Proceedings of the Standing Senate Committee on
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.
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.
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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
Senator Andreychuk: Will you excuse the other witnesses?
The Chair: They can stay.
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
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'
The Chair: As the sponsor of this bill, I want to thank you for
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.
Hon. Senators: Agreed.
The Chair: Agreed.
Hon. Senators: Agreed.
The Chair: Agreed.
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.