities to access and maintain employment, access services and emergency and permanent housing, and stem the violence so specifically and harshly directed toward us. I respectfully request and trust in your support of Bill C-279.

The Chair: We will hear from Ms. Sara Davis Buechner, Associate Professor of Music, University of British Columbia.

Sara Davis Buechner, Associate Professor of Music, University of British Columbia, as an individual: Thank you, chair and senators. I am honoured to speak with you today. I apologize for not attending in person, and I thank you for your time and kind consideration.

I am an American-born classical concert pianist. Since 2003, I have been a Professor of Music at the University of British Columbia in Vancouver. I regularly travel around North America and Asia performing concerts when I am not in Vancouver teaching a class of some 15 aspiring musicians of world-class caliber. After I graduated from the Juilliard School in 1984, I gave a successful concert debut in New York City. In 1986, I was the top American prize winner of the International Tchaikovsky Competition in Moscow. I received a kind letter from President Ronald Reagan congratulating me, and I later played for President and Ms. Clinton. I have also performed as a piano soloist with many of the world's leading orchestras, including Toronto and Vancouver. My personal story is what I will discuss with you today.

At the age of 37 after a lifetime of questioning, fear and searching for medical help for my distress, I was diagnosed with gender dysphoria; and I transitioned to my core gender, which is female. My pianistic skills did not change one bit, yet suddenly my concert schedule changed from 50 appearances a year to 2 or 3; and the Conservatory in New York City where I was a popular teacher decided that my skills were no longer needed. With very limited means of supporting myself, I took a job teaching piano to small children at an upstate New York State music school for about $600 a month. I considered myself lucky because many of the trans people I met at that time in my life were completely unemployed; and some of them became homeless.

During my years of gender transition, my outward appearance changed, of course, and I learned to endure frequent verbal and occasional physical harassment as part of the price of pursuing that integrity, even in a city as large and cosmopolitan as New York. I was the victim of an attempted date rape at the hands of a man who assumed that since I was a transgendered person, I must be a sex worker. I did not bother to report that to the police since I had heard many stories of police harassment of trans folks as well. I assumed they would think that I deserved what I got. When I applied for a name change at the Manhattan County Court, I was pointed at, laughed at and denied the legal right to change my name, which I later pursued in a different county.

Ten years ago, having exhausted all of my personal savings, I considered myself deeply fortunate to land a position with the piano department of UBC in Vancouver. Of the many job interviews I had at the time, it was the only one where I was not asked directly about my gender change, marital status or personal morality. Of course, such questions are illegal, and employers are not supposed to ask them. However, I was in no position to confront these people about this treatment.

I have lived in Vancouver for 10 years with my Japanese spouse Kayoko, whom I could not marry legally in the United States. We are reminded of our second-tier status there every time we travel across the border because American border agents always make us stand in separate lines and tell us that we are not married.

I can let other more statistically informed witnesses here speak to the numbers of trans folks who experience harassment, discrimination, violence or death, either by murder or by their own hand. On YouTube, you can view a few stomach-turning videos of transgender folks being beaten within an inch of their lives in public bathrooms by bigots who do not like the way they look and decide that it is okay to administer moral justice on their own.

I know that Canadians desire a better level of justice than that for everybody. Bill C-279 assures protection for people like me with gender identity needs, people who are beginning transition, people in the middle of transition, and people like me who have transitioned and simply wish to live their lives without fear or harm for being who they are.

Our needs are not willful; they are not of passing choice; and they are not things that we can simply ignore. For transgendered folks, identity issues are matters of life and death and of living openly, honestly and freely without fear of prejudice, malice, or worse, violence. We do not ask for or deserve extra rights. We need the same rights as our Canadian brothers and sisters of all races, creeds, denominations and identity. I speak to all of this from the personal experience of having lived and transitioned in a country where those rights are not protected, where I was denied housing without explanation, fired from a job with no possibility of compensation, called names on the street, was fearful to ride buses and subways and did not enjoy equal rights or legal recourse.

On this day, however, I am happy and confident that my fellowCanadians will see the importance and necessity of passing Bill C-279 to help all of us to live in safety, equality and happiness. I thank you all so much for your time.

The Chair: I thank you for taking the time to speak to us. Certainly, you have brought the reality of the issue to the committee; and I thank you for sharing your story with us.

Mr. Gupta, we have had many communications from Canadians. One thing that has been raised is the issue of sports associations adopting the new realities. How does this amendment fit into the framework? How will sports associations and teams adapt to deal with the reality of the transgender community and impact of the bill? This is a question that many people have asked me in the correspondence, so am asking you.

Mr. Gupta: I am not sure if sports associations would fall under the Human Rights Act because I am not sure if they are federally regulated. The Canadian Human Rights Act gives us jurisdiction at the tribunal to deal with federal employers and federally regulated industries, such as aviation, telecommunications and banks.

The Chair: I will cut you off there, only because we have such a limited time.

Senator Ataullahjan: My question is to you, Mr. Gupta. You have not heard a large number of cases with regards to gender identity. If this act were to pass and gender identity were to be added to the prohibited grounds of discrimination designated by Canadian Human Rights Act, do you believe you would be hearing more cases? Do you believe there would be more people coming out of the woodwork?

Mr. Gupta: We do not keep statistics on our cases, because we are a tribunal or a court. All I can really say is that, as Parliament has assigned that sole role of adjudication to the tribunal, we have had four cases where it was clear that these issues were found to be covered under the act. I cannot speculate whether there will be an increase, to be candid.

Ms. Nussbaum: From my perspective, there may be a bump in the cases brought to the tribunal. However, having explicit protections right on the face of the act will make it clear that the common issues of discrimination and employment, discrimination and access to services and these sorts of things are settled and done; it will reduce the need for litigation.

As human rights acceptance in society progresses, the cases brought forward come at the perimeters of what the ground covers. There may be continued litigation at the perimeters of not just this ground but all other grounds as they bump up against other interests and other rights.

Recently, the Ontario Human Rights Commission brought out a policy on competing rights, so I think the court cases will focus on those cases at the perimeters. The protections for people dealing with basic employment situations and basic access to services will be either dealt with through policy or settled much earlier.

Senator Ataullahjan: Has the United Nations accepted gender identity as a legitimate human right?

Ms. Nussbaum: My expertise is in the law of Ontario.

Mr. Gupta: My expertise is really pursuant to the act.

Senator Andreychuk: Thank you. Mr. Gupta, I want a clarification. You said — and rightly so — that it is a parliamentary decision or a political decision as to the addition of added groups or entities for the commission.

You indicated that within your mandate you can interpret the discriminations and that you have dealt with cases of gender identity in the past; is that correct?

Mr. Gupta: That is correct. There have been four cases where transgender or transsexual issues have been brought to the commission, and then those complaints referred to the tribunal for inquiry or a trial, let us call it. The last case was in 2009. For all four cases, it was found under the grounds of either disability or sex that gender identity was covered in all four of those cases.

I will add one qualification: There may have been additional cases that made their way to the tribunal, but we do offer mediation processes as part of tribunal's mandate. Therefore there may have been cases resolved by mediation and bringing the parties together. There are certainly four decisions under the act that are published — two are upheld by the Federal Court — that have dealt with these issues.

Senator Andreychuk: I have a supplementary question, then. People come to you, alleging the discrimination, basically; it is a fact situation and then you sort it out. Is that what happens?

Mr. Gupta: They would bring it to the commission, which investigates. You would have heard from Mr. Langtry, Acting Commissioner at the Human Rights Commission. If they are unable to resolve it or if they believe there is more merit, they will refer it to us for inquiry, which is like a trial. That means both parties would present evidence, call witnesses and we will have to judge and rule upon that.

Senator Cordy: Ms. Davis Buechner, your story was riveting. I found it amazing to listen to your story and to see how someone's life can change, not because of anything you have done but by how people suddenly look at you. To hear that story was compelling. I hope you are writing a book about that; or have you already done so?

Ms. Davis Buechner: What was a little unique in my own situation of gender transition was the fact that I was a public entertainer or public figure; I did not have the option of disappearing or starting some kind of new life. I think many trans folk, when they experience the kind of harassment or discrimination I faced, simply pack their bags and move to some other place and start a new life. I did not desire to do that, and of course I do not think anybody should ever have to do something like that. In the end, curiously enough, I did pack the bags and come to a nicer place. That is a happy ending.

Senator Cordy: Thank you; we are glad you did.

Ms. Nussbaum, I thought it was interesting when you talked about looking at the social determinants of health, because you cannot just isolate parts of people's health; you have to look at all the things that come together to give people good physical and mental health. I thought that was very good. Do you think that if this bill passes it will help people, particularly in terms of creating stronger mental health for those facing discrimination from the broader communities?

Ms. Nussbaum: It might to the extent that trans people and gender non-conforming people see themselves reflected in the act and sense the acceptance of Parliament and of the Canadian citizenry, and that sense of welcome enhances mental health.

Also, there is a concept of minority stress, and that is that people from minority communities face specific experiences of violence, harassment or discrimination in their everyday lives and that these experiences take a mounting toll on functioning and physical and mental health. That is true across minority communities. However, the particular discrimination or harassment is particular to each individual community.

To the extent that this bill, when it becomes part of the act, reduces trans people's experiences of discrimination, harassment and violence, it will certainly have an impact on the mental health of trans Canadians.

Senator Munson: That was probably my question. We are going through the issue of Bill C-279, and I do not know who will answer this question, though it is more of a statement on bullying and suicide. We have read so many articles of teachers to students who have committed suicide. How do we reach out to those? We heard something to the effect of access to services, but what does that mean to a young man or woman at 15 or 14 who may be watching this hearing? They see all of this talk about how you can take this to a tribunal, but inside they are hurting and they still do not know whom to talk to; they cannot even talk to their mother or father.

What else do we need to do? From my perspective, a bill like this is just a start.

Ms. Nussbaum: I would agree that it is just start, but it is a significant start. I spoke recently at a meeting of the parents of trans youth. A lot of the concerns parents have for trans or LGBT youth is that they will experience hardship, violence and discrimination in their lives. Parents hinge their acceptance on whether or not they will be supporting something that they think will be difficult for their child.

Passing a bill like this is an assurance to those parents — and to the youth struggling to get through — trying to accept and support their children appropriately. This is certainly helpful to enable those parents to provide support and see that their children will be accepted. It is the same for families and communities as well.

The Chair: Ms. Davis Buechner, do you to have anything to add?

Ms. Davis Buechner: The openness and the free knowledge that being a trans person is not something to be ashamed of is terribly important. This is not a message I had as a young person and it took me decades to find out the information I needed. In many significant and wonderful ways, I think society is changing a great deal. I have had trans students at the University of British Columbia who transitioned in their mid to late teens at this point, which was unheard of when I was a child.

I think the knowledge is disseminating out there. The Internet is an incredible resource that did not exist when I was younger. Ultimately, just as the passage of marriage laws in this country certified a lot of acceptance for gay and lesbian folks, I think knowing that you are safe to do this because you have to do it is terribly important. As Ms. Nussbaum said, yes, it is a first step, but it may be the most important first step of all, I would say.

Senator Hubley: Thank you very much. Along that line, what avenues for education are open to you? Have you had an opportunity to look at the educational system we have in place now? Where should information be introduced and when, and does it or does it not exist today? I am also thinking of remote communities that may not have an organization they can go to for that kind of support. How broad is your Canadian Professional Association for Transgender Health? I am not sure who would like to take that. Education would be my main focus on that question.

Ms. Nussbaum: Are you talking about education in schools?

Senator Hubley: Yes.

Ms. Nussbaum: In London, Ontario and Toronto, the Toronto District School Board and the Thames Valley District School Board have introduced gender identity inclusive protections for their students. Having policies like that in place can only assist trans youth and educate all youth about diversity when it comes down to it.

I think passing a bill like this will encourage. There is a tipping point. When this bill passes, it is likely that the other provinces and territories will pass similar legislation. Those protections will trickle down to all of the different systems, and there will be education structurally through that.

The Chair: Ms. Davis Buechner, would you like to add anything to that?

Ms. Davis Buechner: I think the educational aspect of that is most important. In terms of schools, teachers should be very aware of harassment and bullying situations that can happen for many reasons, certainly not just gender identity, of course. This is something I am sure Ms. Nussbaum, myself and any trans person has experienced in their childhood. We are dependent on teachers to have an open eye and be sensitive to these things, and they must be aware of diversity issues.

In terms of trans folks, we need to have educational services available at various clinics and other health providers. For example, here in Vancouver there is a clinic I go to that is well-known as a transgender health facility. I am very grateful for that. I think such things barely exist in the United States at this point.

These things are all good outlets for education. Who can answer such a question easily? It is a huge issue, of course. However, by passing this bill you are bringing that awareness of the issue to a lot of people and their antennas go up so they say, ``That is interesting,'' as opposed to ``That is strange. I do not want to hear that; go away.''

Senator White: Thank you very much. I apologize for being late. I was tied up with Senator Mitchell on another committee.

I appreciate the dialogue around education. Gender identity should be part of our main education system. I think that would be helpful for everyone.

If I may — probably for Senator Mitchell, because I know that he is involved in this — this is about recognition for Canadians, and acknowledgment and clarification at this point more than anything else.

As a police chief previously in Durham and here in Ottawa, there are a number of cases I was involved in that concerned trans issues. I think if we get our head around the fact that this is about clarification, acknowledgment first and foremost, is that the way you see it as well, senator?

Hon. Grant Mitchell, sponsor of the bill in the Senate: I would, and I agree —

Senator White: You have not presented? I apologize. No leeway.

Senator Mitchell: That is okay.

Senator White: I will ask that question when it is relevant.

The Chair: Steering has decided that we will hear from Senator Mitchell for 10 minutes and then we will take a break and go clause by clause.

Senator Andreychuk: Will you excuse the other witnesses?

The Chair: They can stay.

Senator Mitchell?

Senator Mitchell: Thank you very much. Having heard the positive implications of that question I am almost afraid to say anything because I think we are on the right track here. I will be careful.

I want to begin by thanking the committee for the diligent, balanced, careful work it has done on this bill. I want to congratulate the chair and the steering committee for their work in reviewing the very balanced group of witnesses. I think this is an example of exactly how the Senate can work so well on very important and sometimes difficult issues.

I would also like to recognize Randall Garrison, the NDP member of Parliament who moved and presented this bill. I do not know if he is in the room, but he has done great work in ushering it through the other house. In that house, it is worth noting that it was an all-party effort. The opposition parties all voted for this bill, and in addition to that, 18 Conservative members, four of whom were cabinet ministers, voted for this bill. Again, it is recognition of how this parliamentary process can rise above partisan lines in making difficult and important decisions.

I would also like to thank members of the trans community for their tremendous work and courage over many years in confronting the issues that in turn confront them every day. It is very difficult. I would particularly like to thank many of the members of that community and members of the Canadian Bar Association, Nicole Nussbaum —and her partner — who was instrumental in giving me advice and truly helping me understand with intensity how significant and important this bill is and that what it embodies is important to many people's lives, people in the trans community and their family, friends, their colleagues — and each of us falls into those categories whether we know it or not, so all of that.

I was struck, when asked to work on this bill and to be the Liberal sponsor of it in the Senate, just how important it is, the ``why'' of it. You have heard great, powerful testimony on the level of discrimination that transgender people, who are affected by this bill, feel every day of their lives. What I grew to understand by speaking with people in this community was just how intense it is, and how alienating and how frightening it can be in their lives. You have heard statistics; you have seen today and in the other meetings people who in fact are members of this community, way past statistics, and the power of their presentations.

I am struck by the statistics on economic, housing and health discrimination, and on the bullying, harassment and intense violence that people can experience because of their gender identity. That is the real moving force behind this bill, that we can actually help people in a significant way — people who are friends, family and colleagues, and people we do not know; but it is quintessentially Canadian that we feel about our community in many different ways and on many different levels.

I would like to note briefly the arguments that have been levelled against this to say that these arguments I know are well considered. They come from a place of concern, but I think each of these arguments have been met in debate and in testimony. Certainly, there is the case of definition. The case is made that the definition in this bill is quite subjective and deeply personal. By definition, it has to be. That definition, in fact, has to be. There are other elements that are protected under the human rights legislation that are equally deeply personal; certainly, religion is a deeply personal, deeply held view.

What is very significant about this type of case and many cases in the legal processes is that the courts deal all the time with things that are deeply personal and subjective. In fact, state of mind is at the root of criminal law. I am not a lawyer, but we know that the courts always have to define whether it was an accident or intentional. That is very critical.

With respect to definitions, in fact, this definition of process has been debated hotly on the other side. Amendments were made so that there would be more support on all sides of the house. I think the definition, therefore, has been worked through, and in fact in some senses it provides greater specificity because right now it is being done under other pieces of legislation in other acts elsewhere in the country; it is being cobbled together. This will actually specify it and firm it up even more.

There is also the question, which is very derogatory, of the bathroom issue. Clearly, the evidence is that wherever gender identity has been protected in legislation, and there are certainly cases in the United States and elsewhere in Canada, there are zero cases where anything untoward has ever arisen out of this or anyone has exploited this kind of defence in the courts.

The courts are absolutely geared and experienced in determining what is and is not appropriate behaviour. The bottom line is that if we were not to pass this bill for fear that it might be exploited by someone who was behaving inappropriately sometime in the future, even though there is no evidence that that has happened before, we are holding a whole community hostage because of what someone else might do that is wrong. We simply do not do that in our legal system or in our society. We rise above that all the time. There is no downside to this; there is only upside, protecting people who require protection whose lives are vastly seriously diminished, whose physical and psychological well-being is attacked, often brutally, in ways we can hardly imagine. We can help these people.

I would like to emphasize the idea that was mentioned and implicit in Senator White's question: A large part of this is defining, validating and recognizing for people who are transgender that in fact they are recognized and their plight is understood, and the potential they have in our society is understood and will be supported.

It also educates Canadians and society. Some of the discrimination is ignorance and just not understanding. This elevates it to a level of recognition. It is a powerful statement to put it in the Canadian Human Rights Act and to defend it even further in the Criminal Code. I want to emphasize that; I want to emphasize win-win.

As a senator, perhaps I could point out that the Senate was designed with a number of things in mind, but two things in particular: to protect regional rights and to protect minority rights. If ever there was a case of minority rights needing protection, this is one of them. Clearly, they are a minority, but in a strict numbers sense and in a sense of discrimination and how they are treated, they are absolutely treated as a minority. It is incumbent upon the Senate — we are here for that reason, among others, but for that very important reason — to protect minority rights.

I will close by saying that Canadians have a way of doing the right thing. We seem to get there. Often it takes us a long time to make the right decision about certain rights issues, but we will do this. This kind of protection will be accomplished by Canadians at some point. I am simply saying, why do we not just fast-forward it, do it now, push it through to third reading and get a vote? Perhaps the committee members, and I know many of you will, will support the efforts to convince more members in the Senate on third reading to pass this and leave in June having accomplished something truly important, truly great, to make a difference in Canadians' lives.

The Chair: As the sponsor of this bill, I want to thank you for your presentation.

I want to thank Mr. Gupta. It was very difficult for him to be here, yet he made a special effort to be here today. I appreciate that, Mr. Gupta.

Ms. Nussbaum, we appreciate your presentation. Ms. Davis Buechner, you ended our last panel with your presentation. We will all be thinking about what you said.

I want to thank you once again.

May I have a motion to begin clause-by-clause consideration of this bill?

Senator Cordy: I so move.

The Chair: Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity)?

Hon. Senators: Agreed.

The Chair: Shall the title be postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 1 carry?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 2 carry?

Some Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 3 carry?

Senator Ngo: On division.

The Chair: Senator, perhaps I went too fast. Did you want clause 1 to be on division as well?

Clause 2, on division.

Clause 3?

Hon. Senators: Agreed.

The Chair: Agreed.

Clause 4?

Hon. Senators: Agreed.

The Chair: Agreed.

Clause 5?

Hon. Senators: Agreed.

The Chair: Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill carry?

Hon. Senators: Agreed.

Senator Ngo: On division.

The Chair: On division.

Will there be any observations?

Senator Andreychuk: No.

The Chair: Shall I report the bill to the Senate?

Hon. Senators: Agreed.

The Chair: Thank you very much, senators. Thank you for all your work and your cooperation.

(The committee adjourned.)