Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 28 - Evidence - May 11, 2017
OTTAWA, Thursday, May 11, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, met this day at 10:30 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome, colleagues, invited guests and members of the public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today, we continue our consideration of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code. With us today for the first hour are, from the Sherbourne Health Centre, Devon MacFarlane, Director, Rainbow Health Ontario; and from Marni Panas Consulting, Marni Panas, Diversity and Inclusion Consultant and Community Leader. Thank you both for being here today.
Ms. Panas, we will begin with you with an opening statement, and just to remind both of you, please limit yourselves to five minutes.
Marni Panas, Diversity and Inclusion Consultant and Community Leader, Marni Panas Consulting: My name is Marni. I co-lead the diversity inclusion work at one of Canada's largest employers. I am a woman; I am a daddy; I am transgender. I was assigned male at birth, but I have always been a woman.
Gender identity is our internal sense of gender. I can't look at any of you and know your gender identity.
The Chair: Could you slow down just a bit, please, for translation purposes?
Ms. Panas: Our gender expression is how we choose to show the world our gender. Even then, we can't make assumptions. I only began expressing my true gender after I transitioned at the age of forty-two.
"Gender expression'' and "gender identity'' are completely different terms and subject to different forms of discrimination. Both terms must be reflected as protected grounds in Canada's Human Rights Act.
Most provinces and territories now include protections for gender minority people. This proves that no argument against Bill C-16 is legitimate. The people of these provinces have retained all of their rights, all while affording the same protections and opportunities to the transgender, two-spirit and gender-diverse population. It would be very perplexing and disconcerting not to provide similar protections in the Canadian Human Rights Act. Without inclusion, it leaves a patchwork of protections. This means a customer in a bank in Alberta is protected from discrimination but the clerk who is serving them is not.
There are still transgender Canadians who we essentially force to be sterilized through medical intervention just to get correct ID in order to have access to the same rights and privileges that other Canadians have.
Transgender people continue to face extreme violence, both domestically and globally. Crimes against us tend to be more violent and horrific than crimes against any other people. In the United States, transgender women have a 1-in-12 chance of being murdered in many states, and this was before the current administration removed any national protections for trans Americans. It is estimated that the majority of hate crimes committed are against transgender people, but we have no way to report, track or prosecute these kinds of hate-motivated crimes in Canada.
Those who oppose this bill often make the argument that protecting transgender people somehow puts women and children at risk. It's ridiculous to think that someone who would assault another person is just waiting for you to change words in legislation or the sign on a bathroom door to carry out their violence.
If your argument truly is about protecting people, then pass Bill C-16 as is, because I can assure you the person most likely to be assaulted, raped or murdered in a public space is me, a transgender woman. Transgender people are more at risk from society than society will ever be from us.
Further, framing amendments to the Criminal Code of Canada as a free speech issue is a straw man argument used to instill fear where there is nothing to fear. This amendment will protect one of our most marginalized groups of people. It does not take away your right to say what you wish any more than protections added for race, religion, sexual orientation and disability have. Purposely using incorrect pronouns does not make you a criminal; it only makes you disrespectful, but assaulting us, killing us or inciting others to do the same simply because of who we are, and that we do not fit how some in society define gender, is a different matter. Do not let those who oppose this bill on fabricated grounds and hypotheticals cause you to leave a section of your population vulnerable to the very real risks that we face every single day.
The Chair: Just a little slower, please.
Ms. Panas: We won't see a drop in suicide rates, discrimination and violence against gender-minority people the day after the legislation is passed, but this is a crucial and necessary step to start normalizing the conversation around transgender people, to recognize that we do exist and that we are humans too and that we want, need and deserve the same things as you; that we are not a threat to society but have many amazing and beautiful gifts to offer our community; that we are worthy of being respected, protected and loved as a Canadian and a human being who, like you, wishes for nothing more than to provide for my family, obtain an education, do meaningful work and contribute to my community; as a member of a small but vulnerable group of people who are trying to simply survive in a society that would often we rather not exist at all; as a parent who wants nothing more than my 10-year-old son to grow up in a country where he has the same opportunities to thrive as anyone else, no matter who he is or who he becomes, a little boy who just wants to see his daddy, this woman before you, happy, healthy and safe from discrimination, intolerance, violence and hate.
It is essential that you pass Bill C-16 without amendments as soon as possible. In a world that is consumed by intolerance, injustice and hate, you have the opportunity and the obligation to honour the core values of our country, to lead the entire world and tell our most vulnerable Canadians that you are welcome here, you belong here, you are safe here, and those are words many of us transgender people rarely ever hear.
Thank you.
The Chair: Comfortably under the five minutes.
I should mention that both witnesses have requested that they be referred to by their first names, so I will respect that. Devon, the floor is yours.
Devon MacFarlane, Director, Rainbow Health Ontario, Sherbourne Health Centre: Thank you. Thanks for having me here today. I'm here as the director for Rainbow Health Ontario to discuss how human rights impact health.
For trans health, Bill C-16's implications are no less than critical. Health stems from more than genetics, how often we see a doctor or our habits. Income, employment, housing and social supports are all major factors, especially so for trans populations whom, as we have already heard, experience discrimination in all these areas. As well, we regularly suffer identity-based harassment and violence.
Human rights laws protect people in part by existing and setting the social climate. Passing Bill C-16 will send a clear message to Canadians that trans people are valued and worth protecting in society. It will also send a message to trans people about our safety and belonging in this country.
Studies in U.S. states have found that lesbian, gay and bi people in states without explicit rights protections had significantly worse mental health — including anxiety, chronic depression and PTSD — than their peers in states that had these protections. People in these states without protections also had a higher chance of having multiple conditions at once. Put another way, lesbian, gay and bi citizens were healthier in states with explicit protections. In my professional opinion, trans people in Canada will ultimately be similarly healthier if Bill C-16 passes.
Let's think about the work context. With about 900,000 Canadians employed in federally regulated industries, it follows that an estimated 5,000 or so are trans people. They currently have no explicit legal protection from gender identity-based workplace discrimination.
Long ago, personally, I was afraid to pursue transition in case I got fired. Eventually, I found the courage to move forward. Years later, when I was visibly trans and my work was undergoing layoffs, I was afraid. When I looked around for other jobs, I noticed how people were reacting to my appearance, and I had reason to fear whether I'd be treated fairly somewhere else. For better or worse, that uncertainty kept me where I was.
The Trans PULSE study found that, as I have, 17 per cent of participants turned down job prospects due to safety concerns, and 13 per cent were fired for being trans with another 15 per cent suspecting they had been fired for being trans.
I know the topic of bathrooms has been talked about a lot here and is not clearly connected and not very relevant in this bill. There is limited grounds. However, when we focus on the discomfort of non-trans people, we rarely hear that two thirds of trans people avoid public spaces like bathrooms for fear of harassment or violence. Most of the trans people here in the room today have likely had bad experiences in bathrooms and keep mental maps of where to pee in peace. With this comes significant discomfort, if not outright pain, from holding it when we can't find a safe washroom.
This has health consequences. In a U.S. study, 54 per cent of trans people developed problems like dehydration, urinary tract infections or kidney infections; six per cent had to seek medical care.
Can you imagine being afraid to drink some water in case you were somewhere where it wasn't safe to use the washroom? Or can you imagine needing to see a doctor because of having to hold it? As a trans person, I'm grieved and outraged by this. As a health care administrator, I think it's very sad to be spending health care dollars on problems caused by discrimination, problems that are totally avoidable.
We can't talk about trans people in Canada without talking about the epidemic levels of violence we face, as many people have spoken about before me. Experiencing violence hurts mental and physical health, even more severely when it's identity-based. Trans PULSE found that one fifth of respondents has been physically or sexually assaulted for being trans. Violence against trans people is frequently particularly vicious, and the risk is higher for some than others. Trans women who are racialized are most at risk.
Given that, from a population health perspective, there is no question that Bill C-16 is urgent. In the 12 years that Canada has spent mulling over trans rights bills, from initial concept to tablings, many lives have been hurt or lost through anti-trans discrimination, all without identity-specific legal recourse. By passing Bill C-16, you can send a message to all Canadians about who is valued, who is worth protecting and who has a right to breathe.
Thank you.
The Chair: Thank you. We will begin questions with the deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses for being with us today. I just have one question. As far as epidemiology is concerned, we will be hearing from the expert in a few moments, Dr. Bauer, and you're nodding your head so you know exactly what I am referring to.
The second thing I'd like you to comment on is that the seminal case in Canada for recognition of what we're talking about in vital statistics — your driver's licence, your whatever — is a case called XY v. Ontario back in 2005. The other provinces seem to be falling in line with that decision to recognize and to respect a person's gender.
Could you comment specifically, Devon, because you spoke about health, about Dr. Bauer and about the progress that has been made in the province of Ontario in recognizing what you were talking about here today?
Devon MacFarlane: The progress around recognizing people's gender on legal documents and identity documents?
Senator Baker: Yes.
Devon MacFarlane: It's a very important thing to be able to have the gender markers that are displayed reflect people's gender identities. The reason for that is that it protects people's safety. In part, if I display my identity and it has an F or an M and that doesn't correspond with my gender identity with the way I'm presenting, that outs me as trans and that puts me at risk for violence. This is a very significant step in protecting trans people's safety and lives.
Senator Baker: With Dr. Bauer's work in Ontario, do you have any comment on that?
Devon MacFarlane: It's groundbreaking internationally and it's absolutely vital. It has been referenced in many sources. It has been used across Canada and internationally. Certainly within Canada it has been used to support an understanding of what's happening for trans people.
Senator Plett: My questions are to both Marni and Devon. Gender expression refers to how a person publicly presents their gender, and this can include behaviour and outward appearance such as dress, hair, makeup, body language and voice. This bill explicitly puts gender expression into the Criminal Code as an identifiable group.
Presently, an identifiable group is any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation or mental or physical disability. To qualify under the hate crimes provision, an accused would need to have demonstrated a bias, prejudice or hate to this identifiable group.
While it isn't explicitly clear, it could be argued that transgender people could qualify as an identifiable group under gender identity. However, gender expression encompasses no such a group. Everyone expresses his or her gender, and there is no way to categorize such expression into the group. As a matter of fact, Egale Canada has even come out with concerns on gender expression. How can you make a case that gender expression — not gender identity, but gender expression — is an identifiable group?
Devon MacFarlane: First off, I'd like to state that senators around the table may or may not already be aware that, last Thursday, Egale put out a statement explicitly mentioning their support for including gender expression in this bill and clarifying their previous statements.
Gender expression is really important to include in this bill for a number of reasons. In part, people's identity development evolves over time, so that can mean before somebody has a transgender identity, or before they are sharing that with the world, they may be exploring how they are presenting in society. For instance, in the years where I was very androgynous presenting but had not come out to the world as trans, I would have been protected under the grounds of gender expression if somebody had attacked me.
Ms. Panas: If I may add, for 42 years I hid my truth as a transgender woman, as a person. As someone who struggled with my journey for all of those years, you couldn't have looked at me and knew what my gender identity was. The moment that I mentioned I was transgender, I was already subject to extreme levels of discrimination.
When I start to express my gender, the types of discrimination are quite different and quite distinct as well. The two are separate because my identity is who I am; it's internal. You can't see that. I can't look at any of you, even if your clothes were off, and know what your true gender identity is, but the moment that you choose to express it, the level of discrimination changes.
They are different, and therefore they must both be included as protected grounds because they are quite distinct and the levels of discrimination are quite different that we experience.
Senator Plett: So there should be something in the Criminal Code that allows me not to express myself the way I want? Because I have my hair in some way, I become part of an identifiable group? I don't follow that. Again, with the gender identity, you have both chosen to come out the way you have, and I respect that, but that is very identifiable. Gender expression is not identifiable.
Ms. Panas: By your very question and the statement you read about how we present ourselves with our clothes, our makeup, the ID that we have, all of those things are an expression of our gender. You said yourself you defined it for us in your question, that that is already identifiable.
Senator Plett: I don't agree that it's a group, but thank you, chair.
Senator Jaffer: Thank you both for being here. I appreciate your presence. It takes a lot of courage to come publicly.
Yesterday we had a number of panels, and it was a very interesting afternoon/evening. For me, it was very tough last night because, as a young girl, we did not have race as part of human rights. I wasn't part of Canada either. But when we came here and race was part of the human rights code, I cannot tell anybody in this room what a difference it made. It made it so that we had protection. For me, it is the same. It's an evolution. We are a very open society in the sense we respect each other, and for me it is just the natural progression. We should have done it earlier. We waited too long. One of my colleagues asked why did it take so long, but it has been a progression. I'm not proud that it has taken so long, but we are here.
I'd like to ask both of you — we have limited time — if this bill passes, what it does for you, and if it doesn't, what it does for you.
Ms. Panas: If I might start, I appreciate your question and your honesty, and I think the word "courage'' is quite interesting. I'm not courageous sitting here. The people who are courageous are those who are still hiding and fighting every day within themselves to express who they are because of that fear — fear of losing my family; fear of losing my parents; fear of losing my job; fear of living in a society that would rather I not exist at all; fear of walking into a washroom and then being beaten up for it because somebody says you don't belong here. That's courage: living in that fear and embracing it. This is the easy part. I respect that.
I understand that many of you sitting at this table heard some really disturbing testimony yesterday that made you feel really uncomfortable. It should make you feel uncomfortable, but you were able to walk away from it yesterday. You were able to step away from it and reflect on it. For transgender people, for people who are in this journey, this is something we hear every single day, all day long, in all aspects of our lives. We don't escape this.
What this law will mean to me is that we will be people too, recognized in this country. We can have access to protections, and if we are fired because of who we are, we have recourse for that. We don't have those things as it stands. That's just one example, but very personally, it's that I can feel like I'm a human, that I can have the same opportunities to thrive in this country as any other person in this room. Today we can't say that.
Devon MacFarlane: When I think about what I've heard from my friends and colleagues about what this bill will mean to them, it's that weight off their shoulders. It's knowing that our government is standing behind us. It's a very vulnerable place to be feeling that, as a person, my government isn't recognizing me. So I think that weight off people's shoulders and that yes, our government believes we have the right to exist, is very simple and very profound.
[Translation]
Senator Dagenais: My question goes to Marni Panas. Given the testimony that we have heard up to now, we are far from a consensus on the terms that should be used. Do we have to use "gender identity'' or "gender expression''? Whatever we use, I am convinced that this is not going to be easy to implement. Would you have a preference, in order to lessen the ambiguity that this may cause?
[English]
Ms. Panas: Thank you very much for your question. There does seem to be some ambiguity or confusion on the part of using gender identity, gender expression, but we have many provinces in this country that already have those express grounds. I come from Alberta, where gender identity and gender expression were added as explicit grounds on the basis of discrimination December 2015, under Bill 7. There has not been confusion regarding that. It has been very clear that those protections are in place.
We're dealing in some hypotheticals here, but I think anywhere jurisdictions have added that protection, we have not experienced any of the issues that you might be thinking of.
Senator Joyal: Welcome. As you know, this bill addresses essentially the activities that fall under the jurisdiction or competence of the federal government. In your experience or knowledge, do you have examples of discrimination that have been practised by federal agencies, that you are aware of, which will be corrected if or when this bill is adopted?
Ms. Panas: Yes; actually, many. Under Transport Canada, I could be denied boarding an airplane if I don't look female enough or man enough to match the ID of my gender. That is one example. Another one is Passport Canada. Many Canadians can get a passport to match their true gender identity because of the protections that are in place in their provinces or territories, but other Canadians cannot, so there's already a discrepancy. I think Dr. Bauer's research is very clear. When we look at the fact that 13 per cent of transgender people have been fired specifically because they are trans, it doesn't make a distinction between provincial protected or federally protected people, but it's very clear that those discrimination cases exist. Those are just three examples that we experience every day.
Devon MacFarlane: One of the most critical examples in terms of people who are most vulnerable in our society are trans people in federal prisons. At the moment, my understanding is that Correctional Services Canada is currently in the process of engaging in some consultation about what policies should be. At the moment, trans people aren't protected the way they should be, so I'm very much looking forward to this bill passing into law and our most vulnerable citizens being protected that way.
Ms. Panas: That speaks to the patchwork of protections that we have. Somebody incarcerated in an Ontario provincial jail could be transferred to federal prison and have completely different rights and protections just in that transition.
Senator Joyal: In other words, this bill would streamline the protection that any trans person would enjoy at the provincial or the federal level for a job. I'm thinking really of jobs here. I have in mind what happened to gay people when they were ousted from the public service in the 1960s or the 1950s. As you know, if a person was found to be gay, they would be fired. They were deemed to be a security risk because they were deemed to not be able to give an objective service to the public and whatnot.
If we look at where we have been in relation to gay people and where Canada is now with a gay premier, gay federal ministers and a gay mayor and whatnot, today nobody is questioning that they are not able to do the job that the public trust gives to them.
This bill is a very important signal to normalize, if I can use that expression, the role and public responsibilities that trans people can have. You should not be barred from running in an election if you are a trans person, no more than if you are a gay person. I don't need to name names, but the Canadian political scene is full of gay people who are elected, re-elected and very much appreciated by the public. I don't see why trans people should not have the same opportunity in relation to seeking public trust, in performing public responsibilities and duties.
The federal government will certainly have to review the regulations, practices and interpretations of what I call "good practice'' in the public service. Have you been in touch with the government representative in relation to the overall government regulations and administration practice to be sure that the federal legislation and regulations are streamlined with the status of equality that this bill is proposing to enshrine?
Devon MacFarlane: Not yet, but I would be happy to be.
Ms. Panas: I have been contacted by people with the protective services, or corrections, and I'll be working with the executive leadership of the Public Service of Canada in June for a couple of days in their conference.
One thing you spoke about is equality. Equal rights are not only between you and me but amongst our own community. Right now, we don't have that. We don't have equal rights amongst each other.
Another thing you spoke about is something I think we need to highlight. Just two days ago in British Columbia we had Morgane Oger who just about won and became Canada's first openly transgender elected politician. We are that close. "Normalizing,'' to use your word, this conversation makes those things possible.
We need to stop looking at each other and judging people — their competencies and their abilities — based on their being gay, being transgender, being a person of colour, being whatever gender. We need to stop looking at people's identities and respect people for their abilities and competencies.
The Chair: Okay, we'll have to move on.
Senator Batters: Thank you very much, both of you, for being here. The Ontario Human Rights Commission has produced a policy on gender identity and gender expression and what constitutes harassment and discrimination. They include "refusing to refer to a person by their self-identified name and proper personal pronoun.'' Do you support that policy for both of you?
Ms. Panas: I do support that. In a workplace, if somebody is purposely using incorrect pronouns or incorrect names to put you down, it is a form of harassment and violence. It makes us feel very unsafe in that work environment and is no different than if somebody was calling you words or epithets that are related to your race or your religion. When you create that unsafe work environment, clearly that is a practice that I would absolutely support in that environment.
Devon MacFarlane: I think the critical issue there is "with purpose and intent to put somebody else down and harass them.'' Given that — and that's my understanding of the Ontario Human Rights Code — and that it is the "with intent,'' I do support it.
Senator Batters: Okay, so your interpretation is that it has an intent requirement as well?
Devon MacFarlane: That's my understanding.
Senator Batters: What personal pronoun do you each like to be called?
Ms. Panas: Senator, I really appreciate the question. I think we don't ask each other that question enough. Thank you so much for asking. I prefer female pronouns of "she'' and "her.''
Devon MacFarlane: At work, I use "he'' pronouns.
Ms. Panas: I think we should point out that people will make mistakes, and it's okay. I'm being real with you; that means you're going to be real with me, which means you're going to get it wrong sometimes and misgender me and call me by my old name. I will respectfully correct you every time. Your response is, "I'm sorry,'' and we move on. That's all there is to it. It really isn't more complicated than that.
Senator Batters: Do you have the same view as Devon did when he expressed that it should be a purpose and intent requirement?
Ms. Panas: Of course. If somebody is purposely misgendering me to put me down and hurt me, which is often the case, when people want to go to that place to hurt me, it's usually to attack my gender. Clearly, there's intent behind that, and you can clearly tell the difference. I support Devon's statement.
Devon MacFarlane: It's common to make slips around somebody's name or pronoun, but a slip with an apology, "Sorry, I meant no disrespect,'' tends to be something that people are aware happens.
Senator Batters: Right. What about the other personal pronouns that we've been hearing about? Quite frankly, this is a new subject area for me, so it's not something I'm familiar with, but personal pronouns that aren't "he'' or "she.'' You may be familiar with those types of pronouns. Is it a common requirement that people in the transgender community prefer to be called by those types of pronouns?
Ms. Panas: I think what we do is exactly what you did, which is ask somebody what they prefer to be called when you don't know for sure. And somebody may give you a different pronoun. Really, these pronouns are what we've created. If I know I'm using a term or something that offends somebody, my good nature and my heart will allow me to stop doing that. It's simple decency and courtesy to respect what people want to be called. It's really as simple as that.
Senator Batters: Do you have a comment on that?
Devon MacFarlane: I would agree with Marni.
[Translation]
Senator Dupuis: Thank you for being here with us this morning. I was wondering if the Department of Employment and Social Development has consulted you. Following a complaint to the Canadian Human Rights Commission, there was a settlement between the complainants and the department that the latter would not use data on gender or sex to identify people unless there was a legitimate reason, such as for a program evaluation. As a result, the department was no longer going to ask for documents before amending the indication of sex or gender in the registry of social insurance numbers. I assume the department had to amend some regulations. Senator Joyal spoke about the need to change the ways of doing things in terms of policies and regulations. I was wondering if you had been made aware of that work or of the complaint that led to the agreement. My question goes to both of you.
[English]
Ms. Panas: I'm not familiar exactly with the initial complaint, but I'm familiar with the outcome, and it's something we face all the time. When you look often at the question about gender on forms, the gender ID, like the Social Insurance Number, really we're asking what is the purpose of even asking that question. You yourself called it a habit. We often ask those questions because we always ask those questions, but we don't actually do anything with that information. We don't treat different people under the social insurance act differently than others depending on gender. We really have to remove some of those identifiers because they serve no real purpose. There are many other ways of identifying people that are much more efficient.
Devon MacFarlane: While I wasn't consulted on this federal work, I was one of the key informants on similar work in Ontario about the collection, use, retention and display of gender identity sex markers on provincial documents. I think the result that they came to around only when required for program evaluation purposes, it makes a lot of sense.
Ms. Panas: If I may add, I work for Canada's largest health care provider, and we're going through our forms. We have about 100,000 forms, and many of them ask the question about gender, and we are reviewing them form by form to ask the question: Is it necessary? Is it necessary for the type of treatment we're offering? If it doesn't have to be asked, we won't ask it, or we'll ask the question we really want the answer to, so there is a very substantial review of those questions going on right now.
Senator Omidvar: Thank you to both of you for your testimony. My question is for Devon. We heard testimony yesterday that Bill C-16 would potentially chip away at the traditionally defined women-only spaces, including shelters, for instance. Perhaps you can comment on this reality from a public health perspective, Devon.
Devon MacFarlane: Perhaps, if you're open to it, I'd first comment on it from some of my previous experience providing training for shelters and transition houses around the inclusion of trans people.
You may have the impression from yesterday that all women's organizations feel the same way the speakers yesterday did. As a matter of fact, about 17 years ago in B.C., one of my colleagues did her master's research on whether sexual assault support centres and transition houses were welcoming to trans women. Seventeen years ago, 72.5 per cent of them described themselves as welcoming to trans women. Given that, I don't think this erodes women's rights. Trans women are women, and women's organizations have long been working with trans women.
Senator Mitchell: Thank you very much to both of you. We're very fortunate in a sense in assessing this bill because we've had so much experience with bills like this at the provincial level. We've had these crucibles of research, in a sense. I'd like to get one step past that to the accommodations and the way in which this legislation has been integrated into daily lives successfully.
I think, Marni, you'll be aware of the work of the Edmonton public school board. I've discussed extensively with them what they've done and the success they've had. In fact, one official said that, to the best of their knowledge, the only people they've ever had complain about it were people who don't have kids in the schools.
Could you talk about accommodations that have occurred in Alberta, perhaps, specifically in the Edmonton public school board, and, Devon, perhaps in Hamilton or wherever, how that has worked because people are working in good faith?
Ms. Panas: It's very interesting. Thank you very much, Senator Mitchell, for that great question.
In Alberta, there has been a lot of leadership, particularly with the Edmonton public school board. I don't like the word "accommodating'' because these students just exist. It's often the students that don't have a problem with this. It's the adults that have to be educated by our students. So the Edmonton public school board has done a great job.
Where I would really like to draw attention to is the Edmonton Catholic school division, however, where I got involved in a lot of my work, as when we have a transgender non-conforming child who expresses their gender and they essentially force that child to go into a gender-neutral washroom way on the other side by the office, escorted by a teacher, essentially outing that child every single time they have to use the washroom, to a point the child just stops going to the washroom and holds it, as you articulated. When children are too scared to go to the washroom and holding all day until they get home, those are real issues. Those are challenges we still face even back home, which is now before the human rights tribunal in Alberta.
But the Edmonton public school board has taken that leadership, and, again, the issues have not been among the students. We're looking at rights to even have a GSA and having GSAs in our schools, and, again, let the students teach us.
Devon MacFarlane: On the note of GSAs, some research from B.C. has shown that where GSAs exist, not only is the health improved for lesbian, gay, bi and trans students, but the health of straight students improves as well. I think this is an area where bringing in Bill C-16 will contribute to better health and well-being for Canadians overall.
Ms. Panas: We can extrapolate from that, because when you create a safe environment for one marginalized population, when you improve the experiences for one group of people, society benefits. We up the bar for what we expect from each other, from our government and from the people providing services. We improved experiences for one, but this is a bigger conversation to create a better place for all of us to exist in.
Senator Mitchell: When you say GSA, that's gay-straight alliances?
Devon MacFarlane: Sometimes it's gay-straight alliances, and sometimes it's gender sexuality alliances, varying from school to school.
Senator Mitchell: One of the issues that trans people face is access to medical care. Often, there is discrimination there, surprisingly. I wonder if you could explain your experience with that, what needs to be done and why it happens.
Devon MacFarlane: I can take that one. With Rainbow Health Ontario, part of what we do is provide training for health care providers across the province. This is necessary because most health care providers have not had opportunities to learn about how to engage respectfully with trans people while they're in training.
There's currently some work being completed to add content related to gender identity into medical schools and other curricula at this point in time. In fact, the Canadian Medical Association adopted a couple of position statements a few years ago where content should be added into the curricula.
Part of why this is vital is that trans people do have a history of avoiding health care because of fears of discrimination, and Dr. Bauer, I'm sure, could speak about this much more fully than I could. However, if one is avoiding health care and has been physically or sexually assaulted, what's the outcome going to be?
Ms. Panas: I do work for one of our large health care organizations and, in the last year alone I've presented to and worked with over 5,000 health care providers, including nurses, doctors, social workers and such. What I've found is one of the biggest barriers to accessing health care is health providers saying, "I don't have experience providing care to people like you, so you need to go somewhere else.'' It comes down to that lack of knowledge and a lack of confidence in caring for us as patients.
That is evolving. I am on a committee with the University of Alberta Faculty of Medicine and Dentistry, who have just revamped the entire four-year curriculum to include LGBTQ health as embedded throughout the entire four years. In looking at all diverse populations, it was very intentional to actually start including trans health in these conversations.
Senator Frum: Following up on the question Senator Omidvar asked you about women's-only safe spaces and rape shelters, in response to that, you made the point that trans women are women, and I agree with you. Where this gets more complicated, it seems to me, is around gender expression. We know that gender expression can include men who internally feel female, but it's on a spectrum.
The Nixon case was about a volunteer. A transgender woman is a woman, fine, but what if that volunteer was someone who was protected because of gender expression and their gender expression still has them physically presenting as male? Do you understand my question? In this clash of potential rights, this is where I'm concerned that gender expression is just too vague.
Devon MacFarlane: One of the things that I've noticed that has come up a lot in the conversations about male and female is that it's been positioned as a binary and, in fact, there are many more sexes than that. People may or may not have heard the terms intersex or an older term, hermaphrodite, that's no longer used. There are many people whose bodies don't correspond to medical definitions of male and female. It's about one in 200 people, in fact.
When we think about gender expression and considering that as grounds to be challenged, some of the challenges of that are that people who are genetically female may grow beards and people who are genetically female may wear pants. Traditionally, we've seen that as a male gender expression, so there are some challenges around that.
What I come back to is that transition houses and shelters have been working with trans women for many years. It's something that, aside from the Nixon case, hasn't come forward in law as a concern. In that research I was mentioning where 72.5 per cent of the agencies included trans women, 17 years ago, only one had made a decision to choose not to welcome and include trans women.
When you talk about people who may be male and have a sense of themselves as a woman, those are trans women, regardless of how those people are expressing at that moment in time.
The Chair: We have time for a few more questions in the second round, beginning with Senator Plett.
Senator Plett: I want to, if I could, please, continue a little bit on the line of what Senator Batters asked earlier, and now Senator Frum, again, dealing with gender expression.
I do not disagree that, if someone wilfully uses the wrong pronoun out of hate or disrespect, there should be something there. I agree with that. But Marni, you talked about the Catholic school division in Edmonton. We have, as Senator Frum alluded to now, gender-fluid people, and we have no genders. As a matter of fact, I'm being told there are — and I don't know what they are; I'd like to get a list — 70-plus genders.
So it would not always be clearly evident to somebody what you would like to be referred to as, and of course, you can tell that person, I agree. But the Catholic school division, for religious reasons, is making certain decisions. Religion is part of this bill, along with nationality, ethnicity, colour, race, sexual orientation and gender identity. So if someone, for religious reasons, just does not believe or agree with doing this, should they not be afforded the same protection that you are afforded? If they have not entirely transitioned — I'm wanting to use the correct terminology here and be respectful — and they are gender fluid, and one day they're a man and the next day they identify as a woman, if I, for religious reasons, cannot call them something that I believe they are not, what kind of protection should I receive if that is the case?
It's not just Catholics or Christians; there are other religions that would, for religious reasons, not want to do this. What kind of protections should those people receive under this bill?
Ms. Panas: Well, they're already protected. I think part of it, in this country, is we can't use our religion to deny protections for people. We can't base it on that.
In the Catholic school division office, trustees have an obligation to remove all the barriers and provide the same opportunities for a safe and welcoming learning environment for every student that comes into that place, especially in a publicly funded institution like they are.
Let me tell you a story about people who have certain feelings. I am a Catholic woman and I was raised Catholic, and when I came out to my priest, I said, "This is what's going on in my life. Will I be able to continue practicing my faith the way that I always had?'' He said, "I have no idea, but can I take a couple of days to think about it?''
Two days later, our bishop phones — we're Ukrainian-Catholic, by the way — and asks, "Can you come into the office?'' I asked the same question and he said an overwhelming yes. He said, "The church is a who, not a what. The church teaches about being open, welcoming, loving and kind. But because the church is a who, we don't always get it right, but I will always be kind to you.'' And he always has been, and our congregation always has been.
It think it comes down to our hearts and our faith. In my faith, I have been taught not to disregard anyone else, but to love someone and accept them for who they are. That is what my faith has done for me, and I think even in that context we can still love a transgender child in any faith.
Senator Plett: I agree with you 100 per cent. This is not about being kind; this is about a belief. Senator Batters pointed out what the Ontario Human Rights Code has said. The federal government has said they will adopt the Ontario Human Rights Code, right on their website, so I am, by law, going to be required to use a pronoun. This isn't about preventing you from going to the bathroom. I raised that because you raised the issue of the Catholic school. Being unkind to you is wrong and I shouldn't be unkind to you, but not calling you by the pronoun that you want to be called by one day and maybe a different one the next, that's not —
Ms. Panas: That's not how it works, senator.
Senator Plett: I'm sorry, but that's the way the Ontario Human Rights Code describes it; it does.
Ms. Panas: Let me ask you a question, senator. If you knew that calling me a certain name would put me at risk of violence and discrimination from anyone else who would come in contact with you, would you still do that?
Senator Plett: I would certainly hope that I wouldn't, but I'm not the witness —
Ms. Panas: I would hope that, too. That's all we're asking.
Senator Plett: But that's not what the bill is doing. I don't disagree with you. That's probably what you're asking, but sometimes we have unintended consequences. These may be unintended consequences, but the bill, according to the human rights code, will ask me to do something I may not be comfortable with.
You asked to be called Marni. If I called you Don, that would be unkind. I have no issue calling you Marni, but that isn't the question here. We're talking about pronouns, not about your first name.
Ms. Panas: But if you called a female trans child in a school by their male pronoun, you have not only violated their rights but their protection and their expectation that they should be able to come to that school and be safe from violence, discrimination and harassment from their fellow students and —
Senator Plett: What if my religion won't allow it?
The Chair: We have to move on.
Senator Baker: I think as the witnesses said, there has to be intent to do something untoward, and the mens rea element is there and intent has to be there. It's not just a matter of pronouns; it's a matter of intent. And under this legislation, as Senator Joyal has clearly pointed out in his submissions, it involves intent in the Criminal Code to do some terrible things.
I just wanted to correct the record on Senator Frum. She didn't have to be corrected; it's just that what Senator Frum was saying was that the Nixon case in British Columbia was determined on section 41 of the B.C. Charter of Rights, which doesn't apply to volunteer organizations. She's absolutely correct on that.
I don't have any further questions. I think you've done a marvellous job here today, witnesses.
Senator Pratte: Thank you for your testimony. My interpretation of what the Ontario Human Rights Commission says is not that it would force people to use a specific pronoun. I would want to read very briefly what they say, and I want to know whether you're comfortable with that. It says that some people may not know how to determine what pronoun to use. Others may feel uncomfortable. Generally, when in doubt, ask a person how they wish to be addressed. Simply referring to the person by their chosen name is always a respectful approach. So they're not forcing anyone to use a specific pronoun. They say that asking what pronoun or using simply the first name, like we're doing here today, is always a respectful approach. Would you agree with the approach suggested by the Ontario Human Rights Commission?
Devon MacFarlane: Absolutely.
Ms. Panas: I agree, 100 per cent. I think the use of gender pronouns in and of itself does not make you a criminal in any way, but if you're using that term or something like that, or even if you're talking about race and using a racist epithet in the course of committing a violent act against another person, that may be used as proof to show intent and hate but in and of itself is not. A respectful way is just to assume my first name or ask. I think that's all we can ask of anybody. Thank you, senator.
Senator Jaffer: I wasn't going to mention this, but you mentioned Ms. Oger, who won an election in B.C. and it took a lot of strength for her to do it. Just supporting her, I got a lot of hate mail, so I don't know what she got.
As a woman, I've always fought to be at the table to represent my point of view. I believe the Senate changed with more women, and it will continue to change when women become 50 per cent of the Senate. What issues we look at, what priorities we have, how we deal with issues, it changes with who is sitting around the table. When you're not sitting at the table, what does it do to you?
Ms. Panas: When you're not at the table, you're usually on the menu.
Senator Jaffer: Devon?
Devon MacFarlane: I think it's vital to be at the table to bring forward the issues and help shape the conversation. Otherwise, I would agree about being on the menu. It's very easy for a conversation to shift a little sideways from the way that people themselves would present an issue, so I very much appreciate the opportunity to be at the table today.
Senator Joyal: To your knowledge, is there any religion that prohibits or makes it a sin for a person to identify in whatever sex or no sex that the person decides to have?
Ms. Panas: My catechism has escaped me from years ago. All I can say is I don't know any religion that would deny loving somebody and welcoming somebody into their family. Some people may use religion on those grounds, but I don't know any that would.
Senator Joyal: Devon, do you know?
Devon MacFarlane: I can't comment. It's not my area of expertise.
Senator Joyal: What is the most recurrent stereotype you are the victims of?
Ms. Panas: I appreciate that question. It's such a great question. There are many, I assure you, but I think Senator Frum kind of mentioned — although I do not accuse you of this; it's not what I'm saying — or alluded to men dressing up as women or men who are inside women are not women. Essentially, it's about people thinking I'm pretending to be something I'm not, that I'm trying to get away with something, that I'm a fraud, that I'm not who I say I am.
I can assure everyone in this room that somebody does not come out as a transgender woman for privilege. It comes at a great cost. I have lost my parents and I am going through a divorce, yet I have a lot of privilege. I'm not even close to what most of the people in my community face. People don't do this for privilege. I'm not pretending anything that I am. I'm finally living who I am and that is the real disconnect.
I think that is the underlying bias that really perpetuates a lot of this intolerance and discrimination that transgender women aren't truly women. Our journey to womanhood and understanding our roles in womanhood are different than cisgender women as it is different for an indigenous woman or a White woman or a woman of colour or a Muslim woman. We all have different journeys to bring us to womanhood. The fact is I'm real, and that is the stereotype that we're trying to break, or that I am, anyway.
[Translation]
Senator Dupuis: Along the same lines, if I may, you made a distinction that seems important to me; it is between identity, or what you are inside yourself, and the expression of that identity that you mentioned and that must be protected differently. This is because the greater discrimination is in the expression of gender than in its identity. Can you give us some examples of that?
[English]
Ms. Panas: I'll give you an example. A friend of mine, at 10 years old, was gang raped. She was presenting as a male but she could not hide her gender identity at the time. There was no masking it. She has survived that, and even though suicidal at age 10, if you could possibly imagine, she is now 68 and is a retired physician, a very prominent and respected physician, but has lived for 58 years with the PTSD from that moment. As soon as these boys and brothers in her class discovered what her identity was that she couldn't hide, it has caused her a lifetime of turmoil.
The Chair: Thank you for being here today and assisting the committee on the deliberations of this bill. It is very much appreciated.
Joining us for our second hour are Greta Bauer, Associate Professor and Graduate Chair, Department of Epidemiology and Biostatistics, University of Western Ontario; Nicole Nussbaum, Barrister and Solicitor; and from the Canadian Bar Association, Siobhan O'Brien and Marie Laure Leclercq. Thank you for joining us.
We'll lead off with opening statements and remind you all up to five minutes. From the Canadian Bar Association, I'm not sure which representative will speak. The floor is yours.
[Translation]
Marie Laure Leclercq, Canadian Bar Association: First of all, I would like to say that I am francophone, but I am going to speak in English for you. So I ask, and thank you, for your indulgence.
[English]
Good morning, honourable chair and senators. My name is Marie Laure Leclercq. My colleague and I are appearing today on behalf of the Canadian Bar Association. The CBA is a national association of 36,000 lawyers present in the 10 provinces and 3 territories, including Quebec notaries, law professors and students, with a mandate to promote improvements in the law and the administration of justice.
I am a former executive member of the CBA's Sexual Orientation and Gender Identity Community Forum, or SOGIC, as we know it. SOGIC's mandate is to address the needs and concerns of lesbian, gay, bisexual, transgendered and two-spirited people within the CBA.
Siobhan O'Brien, Canadian Bar Association: Good morning, honourable chair and senators. My name is Siobhan O'Brien. I'm a member of the CBA's Labour and Employment Law Section. The section's mandate is to consider a wide range of work-related issues from all perspectives, so labour, management and neutrals. I practise labour and employment law, as well as human rights law, with an expertise in workplace issues related to the LGTBQ population.
Ms. Leclercq: We are here today with a simple message. The CBA supports Bill C-16 without reservation or qualification, and we encourage you to do the same.
Human rights legislation is a powerful vehicle to guide understanding and education about the rights of all Canadians, to redress harms caused by harassment and discrimination on prohibited grounds and to advance a culture of inclusion and respect.
The Canadian Human Rights Act is dedicated
. . . to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to 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 . . .
The inclusion of gender identity and gender expression as prohibited grounds of discrimination will send an important signal to all Canadians that the transgender community is an integral part of our vision for a more tolerant and inclusive society.
The hate crime provisions of the Criminal Code are intended to deter violence against vulnerable groups in society, the kind of violence that causes individuals to fear public spaces and forces them to defend their very humanity at every turn. The inclusion of gender identity and gender expression in the definition of identifiable group will send an important signal to all Canadians that the transgender community is an integral part of our vision for a safer and more democratic society.
These amendments have been a long time coming, too long we say. In fact, the federal government finds itself as one of the last jurisdictions in Canada to acknowledge these rights in legislation. Yes, there continues to be opposition. Our written submission addresses some of the more current and, in our opinion, unfounded arguments against the bill, and we welcome the opportunity to address them during questions.
Ms. O'Brien: Senators, we would like to focus on what Bill C-16 will achieve. The Bill C-16 amendments to the Canadian Human Rights Act will make explicit that it is a discriminatory practice for employers and for providers of goods, services, facilities and accommodations to deny or differentiate adversely in the provision of any good, service, facility or accommodation on the basis of gender identity and gender expression. It would be a discriminatory practice to refuse to employ or to continue to employ any individual based on gender identity and gender expression. It will be a discriminatory practice to adversely differentiate in the course of employment based on gender identity and gender expression. It will be a discriminatory practice to establish or pursue a policy that deprives an individual of employment or opportunities in employment based on their gender identity or gender expression; and it will be a discriminatory practice to harass an individual on the basis of gender identity and gender expression.
Greta Bauer, Associate Professor and Graduate Chair, Department of Epidemiology and Biostatistics, University of Western Ontario, as an individual: Honourable chair and senators, it is my pleasure to be here today to speak with you and to share with you some of what my community and academic colleagues and I have learned in over a decade of research on trans people in Ontario.
I will be presenting data focusing on data from Trans PULSE, funded by the Canadian Institutes of Health Research, as we have published 21 academic peer-reviewed papers off of this in addition to three book chapters and 14 reports or bulletins. Obviously I'm only going to focus on a few key points.
In most regards, trans people in Ontario are similar sociodemographically to the population. Best estimates are that one in 187 people are trans. Eighty per cent of trans people knew prior to the age of 14 that their gender did not match what other people assumed it to be, even though most didn't begin living in that gender until much later. About one in five is non-binary and has a deeply held sense of themselves as something that doesn't fit neatly into male or female.
There remain threats to the safety of trans people, negative impacts on their physical, mental and social well-being and challenges to their full participation in Canadian society.
I'm just going to read off a few quick statistics on trans Ontarians. You've already heard that 13 per cent have been fired for being trans, but another 15 per cent were fired and thought it might be because they were trans. Can't always tell. Fifty-eight per cent could not get academic transcripts with the current name or sex designation. Median income was $15,000 a year. Even amongst those who were living full-time as men or as women and had legally changed their names to reflect this, 70 per cent had not been able to legally change the sex designations on all of their identity documents.
Twenty per cent report physical or sexual abuse for being trans and an additional 34 per cent harassment or threats. Many did not report these assaults to the police. In fact, 24 per cent report being harassed by the police. Thirty-two per cent, as a result, have had to move away for their safety or to access services, and this number was double amongst indigenous gender-diverse participants. Seventy-seven per cent worried about growing old as a trans person.
I could go on like this, but I think we understand some of the situation.
Despite the great resilience that trans people have, these experiences have consequences in creating a sense of hopelessness and creating fear of continual discrimination. We know that trans people avoid medical care. We know that 21 per cent have avoided going to the emergency department in a potential medical emergency. Can you imagine feeling safer outside of the emergency department in a potential emergency?
Our data support the potential for social inclusion and gender affirmation to have strong, positive impacts on the well-being of trans people, and we have seen this for the impacts of parental support for gender on trans youth. We have seen this in a lot of areas, but I want to focus on one, because we have recently done a very detailed analysis looking at intervenable factors that have the potential to reduce suicide risk in trans people, and we know that suicide risk is high and not evenly distributed. Those who have experienced violence are at more risk of suicide. Those who are planning to transition but haven't begun are at high risk whereas those who have completed are at 1 per cent per year, down close to population rates.
In our analysis to identify intervenable factors, we found large impacts. I will give you one example. We modelled this. If we were able to take transphobia, a broad measure, and reduce from current population rates down to the tenth percentile, that's to the point where trans people only experienced occasional incidents of transphobia, we predict a 47 per cent reduction in serious consideration of suicide in a given year, from 34 per cent of trans people to 18 per cent. This means for every 100 trans people, 16 would have a much better year where they weren't in the kind of psychological distress that made them think of ending their life.
Furthermore, even amongst this then reduced number of people considering suicide, we modelled an additional 65 per cent reduction in the attempt risk, so even those who were considering suicide would be less likely to actually act on that. That's one finding.
In addition to protections from transphobia broadly, the other factors that we identified as potentially having a large impact were social support, gender support from parents, specifically; protection from transphobic assaults, specifically; having ID concordant with one's gender; and gender-affirming medical care for those who needed it.
I note with the exception of general social support, these are all factors related to interpersonal, medical or structural gender affirmation or to protection from discrimination and violence. So in short, they relate directly to areas potentially impacted by Bill C-16.
I fully support this policy, obviously. Currently we have these protections in place elsewhere. We have full support for this. Every time we have come back, we come back with more evidence.
I wanted to bring up one point that's slightly —
The Chair: Sorry, you won't have time.
Ms. Bauer: I don't have 30 seconds?
The Chair: No.
Ms. Bauer: Okay.
N. Nicole Nussbaum, Barrister and Solicitor, as an individual: Thank you, and I just want to apologize for not having a written submission. I have been dealing with some medical issues lately.
I appreciate the opportunity to speak to this bill. I think the question for this committee and before the Senate is not really whether or not protections for gender identity or expression should exist at law in Canada. They do. Every court or tribunal that has had these matters before it has found that discrimination and harassment based on an individual's gender identity or expression are prohibited. That does not mean that the outcome of every case has been determined in a particular way, but there has been a finding that the protections exist. And there has not been a case in Canada that has found that gender identity or expression are not prohibited grounds of discrimination.
That being the case, some have asked why the need for the bill. First of all, the discussion that has ensued within the Senate, within the house and nationally, the question of do these rights exist, makes it very clear that the clarification, that clarity, is needed.
With respect to the specific provisions of the bill, the need for explicit protections was formally recognized 17 long years ago in the report of the Canadian Human Rights Review Panel chaired by former Supreme Court of Canada Justice Gérard La Forest. That was released in June 2000. 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.
As we all know, since that date the bill has been introduced several times. It has passed multiple times in the House of Commons and it has never gotten to a final vote here in this house.
The Supreme Court of Canada has dealt with the specific exclusion of grounds of human rights from human rights legislation in the Vriend case. In that case, the court in Alberta, and the Supreme Court eventually, was called upon to determine whether or not Alberta's exclusion of sexual orientation from Alberta's human rights legislation violated the right of gay and lesbian people to equal benefit of the law. The Supreme Court, in that case, found, number one, there were no protections that existed at law, so there was no legal recourse. That was one aspect of their finding, but the court went on and talked about the other impacts of being excluded from human rights legislation.
I would like to read a couple of paragraphs from the decision. The court says:
However, let us assume, contrary to all reasonable inferences, that exclusion from the IRPA's protection does not actually contribute to a greater incidence of discrimination on the excluded ground. Nonetheless that exclusion, deliberately chosen in the face of clear findings that discrimination on the ground of sexual orientation does exist in society, sends a strong and sinister message. The very fact that sexual orientation is excluded from the IRPA, which is the Government's primary statement of policy against discrimination, certainly suggests that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination. It could well be said that it is tantamount to condoning or even encouraging discrimination against lesbians and gay men. Thus this exclusion clearly gives rise to an effect which constitutes discrimination.
I think the court's analysis is very clear there and has direct applicability to the question of this bill. You have heard about the high levels and pervasive experiences of discrimination and harassment.
I am project lead on Transforming Justice: Trans* Legal Needs Assessment Ontario, and we did a survey, focus groups and workshops with trans people and legal service providers. We are about to publish our first report. We found that 43 per cent of trans respondents to our survey reported dealing with issues of discrimination and harassment and having legal issues with discrimination versus 5 per cent of the general population.
The Chair: We'll have to leave it there and go on to questions, beginning with Senator Baker.
Senator Baker: Thank you, witnesses, for your very excellent presentations and your great contribution to the law, each one of you, not just the lawyers there, but also Dr. Bauer. I say that, and I get to my one question that I'm going to ask.
I was looking at a case that is presently before the Superior Court of Quebec that Senator Joyal has, because he's appeared before the Quebec court many times, not as an accused but as a lawyer. This is in French, but it is what happens when we change the law and then the government doesn't follow through on the necessary changes that should result from the change in the law.
In Newfoundland, we do it very quickly. We changed the requirements of driver's licences, birth certificates and so on by using the case of XY v. Ontario, which you lawyers know all about. That's the seminal case in Canada for what we're talking about here today, provincially.
But in Quebec, there is presently a case before the superior court, and I don't know whether Senator Joyal would agree, because it's presently before the court, whether we should be talking about it.
Senator Joyal: With reserve.
Senator Baker: With reserve. Let me say this about what struck me and gets to my question, Dr. Bauer. I want to thank you for establishing the privilege of academics to conduct research without having to give away the names of those people who were interviewed, and you've established that. Now, in case law, we have had three subsequent cases. Here is what struck me, very simple question.
They're using, in this particular case, your study. They are saying that you have established, by interviewing over 400 transgender persons, that, I believe, something like — reading the French — about one third had contemplated suicide, brought down to about 10 per cent or 4 per cent if they had some identification, one piece of identification, that identified them as being transgendered. Am I misreading this? I'm not, am I. Could you explain to the committee the significance of that? Those transgender persons who contemplate suicide and who commit suicide, in your study, your seminal study, over 400 people in the province of Ontario, could you explain that to us, the significance of not just enacting the law but the government carrying through and making changes to their vital statistics and so on?
Ms. Bauer: Thank you. These structural factors are critically important. When we started this research, we started with existing research, which was largely psychological. We talked about going in the direction of looking at resilience. How could trans people respond better? We realized that nobody should have to be that resilient; right? You shouldn't have to be that resilient because there are so many structural factors in place, and that's part of how the project evolved to be as policy relevant as it did.
With regard to identity documents, for those of you who haven't thought about it, imagine that you have no identity document that has an M or an F that matches your gender. You're a student at Western. Our students go out to drink a lot. You're a young trans woman. Are you going to go to the bar and give the bouncer your driver's licence that has an M on it and then going to go drink? Think of how much risk young women are in for violence at bars. What if you're not out to your friends. You're going to be outed to your friends, so you're not going to go out with your friends. Are you going to drive? If you're pulled over and have to produce that identity document, you're alone on the side of the road with a police officer; 24 per cent of trans people have been harassed by police. How safe are you going to feel in that situation?
There are people who don't travel internationally because of lack of consistent identity documents. There are people whose lives are so inhibited. We looked at avoidance of public space. We were relating it to experiences of violence, not so much identity documents, but the majority of the trans people who had experience transphobic assault were avoiding a large number of public spaces. About a third were avoiding more than half of the types of spaces that we asked about. People's ability to participate fully in social life and to access the public spaces that other people take for granted is tremendously impacted by these structural factors.
Senator Plett: I have two questions, one for CBA and one for Ms. Palmer. No preamble. I'll ask both questions before either one answers if that's all right.
Presently, the only protected ground — and this is for CBA — that is not an immutable characteristic and is based on an internal and personal experience of gender is religion. There is protection for discrimination based on religion, but the expression of that religion, for example wearing a niqab or a turban, is implicitly covered by this ground. Likewise, gender expression would be covered by gender identity. Would you not agree with that comment? If not, why not?
Then for Ms. Palmer: Senator Baker has continually talked about the great laws that the provinces have and that every province has this law and how wonderfully they all work. Yet, we hear about the high rate of suicide, and he mentioned it just now again. Given that similar legislation has existed in many provinces, in Ontario for five years, why has it failed to stop the bullying, discrimination and negative outcomes that we are hearing about, and why do you think that introducing it federally, when the vast majority of jurisdiction is provincial, not federal, that passing this bill, will somehow stop or reduce all of that?
CBA and then Ms. Palmer, please.
Ms. O'Brien: In terms of commenting on gender expression, I'm sure my colleagues will want to jump in as to the terminology and what is or is not captured by "gender identity.''
Senator Plett: You're the lawyer.
Ms. O'Brien: I am the lawyer, and, for my part, "gender expression'' is equally as important as "gender identity'' as it's the manifestation of gender identity. It's incumbent upon lawmakers to ensure protection for gender expression so as to protect those individuals, for my part, in the workplace, so they can be assured that they can express themselves in the workplace.
As a human rights lawyer in the workplace context, I am not troubled by the proposed inclusion of "gender expression,'' nor am I troubled by the fact that gender expression is not explicitly defined.
Gender expression and gender identity are found in most Canadian human rights jurisdictions. Human rights decision makers have elaborated on the meaning of such grounds in hundreds of cases, with reasonable outcomes and references to the purpose of the law. Decision makers interpret those grounds in other jurisdictions. They likewise interpret all grounds, as they do here, because that's the operation of the common-law system that we have.
In addition to the case law, we have, as you've expressed, the commissions who are expressing law. Although it's not leading, it does assist in the interpretation. If there is a concern about the scope of gender expression, it may assist to understand that other jurisdictions, in interpreting gender expression, do place parameters around what it may mean.
For example, in Ontario we have a number of cases coming out in 2016 that express that gender expression is not intended to capture a cisgendered individual, a cisgender's intention of, for example, a male having a beard or a male expressing himself in a stereotypically male way. Those are not protected by the grounds of gender expression. The application mechanisms of the law for that interpretation I think satisfactorily resolve the issue.
Ms. Bauer: In response, I would say that we actually don't have evidence as to whether or not these rates have gone down since policies have changed. What we have are a lot of different cross-sectional studies. We have Trans PULSE, we have the TransYouth study, and we have some current studies on access to medical care and on the health of trans youth referred for medical care. But nobody has been able to repeat a study twice to be able to see if that has changed, so there's no evidence.
Senator Plett: Five years in Ontario and you haven't done a study?
Ms. Bauer: We're still analyzing data from our first one. Now I'm running a study of trans youth referred for clinical care. There are other priorities as well, but we hope to go back and be able to collect more data.
Let me just say that I don't think there should be an expectation of an instant change to this. We know, for example, that having been physically or sexually assaulted for being trans is strongly associated with suicide risk. But those past experiences don't go away, even if a change in policy could perfectly protect everyone going forward, which it won't, so those still carry forward.
Moreover, even with increased safety, there's going to be a lag between increases in safety and people feeling safe and feeling not at risk. If you take a life course approach, people's past experiences will carry forward.
The other thing I'd like to say is that being lifesaving isn't the threshold for human rights protections. I think there's no expectation that we only have these protections if they save lives and reduce suicide risk. We have ample evidence of discrimination and the need for protection, regardless of whether there was that outcome.
Senator Jaffer: Thank you for your presentations. As a member of the CBA, it makes me proud to hear your presentations. It makes me proud that I have colleagues such as you, and also, of course, Professor Bauer.
One of the things I've been looking at a lot — and we had this in the hearings at the House of Commons standing committee — is that the former bill, Bill C-279, which addressed the same issues this bill is addressing, some witnesses there stated that the bill did not in fact add new rights, since the case law indicates that gender identity is already considered to be an existing prohibited ground of discrimination. Rather, they claim that Bill C-279, and now Bill C- 16, provide more explicit protection for transgender Canadians.
Does Bill C-16 provide new rights that are not yet recognized by Canadian law?
Ms. O'Brien: I would answer that, yes, it does. While it's true that when a complaint is filed on a ground not present in human rights legislation, it may be found to be an analogous ground. In the case of gender identity and gender expression, that's been found on the ground of sex in the Canadian human rights federal sphere.
However, to do so requires an extra step on the part of the complainant. Implicit protections require a complainant to first prove that they're covered by the legislation and that they have a characteristic that is analogous to those explicitly stated in the legislation. If there are no explicit protections, implicit protections may be challenged.
For example, I would point to a 2014 case out of Alberta, C.F. v. Alberta (Vital Statistics), where the Government of Alberta contested that gender identity was analogous to sex. The court had to determine that question before it was able to turn its mind to whether there was discrimination. That challenge or contestation of the fact that gender identity was analogous to sex occurred despite the fact that that analogy has been drawn numerous times in the past by several jurisdictions.
Ms. Nussbaum: If I can add to that, the C.F. v. Alberta case is quite an important case because it recognizes that the Charter protects gender identity as an analogous ground. It's precedent-setting in that sense.
With respect to the issue of whether or not this provides new protections, what I think it provides is recognition that there's an endorsement of the importance of the protection of these rights. A protection is a protection is a protection. Because no rights are absolute, whether or not it's protected under an explicit ground I don't think has much of an effect in terms of the scope of the protection. The application of each of these protections is going to be defined in the details of the particular case.
In terms of what the case law has said to date, it has nailed down a lot of the middle-ground, day-to-day, bread-and- butter kinds of issues. Whether or not there are still little things that have to be determined on the periphery of those general protections — competing rights, those sorts of things — I think those things will continue to be fleshed out by courts and tribunals, as they are with every other ground. These grounds are not unique, and I think some of the objections that have been raised are really not unique to gender identity and expression; they relate to every protected ground where rights butt up against each other perhaps, arguably, or somebody would contest that.
The other thing I would say is that human rights law develops based on a complaint system. You have to take the facts of the particular case as they come with the particular parties. What human rights legislation does at a higher level is to say that this kind of conduct is not acceptable; as government policy for what we consider to be human rights of people in Canada, this is not acceptable. Then courts and tribunals, on the facts of each individual case, will apply those protections.
[Translation]
Senator Dagenais: My question goes to Ms. Bauer. In your study, did you do a breakdown by province of the behaviour of people and companies towards transgender people?
[English]
Ms. Bauer: The data I've been focusing on is from the Trans PULSE Project and Trans PULSE was limited to the province of Ontario. That's what we have, and that wouldn't inform across provinces. We still don't have good data from a lot of provinces in Canada.
[Translation]
Senator Dagenais: Am I to understand from your answer that you did study the behaviour of people and companies towards transgender people?
[English]
Ms. Bauer: We weren't studying companies. We were studying individuals, 433 trans people in Ontario, 16 and older, nothing about companies. People were reporting experiences, some of which might have been in employment settings, for example, but we weren't looking at company policy or behaviour.
[Translation]
Senator Dagenais: As an example, when I was the President of the Association des policières et policiers provinciaux du Québec, one of our members advised us that he wanted to change his gender. As an association, we supported him; we spoke to his employer, the Sûreté du Québec, and we found him work that allowed him to make the transition.
It would perhaps be interesting to find out what companies are doing to help these people. I assume that making this transition in the workplace is not straightforward. It certainly was not for a police force, but, as an association, we helped the person.
[English]
Ms. Bauer: I'm glad to hear you supported that person; that's amazing. I know there are a lot of companies that have done very good work to develop explicit policies so they are prepared when an employee comes to them with that kind of issue.
Senator Pratte: One argument put forward by the opponents of Bill C-16 is a scenario where someone would refuse to address a transgender person by their chosen pronoun on, for instance, religious motives and for that reason would be found guilty of discrimination or harassment and eventually end up in jail. Is that a probable scenario?
Ms. O'Brien: The amendments to the Canadian Human Rights Act that are contemplated within Bill C-16 are not going to dictate that people must call somebody by a particular pronoun. Those discussions of pronouns have arisen in some of the academic contexts, and I'm sure my colleagues would agree, coming from an academic area, that these amendments are not going to hamper academic discussions or debates about sex and gender. Nothing in Bill C-16 compels such discussion.
What the amendment does is make explicit the prohibition against discriminatory practices or harassment or sexual harassment based on gender identity or gender expression.
We've seen the Supreme Court of Canada, as my friend Nicole pointed out, have a discussion about competing rights in the case of Vriend, where it was argued that homosexuality and religious freedoms were competing rights. The court found that the provincial legislation contained these internal mechanisms to balance those rival concerns, and they could likewise balance those rival concerns of expression, religion and pronouns.
That finding about the balancing that existed in the Vriend case equally applies here. The Canadian Human Rights Act operates in the same way such that no conferral of rights is absolute, and there are internal mechanisms that already exist within your legislation that balance those rival concerns. That internal mechanism provides for considerations of bona fide justifications that people might feel exist and provides for concerns about health, safety and cost that might limit accommodations in terms of the prohibited grounds.
Those mechanisms are found at section 15 of the existing Canadian Human Rights Act. They provide that where there's a bona fide occupational requirement in the workplace, the practice would not be considered discriminatory, or when we're talking about the accommodations, goods, services and facilities, where there's a bona fide justification, it would not be considered discriminatory. When we're talking about bona fide justifications, the legislation already has built-in mechanisms that require you to be able to establish that you cannot accommodate the individual, considering things like cost, health and safety.
Those concerns about bona fide justifications and undue hardship that may be caused in terms of other competing rights are already built into the legislation and have been subject to an abundance of legislative interpretation.
Senator Pratte: What are the probabilities of someone being accused of hate speech because of Bill C-16 being adopted?
Ms. O'Brien: I'm not a criminal lawyer, but as a lawyer, I would suspect that it would be very low.
Senator Pratte: Ms. Nussbaum, would you care to comment?
Ms. Nussbaum: Very briefly. 318, everyone who advocates or promotes genocide. So unless you're promoting genocide, you're not covered by that. Communicating statements in a public place, inciting hatred where such incitement is likely to lead to a breach of the peace, I'm not sure that pronouns get to that level. Communicating statements, other than in private conversation, wilfully promoting hatred against any identifiable group. Again, I'm not sure that that rises to that level, so no.
In terms of the pronoun issue, we've heard about non-binary people. What are called non-binary pronouns are actually gender-neutral pronouns, so they're not ascribing a gender to a person.
Senator Batters: Ms. O'Brien, did you support the previous bill, Bill C-279, that was in the previous Parliament that did not include gender expression as an identifiable group?
Ms. O'Brien: I'm not sure of the position of the CBA at that stage, I'm afraid. I'm not sure I was practising at that stage.
Senator Batters: Ms. Leclercq, did the CBA support Bill C-279?
Ms. Leclercq: One of the reasons I'm here is because I've been an activist all my life. I'm an IP lawyer, but I've been an old-timer transgender person. I've walked the walk.
Senator Batters: Do you know if the CBA supported Bill C-279?
Ms. Leclercq: Yes, we do. But with regard to the distinction to be made between gender identity —
Senator Batters: I have a few other questions. I wanted to know whether the CBA supported Bill C-279 or not.
Ms. Leclercq: I have no recollection.
Ms. Nussbaum: I am the past chair of the Canadian Bar Association's Sexual Orientation and Gender Identity Conference. We did in fact support the bill, and we did call for gender expression to be included, and we were opposed to definitions being introduced.
Senator Batters: Ms. O'Brien, because of the previous comments you made here at the committee, what about those provincial jurisdictions that don't include gender expression as an identifiable group? Do you think those particular provincial laws provide less protection to transgender individuals?
Ms. O'Brien: Again, I would say I'm not troubled by the inclusion of gender expression in this legislation. What I point to is the abundance of case law interpreting the particular definition and the scope of that prohibited ground throughout Canada.
Senator Batters: Could you answer my question? Do you think those provincial laws that do not include gender expression provide less protection to transgender individuals?
Ms. O'Brien: Yes.
Senator Batters: And what protections would not be offered?
Ms. O'Brien: I'm going to defer to some of my colleagues. In terms of —
Senator Batters: You made the statement earlier about the gender expression issue, so I'm wanting to hear your legal opinion from the CBA as to what protections would not be included in those provincial jurisdictions' laws?
Ms. O'Brien: You may not want to accept the answer, but my answer is that while other provinces' legislation may just include gender identity, I'm not troubled by the fact that in this legislation we want to include gender identity and gender expression. That will capture what is intended to be captured here.
Senator Batters: Are you saying that because you think that gender expression is basically already included in the term "gender identity''? Is that why you're making that distinction?
Ms. O'Brien: No. I'm saying that because the term "gender expression'' has been subjected to an abundance of case law that has reasonably interpreted it.
Senator Batters: Right. Prior to this bill coming into effect. Thank you.
Ms. O'Brien: Correct.
[Translation]
Senator Dupuis: My first question goes to Professor Bauer. Thank you all for being here today.
The report on the review of the Canadian Human Rights Act was drafted following extensive, Canada-wide consultations. It was the mandate of the committee at the time. I was on that committee, and during the general consultation, transgender people told us about the reality and the discrimination they were experiencing. Ms. Bauer, you did the research and, at the time, it must be said that people had to have a surgical transition in order to be able to present themselves as transgender. Today, we know that some jurisdictions no longer require that.
In your opinion, how has the medical research evolved — because physicians are still faced with these realities, after all — between the beginning of the century and the research you have conducted recently? Has the understanding of these matters evolved in the minds of physicians?
[English]
Ms. Bauer: I think we have made a lot of progress. I think the early research in medicine was very focused on surgery.
From our research, we know that even amongst the approximately quarter of trans people who say they've completed a medical transition, not everyone has these surgeries. Lots of people do not for a whole variety of reasons, and they certainly shouldn't feel compelled to, which is part of the reason for removing that from the qualifications for changing identity documents. No one should have to undergo forced sterilization and forced surgery.
With regard to medical research and informing care, we've made a lot of progress not only towards the research in that area but also to moving training into medical schools. For example, I'm in a medical school at Western, and we've introduced content into social medicine in year one. We've introduced basic hormonal care into endocrinology. We have standardized practice patients that the students work with who are trans.
The goal is to improve medicine to the point where doctors will all have basic familiarity so when the first trans patient walks in, it won't be a surprise, a basic competence with uncomplicated hormone care, and then of course, things that are more specialized will be handled by specialists.
We still have research to do. I'm leading a large national study that starts collecting data this summer on trans kids, trans youth — not really kids — referred for puberty blockers or for hormone treatment. We're going to gather data from nine clinics across Canada because we need to know more not just about their medical well-being but their social and family well-being as well.
Senator Omidvar: Thank you to all of you. I think this question is to any or all of the lawyers.
We heard yesterday about the unintended outcomes of expanding the Canadian human rights code in this way, that we would open the door to other new emerging rights-seeking groups. The example of trans racialism or fat phobia was put on the table, and I wonder if you could comment on this. Is it right for us to deny people rights today because of what may be coming up in the future? What's our history on this?
Ms. O'Brien: I would just point out in brief and let my colleagues take over from there that I think the slippery slope argument here has very little merit. Perhaps we could point to the fact that we're sitting here and we've had to try to get this legislation through quite a number of times, despite the fact we have the Supreme Court of Canada's comments in Vriend that Nicole put so eloquently this morning.
Senator Omidvar: In other words, you're not concerned?
Ms. O'Brien: I'm not concerned about a slippery slope.
Ms. Leclercq: Not only that, but I suppose it's important once again to stress the benefit that will — whatever problems we face in the future that may result are certainly counterbalanced by the benefit for an open member of the transgender community for the symbol and the signal that the adoption of this change will bring.
Senator Joyal: My question is first to the Canadian Bar Association; either of you might answer.
I am of the personal opinion that to compel somebody to go through physical surgery to change sex or to express the identity chosen by the person is, in my opinion, contrary to section 7 of the Charter.
Have you ever considered at the Canadian Bar Association fighting provincial legislation on that? I'm addressing my question to Ms. Leclercq because you know that in the Quebec legislation, it had that, and I thought that was a barbaric practice.
[Translation]
Ms. Leclercq: At the time when I was facing the problem, let's say that the question was never asked. So I followed the route that I was told to follow.
I would also like to say that, when we refer to legislation that allows groups to be identified, what is the beneficial effect of the symbol that represents? In other presentations in previous days, it was suggested that this is no more than a symbol, because the legislation adequately protects the right in question. But I feel that we are a society of symbols, starting with the flag, which is itself a symbol. All these symbols count.
I would like to remind you of the revelation I had the first time I dealt with the Civil Code. The first thing I checked was whether it was true that the code contained a section that allowed someone to change gender. That was at the beginning of the 1980s. Since then, it has always been a hope and a symbol for me, knowing that, indeed, that legal reality is available.
I feel that, when it becomes possible for this change to be made, the fact that a group will be identified, the fact of knowing that the protection will not only be there for an individual, but that it will also be possible to be part of a group, it will send a very strong signal.
As for the surgery, I can tell you that, in my case — and I know a lot of people who have had an operation — it was a maze with no way out, with the physicians' needs to live by their code of ethics on the one hand and the legal requirements on the other. I consulted the Bar; in the two-year transition period, they refused to let me practice under my new name. I had to practice under my previous name while wearing my woman's clothes. It was a real mess.
Still on the surgery, I might not be the best person to testify against surgery because, in my case, I feel that it was very beneficial. I am from the old school, but I completely respect newly trans people who decide not to go that route, or who will perhaps decide to do so later.
I can just talk about the reality within, because, basically, all we are is chemistry. Yet the chemistry is very important. When we come to see what is happening, to have that knowledge within ourselves, it is quite difficult to describe the reality to you, just as it is difficult to explain to you the profound compulsion that drives people, when they are still very young, to begin to ask questions about their own identity.
In my day, there were no social media networks, no way of being able to deal with this thing. In addition, we were living under a cloak of morality, the result of which was that it was seen as completely unacceptable. So you fought it, just like homosexuals were doing at the time, up to the point when you came up against a situation that became impossible. Then you jumped. That compulsion is the something that all trans people feel to various degrees; it is the something that leads them to realize that they are a soul that has been forced into the wrong body. Each experiences the reality, and it can fluctuate. I feel that we have to celebrate the fact that we live in a society where the problem is evolving a lot: young people are much more accepting of the reality. Everyone here is older than 40, but, with the younger generations, you will see how extraordinarily quickly, and to what extent, people's thinking will evolve.
[English]
Senator Pate: Thank you to all of you witnesses. Ms. Bauer, a few weeks ago I was at a conference where Dr. Lawson spoke about some of the work she has been doing at CHEO. You mentioned you were going to be doing research. I'm curious whether you're seeing any of the trends that she described. I asked her what her understanding was of why the changes were happening, but she said that they've now seen a spike over the past two years, about 75 per cent of young initially sex identified as girls trans boys. I'm not sure if you're seeing the same or if you have any ideas. Not that it's particularly relevant to the legislation, I was just very interested. That's sort of what I would have expected 10 years ago, and we didn't see it, so I'm just curious to know your perspective.
Ms. Bauer: Dr. Margaret Lawson is my co-principal investigator on the study. We start data collection this summer, but we have analyzed data from our nine clinics on referrals over the last decade. What we've seen, if I showed you a graph, is an exponential spike in referrals of youth. I think that's an amazing thing. I don't think that there are necessarily more trans youths, but people are putting a name to it at a younger age. I think the Internet has helped a lot.
These are people who, in the past, might have gone 10 or 20 years thinking they were the only person in the world like themselves, who are now able to do that at a younger age, and sometimes people are able to socially transition at even younger ages.
I know they are seeing a shift in the balance based on assigned sex at the clinics, but in that group of kids that come into clinics, there are a lot of factors that impact that. They are not necessarily representative of the whole group of trans youth. At the younger ages, they are more likely to have parental support to get in the door; older youths sometimes come in without parental support. I don't think we can take what we see in the clinic and say that group represents trans youth overall, because most trans youths never make it into the clinics.
Senator Pate: Are the trends you are both seeing across clinics or just at CHEO?
Ms. Bauer: It's across clinics. Talking to my colleagues internationally, it's internationally as well, even in countries like the Netherlands, where they were an early leader in terms of clinical care for trans youth.
Senator Mitchell: Back to definitions, I want to clarify this. It's interesting that when Bill C-279 was over there, in order to get support from Conservative MPs, they moved a motion to define gender identity. When it came over here, Senator Plett moved a motion to take the definition out. Clearly there's ambivalence.
But the argument is that you don't need to do it, first, because no other element is defined and, second, because there are all kinds of on-the-ground, real-time cases before tribunals and before courts across the country where it has been defined. Is that true?
[Translation]
Ms. Leclerq: I would like to point out that the bill does not refer to "gender identity and gender expression'' but rather "gender identity or expression.''
[English]
My submission is that it is one concept, just like a cup. You have an inside and you have an outside, but you cannot separate one from the other. It's just two aspects of the same thing. That's my perception of it. I don't know whether the tribunal will go that way.
With regard to the absence of a definition, I suppose it's not the only law that will require the definition of tribunals, but that's what they are doing.
Senator Mitchell: Excellent. Thank you.
The Chair: Thank you all, witnesses, for being here today and assisting us with our deliberations. It is much appreciated.
(The committee adjourned.)