Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 28 - Evidence - May 10, 2017
OTTAWA, Wednesday, May 10, 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 4:17 p.m. to give consideration to
Senator Bob Runciman (Chair) in the chair.
The Chair: Good afternoon and welcome, colleagues, invited guests
and members of the general public who are following today's proceedings of
the Standing Senate Committee on Legal and Constitutional Affairs.
We are continuing 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 Gad Saad, Professor and Chair in
Evolutionary Behavioural Sciences and Darwinian Consumption, Concordia
University; and Theryn Meyer. Thank you for being with us today.
Professor, I believe you are going to lead off. The floor is yours, sir.
Gad Saad, Professor and Chair in Evolutionary Behavioural Sciences and
Darwinian Consumption, Concordia University, as an individual: Thank you
very much, Mr. Chair.
I have spent 20-plus years working at the nexus of evolutionary
psychology and the behavioural sciences, a central feature of which is to
explore how evolutionary and biological principles shape our human nature.
At the root of this grand objective is the profoundly obvious reality that
humans are a sexually reproducing, sexually dimorphic species, consisting of
reproductively viable males and females. This in no way rejects the equally
obvious fact that the rich human tapestry includes other personhoods, such
as intersexed and transgendered individuals.
Following a 2014 lecture I delivered at Wellesley College on the thought
police, I had a conversation with a student who argued passionately that
professors should poll their students at the start of class about their
gender identities. While most might have construed her position as
outlandish back then, some now consider it too tame.
Take the Office of BGLTQ Student Life at Harvard University which
recently distributed a flyer to combat transphobia, where it was stated that
one's gender identity and gender expression could change daily and that
"fixed binaries and biological essentialism'' constitute "transphobic
misinformation'' and that is tantamount to "systemic violence.''
Was the Wellesley student transphobic since she did not potentially
consider the daily fluidity of one's gender identity? What about
minute-to-minute changes? Should professors poll their students every tenth
minute of every lecture to find out if their gender identities have changed
since last asked? Should academics no longer design surveys wherein a
participant's biological sex is measured as a binary variable? Would this be
transphobic systemic violence since it perpetuates fixed binaries and
Facebook and New York City allow 50-plus and 31 genders respectively as
part of one's profile. Should professors develop survey that recognize all
of these genders? Would it be systemically violent to not do so?
Should evolutionists no longer explain how sexual selection works,
namely, the fundamental process by which sex differences evolve? This
mechanism recognizes two sexes and hence it might "disenfranchise'' those
who reject "fixed binaries and biological essentialism.''
Bottom line: Foundational tenets of evolution might be construed as legal
transgressions under Bill C-16, so evolution itself might be a
Ongoing governmental efforts are pushing for a gender-neutral society to
cater to an extraordinarily small number of non-binary or non-gendered
people who feel marginalized at having to provide their biological sex as
part of their profiles. This is the tyranny of the minority. Ninety-nine per
cent of the population should acquiesce to having a default feature of their
personhood erased because a few individuals might be inconvenienced by it.
The slippery slope of totalitarian lunacy awaits us. Some are now
proposing that racial categories constitute "biological essentialism'' and
instead we should respect racial self-identities. This is known as
transracialism, as per Rachel Dolezal who was born White but who
self-identifies as Black.
How long before the government tables legislation to combat bigotry
against the transracial?
What about fat phobia? There are many more Canadians who are overweight
than transgendered, and the collective abuse that they experience is
sizeable. Should the government legislate such hate? The road to hell is
indeed paved with good intentions.
As someone who escaped religious persecution in Lebanon and whose parents
were kidnapped in Beirut, I fully support the protection of all individuals
from institutional discrimination. That said, I am weary of the ethos of
victimhood that has parasitized our culture. The operative motto is not, "I
think therefore I am,'' but "I am a victim therefore I am.'' I refer to this
condition as Collective Munchausen, namely the pathological quest for
sympathy and empathy by proclaiming victim status using identity politics
and intersectionality. People have the right to live as equal citizens under
the law. They do not have the right to demand that their identities be
coddled and celebrated lest they might otherwise get offended.
The Chair: Thank you.
Ms. Meyer, please.
Theryn Meyer, as an individual: My name is Theryn Meyer. I provide
cultural commentary in written format and on YouTube with a focus on
contemporary transgender issues.
As a trans woman myself, I take advantage of the freedom of speech that
this amazing country has granted me to argue for tolerance and understanding
for my fellow man, and to explore how best to negotiate integration of my
transgender brothers and sisters into society. I don't believe there to be
any other sustainable effective method to achieving these goals other than
to speak up as individuals and make the case for it, which is exactly why I
sit in front of you today.
"An Act to amend the Human Rights Act and Criminal Code'' affects the
very process by which individual voices inspire change in a democratic
society, and, in turn, Bill C-16 ultimately works against the very group it
has been advertised to protect.
Before you accept the bill's purported purpose of equal protection for
trans and gender non-conforming people under the law, consider the
statements made by the sponsor of the bill, the Minister of Justice and
Attorney General of Canada, Jody Wilson-Raybould. After conceding that the
open-endedness of the term "identifiable group'' within the Criminal Code
already protects trans people under the law, Minister Wilson-Raybould admits
that the purpose of her proposed bill is not so much to legally enshrine the
protection of trans people but instead to send a clear message:
With this Bill, we say unequivocally that Canada can do better. . . .
we say loudly and clearly that it is time to move beyond mere tolerance
of trans people. It is time for their full acceptance and inclusion . .
. . . it would promote inclusion and respect for trans [people] . . .
Equal rights for trans persons should not be hidden, but plain for
all to see.
This does not sound like equal protection under the law. This sounds like
Canada's most influential lawyer and her cronies playing the role of social
justice activists with their political power.
In the final quote from Minister Wilson-Raybould:
Some of the words and concepts used in the discussion on Bill C-16
may not be familiar to all Canadians.
That is another unequivocal confirmation that the bill is not attempting
to amend the law in response to a cultural shift, as it should work in a
democratic society, but that the bill seeks instead to work in the reverse,
using the force of law to intimidate Canadians and then branding it as
promoting social change.
Besides being anti-democratic and anti-free speech in nature, the idea
that Bill C-16 will inspire a better Canada for trans people is a dangerous
delusion as it will do the exact opposite.
The definitions for "gender identity'' and "gender expression'' that the
bill's supporters have proposed — one as something subjective and
unverifiable, existing purely in the mind, and the other as being nothing
more than fashion sense — are sure to breed a climate of hypersensitivity
where people feel they need to walk on egg shells or even outright avoid
trans people in fear of prosecution. Because of this, trans and gender
non-conforming people will likely lose job opportunities as employers will
avoid employing what would become a serious legal liability for them. Bill
C- 16 risks perpetuating the already low economic standing of trans people.
The bill will also send the impression to Canadians that trans people are
too weak to defend and make the case for their identities in a free society
and that the only way for us to exist amongst others is to restrict by
draconian law the freedoms of others. By turning us into a source of
hypersensitivity, a legal liability and a group whose existence is
contingent on the undue restriction of everyone else's freedom, Bill C-16 is
a sure way to engender resentment, intolerance and true transphobia that
will derail the process of acceptance and integration of trans people and
keep us relegated to the margins of society.
If you truly care about trans and gender non-conforming people and our
lives and livelihood, you will vote against Bill C-16.
The Chair: Thank you both. We'll move to questions now, beginning
with the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you for your presentations.
The overriding question that comes to mind after listening to your
presentations is this: Every Canadian province and territory, except one, I
think, has in law in their human rights codes "gender identity'' and in most
of them "gender expression'' as well. Others have "gender,'' and this has
worked very well.
I read case law on a daily basis. I have done it for 50 years, and I
can't identify a single case in which that legislation has not worked to
So how do you answer that question? This is not something new. This is
something that has been expected for many years because it forms part of a
much larger area of law, and that is at the provincial and territorial
Mr. Saad: I can't speak to the legal issues. What I really care to
focus on is, as a working scientist and as a professor who specializes in
evolutionary behavioural sciences, that there are endless cases where both
in the pursuit of my pedagogy, where I'm teaching students, or in the
pursuit of my research, I would be skirting with legal transgressions of
Bill C-16 if this bill were to pass.
So I can't really speak about the legal ramifications. All I can say is
that I have seen what happened at the University of Toronto to my good
friend Jordan Peterson, who I think will be testifying next week, and I can
assure you that that would only be the tip of the spear.
So we have to be careful on the one hand, ensuring, of course, that all
people should live free of hate and discrimination, but how do you
materialize these rights? If literally I were to walk into class and explain
the fundamental mechanism of evolution, which is sexual selection and
natural selection, that itself would be considered transphobic. According to
Harvard University, biological essentialism and fixed binaries are a form of
systemic violence, to repeat what I said. So can I go into my class and
teach evolutionary theory, or would I be engaging in systemic violence
against the transgendered? This is something that, as a professor, concerns
Senator Baker: I still don't understand where your logic lies,
because we already have that law. Education, what is said in our
universities and schools, comes under the human rights codes of the
provinces. In the human rights codes of the provinces, gender identity is
there; gender expression is there.
Yes, there is an addition to the Criminal Code, but we have the
provisions in the Criminal Code that were clearly identified by the Supreme
Court of Canada in Keegstra in 1990. So I can't see where your
concern lies and has any justification in our laws, as they have been
applied today, which cover these very expressions.
Mr. Saad: Again, I can't speak about the legal issues.
Harvard University, a rather prestigious university, is arguing that to
argue that something is due to biological essentialism is a form of
transphobia. Well, my whole field of evolutionary biology and evolutionary
psychology would then be committing that systemic violence. So what would I
do? What would you suggest for me to do when I walk into class next fall and
I wish to teach about sexual selection, which is the mechanism that explains
how traits and behaviours evolve across the two sexes? Would that be
transphobic? Would that be something I'm allowed to do or not? I don't know.
I can't speak to the legality. I will defer to your legal expertise.
Could the government place me under a legal transgression if this were to
Senator Baker: No.
Senator Mitchell: No.
Mr. Saad: So Harvard would be wrong, then.
Senator Plett: I am glad we have a lot of judges here who will sit
on the bench and rule on this after.
To both of our guests, thank you very much for being here. Senator Baker
has been wanting to get into the legal weeds here. We have lawyers coming
next week, so I will leave the legal questions for them. I am sure they will
have good questions.
I will focus my questions more on the science and ideology surrounding
this legislation and the possible implications, and I would like you to both
take note of these questions and answer them.
You have already talked about Jordan Peterson. Jordan Peterson was TV's
"The Agenda'' with Steve Paikin, among other academics, where they were
discussing this bill.
Theryn, I think you were part of that great discussion.
A professor of transgenderism studies from the University of Toronto
stated in that debate: "There is no such a thing as biological sex.''
He said for the sake of time, he didn't want to unpack this at length for
the viewers. However, he said this was not his opinion. He said that for 50
years, science has proven this.
I would like to get both of your comments on this.
Secondly, as an academic, Dr. Saad — and, Theryn, if you have any
comments — do you find it troubling that Jordan Peterson received two
warning letters from the university because of his perspective on Bill C-16,
particularly on pronouns, but that on this comment, "no such thing a as
biological sex,'' the same university, which houses a biology department, is
Ms. Meyer: Yes, it troubles me very much. The reason I am here is
because I have witnessed first-hand the unprecedented ideological
motivations behind the terms being used, the way they're used and the way
they are defined.
I'm not sure what it means that the case law in these provinces has
worked just fine and in whose favour they have worked just fine, because I
am aware of the ideological motivations, unprecedented compared to any of
the other listed groups, in these pieces of law.
I think that putting it into federal legislation is a step in the wrong
direction. I don't really see why we have to make the problem worse, because
it has worked quite well.
I'm not even sure what that means, because I have spoken to lawyers who
say the exact opposite, that it's dangerous, that it's draconian and that
people have suffered. Even if they didn't get jail time or fined, the fact
that the whole process can occur is a problem, because that is, in itself,
Mr. Saad: To speak to Dr. Peterson's debacle, I gave a lecture at
the Manning Centre Conference a few months ago where I simply read
first-hand testimonies that I received from students, from professors and
from the parents of students where they share with me the stifling
environment that they are experiencing at universities, where they are
afraid to utter a single syllable out of place lest somebody might be
If I were to read these testimonies here before you in this committee,
you would think that these were testimonies coming out of North Korea. As
somebody who comes from the Middle East, who has probably experienced more
persecution than most of the people put together in this room, I don't want
our universities and our places of thought to be so stifled.
That which Jordan Peterson experienced would have been something that
none of us could have envisioned a few years, and yet now we are seeing it.
I have many colleagues who write to me saying, "Thank God there is somebody
like you who has,'' forgive the term, "the testicular fortitude to speak
out, because we don't have it, and we are terrified of our students and
colleagues.'' That kind of environment is unbecoming of Canada. I should
know what I speak of, having come from a place where these freedoms are not
readily available to us.
Senator Jaffer: Thank you to both of you were being here. I've
listened to you very carefully.
I have a question for you, professor. You and I probably come from the
same backgrounds. When it comes to my race, as a person of colour, if
somebody discriminates against me, I feel empowered in this country because
I have codes, both provincial and federal. If I'm not given a job because of
my colour, if I cannot rent a place because of my colour, I'm protected.
It's a natural step that if people come in front of us and say that
because they are transgender, they are finding it difficult to get a job or
to rent a place and they need the protection of the human rights code, and
I, as a parliamentarian, know I have that protection, how can I deny that
protection to them?
Mr. Saad: As I said, I strongly support that we all live free of
discrimination, hate and bigotry. My concerns are precisely the ones that
are pushed to the envelope, like the examples that I gave in my prepared
In the case of Jordan Peterson, he wasn't arguing, "I'm a landlord and I
won't let you in my apartment because you're transgendered.'' As a tenured
professor at the University of Toronto, he almost got fired because he
refused to acquiesce to using new pronouns: "zir,'' "xe'' and "their'' in
So the examples I'm offering you, those examples at the boundary, where
if I walk into class and teach about evolution I might be transgressing Bill
C-16, that's what interests me.
You and I are in agreement that transgendered people should not be
discriminated against in all of the ways that you and I would agree, but the
devil is in the details. My whole field of evolutionary biology and
evolutionary psychology would be one gargantuan transgression of Bill C-16
as per the examples that I read for you, and that's something we need to
Senator Jaffer: What you brought up is very important. It is a
dialogue we should have. Free speech is very important. Hopefully we can
continue with this dialogue, but in front of us here is to add to the human
rights code and also to the Criminal Code to protect rights of transgendered
people, the basic rights that you and I both enjoy, and that's what this
bill is about. You and I both agree that this protection should be there,
Mr. Saad: To those basic rights. But if you're going to ask me to
poll students every 10 minutes to find out if their gender identity has
Senator Jaffer: I didn't know you do that.
Mr. Saad: Harvard thinks so.
Senator Jaffer: We're not at Harvard. This is Canada.
Mr. Saad: The student at Wellesley thought so. What happens when
the student comes along and says, "Look, I will expect you to follow my
gender fluctuations throughout the semester. Today I'd like to be called
'he' and tomorrow 'she.''' It sounds as though I'm being facetious but I'm
not. These are recorded instances, so I'm just saying that we have to be
Senator Jaffer: It's important you raise that and I appreciate it.
Mr. Saad: Thank you.
Ms. Meyer: I would like to add that the laws that the bill seeks
to amend already protect trans people under the law, because the term
"identifiable group'' applies to trans people. We are very identifiable. And
it has been used before: these provincial laws included gender identity and
gender expression. Trans people have used them when they felt they were
discriminated against. They have used "identifiable group'' for that.
I understand that it's a symbolic gesture. It's not pragmatic. This is
symbolic. It's supposed to say something about Canada. I get that. But it's
like nuking an inconvenient beaver dam. You're solving a fairly small
problem, meaning where you've done a symbolical gesture that trans people
should be accepted in the law, but by broadening it vastly, it's not
Senator Dagenais: Thank you to our witnesses. Ms. Meyer, my
question is for you. We know the legislation is not perfect, so we are
relying on the accounts and feedback we are hearing to make improvements. In
your view, what impact would it have if this bill were to set aside or
disregard certain elements?
Ms. Meyer: Yes, I agree that the legislation isn't perfect and
there is a lot of reason to keep definitions somewhat open-ended so that
they can be interpreted without undue restriction in real-life cases.
I would say that there is a possibility to amend this bill, change some
of the terminology used or maybe commit to more rigorously defined terms,
but I think that would have to mean that we should maybe start from square
Instead of "gender identity'' and "gender expression,'' I see something
like "transsexual status,'' because at least that can be corroborated by a
doctor, and at least you have that. I mean, that's a good start. It's not
just something that exists in your mind and that you can change at a whim.
Senator Dupuis: That answers my question. I was going to ask you
whether the term "transsexual'' or "transgender'' would be more acceptable.
I now gather that the answer is yes.
Ms. Meyer: Yes, that's a good start. I'll have to see what the
conversation is around that, but that's definitely a step in the right
Senator Dupuis: My next question is for Professor Saad. You teach
at Concordia University. Have you ever been subject to policies that
restrict freedom of conscience in your teaching, or any sanctions or
warnings, whether from the university, itself, the professors association or
your colleagues individually? That is my first question.
Second, would you be able to provide us with some reference material on
this issue? It could be your work or that of other researchers you know, to
help us better understand the issue.
Mr. Saad: Regarding the first question, I must say that generally
Concordia has been a very welcoming place, but recently I've started feeling
some hints of problems that might arise.
For example, I was hoping to organize a freedom summit, and I announced
it on my very popular channel, where I would invite professors who are at
the forefront of fighting for freedom of speech. An administrator came to
me. I'm a chaired professor — I have a university-wide chair — and he said
that I can't use this money to organize this meeting because it doesn't
correspond to my scientific research. While the university broadly supports
freedom of speech, my organizing a freedom summit did not fit within the
mandate of my chair. I found that a bit suspicious.
The other thing that I would say is that I used to consistently be on the
front pages of the media department at Concordia, and recently it seems as
though they have misplaced my profile. For example, when I was coming to
testify here in front of the Senate and later to speak in front of
parliamentarians about some of my research, no one tweeted this.
In the past, they would certainly have been at the forefront of promoting
my work. It seems as though while they haven't systemically sought to limit
my freedom of speech, it seems I might be angering some folks that might not
be happy with my outspokenness. That speaks to your first question.
Regarding your second question, about some of the research I do, I
founded a discipline called evolutionary consumption, in which I apply
evolutionary biology and evolutionary psychology to study consumer
behaviour. I study things like how hormones affect men's and women's
behaviours. I study a wide range of sex differences in mating behaviour,
gift-giving behaviour and in shopping behaviour.
My work is at the intersection of biology, psychology and consumer
behaviour. It's in that capacity, as an evolutionary behavioural scientist,
that I'm here testifying.
Senator Boisvenu: I would like to thank both the witnesses for
being here today.
Ms. Meyer, I remain somewhat ambivalent about this bill. I think a piece
of legislation should rectify a situation where there is a real problem. I
was certain that Canada's laws adequately protected the rights of
transgender individuals. Your remarks are quite interesting. This bill is
not for university professors or parliamentarians but, rather, for people
like you, who are actually dealing with this issue.
My first question is this. Since the legislation gives judges broad
discretion over how they interpret your rights, do you think this bill could
create false hope for people in your situation?
Ms. Meyer: Yes, I do, and I did make statements as to how I
believe that this bill will hurt trans people more. I think it just takes a
little bit of conscientious thought and a little bit of thinking it through
in the long run. I don't see this actually helping.
And yes, of course I've experienced discrimination because I'm trans, but
I'm also speaking as someone who came from South Africa. This is an amazing
country, and I worry that the freedoms that I have been given are actually
being taken away by this bill, specifically my freedom of speech.
Senator Boisvenu: How is this bill a barrier or a step back for
you, as compared with the current legislation? I would like you to make that
Ms. Meyer: A barrier or a step back?
Senator Boisvenu: Yes.
Ms. Meyer: As I said, it won't protect trans and gender
non-conforming people any more or any less, but it will broaden the law to a
point where, as I said, my freedom of speech as a trans person and
Canadians' freedom of speech will be set back in a way that concerns me.
I'm also speaking, as I said, as someone who has gone to university, who
has interacted with the kind of people who talk about things like gender
identity and gender expression and define it in the way that Minister
Wilson-Raybould, the Ontario Human Rights Commission and proponents of this
bill have defined these terms.
It worries me because, as I said, gender expression becomes nothing more
than fashion sense. So someone who feels discriminated against because they
look too alternative could say, "Well, me having tattoos and piercings is
actually part of my gender expression, so if you don't want to employ me in
a nice restaurant, you're discriminating against me based on my gender
expression.'' As I said, it's just too broad.
Senator Pate: Thank you very much. I think you may have answered
when Senator Dupuis asked you the question, so thank you very much to both
of you for your testimony.
I was listening carefully, Ms. Meyer, when you were speaking to the
issues you were concerned about. At first I thought one of the issues might
be the penalty provisions, but you've indicated it's predominantly the
definition. Did you look at the penalty provisions as well?
Ms. Meyer: Yes, I did.
My main concern is the terms being used, the nomenclature behind it and
the language that has been proposed in the definitions.
I'm not in principle against some symbolic gesture to protect trans and
gender non-conforming people, but it needs to be something that doesn't
compromise the law and our freedoms as much as this could. As I've spoken,
something like "transsexual status'' is a lot more verifiable by a third
Senator Sinclair: Professor Saad, I listened carefully to your
explanation about your professional expertise in the area of the research
that you do, and I don't see it connected to this issue in the same way that
maybe you do. Your presentation, quite frankly, was primarily on the issue
of political correctness and limitations on freedom of expression, as I
understood it, so I begin my question with you being aware of that.
I was thinking as I was listening to what you were saying that you're
very strong on ensuring that one's freedom of expression is not limited by
laws such as this, and yet you didn't express any concern, from what I could
gather, on the issue of the discrimination that will occur and is occurring
with regard to employment, accommodation, housing, military benefits,
pension benefits, all of the other things that trans people will not be
receiving if laws preventing that discrimination from occurring are not put
in place. Are you not concerned about preventing that discrimination?
Mr. Saad: I'm fully concerned, as I conceded to the senator
earlier. I'm sorry, I think it was Senator Jaffer. And she conceded that we
seemed to be in agreement that we have to protect transgender people from
exactly the cases that you're talking about.
But that's not the world I live in. I'm not a landlord who may or may not
discriminate against a transgendered person. I'm a professor who does
research on sex differences. I'm a professor who applies evolutionary
biology and evolutionary psychology in my work and in my teaching.
Therefore, it's not a question of just political correctness.
If I get up in front of a class and talk about how there are evolutionary
pressures that result in sexual differences between males and females, could
somebody who is in the class and is transgendered argue, "You did not
incorporate my personhood in your lecture and, as such, I felt
disenfranchised and marginalized and therefore you're engaging in some sort
of bias''? What if one of my students, as part of their research project,
writes as one of the questions, "Are you male or female?'' Would that be a
form of systemic violence against the transgendered because we didn't
include 31 genders?
This is not facetiousness. These are real, concrete examples as per what
Jordan Peterson went through.
So I would like to receive some assurances as to what extent this bill
goes. How far does it go? I don't have the legal training that many of the
folks here do, so I can't speak to that. But in reading the bill, I could
see many places where my simply getting up in front of a class would
constitute one big transgression, and I'm worried about that.
Senator Sinclair: Thank you.
Senator Batters: Thank you very much to both of you for coming
Ms. Meyer, we had mothers of transgender children here last week, and
they talked about the terrible bullying their children had endured. We have
been told that this policy and this bill needs to be enacted because, among
other things, it will help protect these children from bullying and because
suicide rates are high among the transgender community.
Given that similar legislation has existed in many provinces now for many
years — 2012 in Ontario — why has this failed to stop the bullying,
discrimination and negative outcomes and, for example, help to reduce the
suicide rates that we're hearing about? Do you think that introducing a bill
like this federally will change those outcomes?
Ms. Meyer: Usually the people who bully trans kids are other kids.
I was bullied. I wouldn't want people who bullied me being charged with a
hate crime or having to go to a human rights tribunal. I don't believe
legislation like we're talking about here has anything to do with that.
In terms of suicide rates, I think people are inferring a causation where
there is, at best, a correlation. A lot of trans people suffer from gender
dysphoria, which in itself is a diagnosable mental illness. That has to be
taken into account, the fact that a lot of trans people have an actual
mental illness. You can't just say, "Well, trans kids at school are being
bullied; therefore, enact legislation that broadens the law so much that all
of our freedom of speech is completely jettisoned.'' I would have to see
some more concrete evidence as to causation.
Senator Batters: Thank you.
As a trans woman who is opposed to this particular bill, what has been
the feedback? I would imagine you have received some negative feedback in
your own trans community because of the position you have publicly
Ms. Meyer: I have a hard time understanding the idea of a "trans
community.'' It's a very odd kind of thing to link a bunch of people
I have spoken to mothers of trans kids. In fact, one of them spoke here.
I forget her name, but we spoke about it and I shared with her my concerns.
She seemed to understand where I came from.
I haven't received too much hate mail.
Senator Batters: That's good.
Ms. Meyer: I guess that's the answer.
Senator Batters: Thank you very much for coming.
Senator Joyal: Thank you for your contributions. Sometimes you
have to go to the other extreme to understand where the median ground lies.
When again I read Bill C-16, which you have asked us to vote against, to
use the words of Ms. Meyer's concluding remarks, Bill C-16 is essentially to
prevent promoting genocide of transgender people. You're telling me today
that I should vote against preventing somebody from advocating killing a
person, all the people who happen to declare themselves transgender. I tell
you that I have a problem with that.
Transgender people are human, and I think any human being advocating the
killing of another one because that person has identified as gay or not gay
or heterosexual or transgender should be prevented. This is about genocide.
Read section 318.
So I have some problems reconciling, putting together the value of a
human life with the right to life of that person because it is a human
person and that person declares themselves of one sex or another or whatever
sex. This bill says you have to protect the life of that person, whatever
the identity or the claimed identity of that person. You're asking me to
vote against this.
I have a moral problem with your request today, at least in relation to
that section of the bill. It's section 3 of the bill.
This is that the bill asks, Professor Saad. You come from Lebanon. I've
seen that country being torn down on religious grounds, less serious causes
of killing somebody than genocide.
I have a moral problem when somebody asks me to accept that we would
promote genocide of a transgender person only on the basis that this person
claims to be transgender. If I advocate the genocide of gay people, I would
be prevented from doing that, but to do that for the transgendered would be
Where is the value of a human life in relation to your position? I have
some problem with that. I can understand that there are practical problems
with how we identify the right, the left, the middle and so forth. I totally
agree with you; we can discuss that. But on the very principle of this bill,
to advocate the genocide of transgender people, that's what this bill
The Chair: I think we owe the witnesses an opportunity to respond.
Senator Joyal: I'm sorry to get carried away by your position.
Mr. Saad: Perhaps I read the bill too late at night and I was
tired, but I didn't get the feeling that it only dealt with genocide. If it
dealt only with genocide, I would probably be in a better position to argue
for that protection since I come from Lebanon and am a Jewish person. So I
probably know much more about religious persecution than you do.
I didn't get the feeling that this bill was only about genocide. When
people were trying to get Jordan Peterson fired from the University of
Toronto as a highly esteemed psychologist, it's not because he was arguing
for the genocide of transgendered people. It's because he argued, "I don't
wish to have someone impose upon me the pronoun by which I should be
I gave you numerous other examples whereby, in my own understanding of
the bill, I would be in transgression of that bill because I would be
exhibiting bias towards the transgendered. By arguing, for example, for sex
differences when it comes to mating behaviour and not recognizing the
panoply of other personhoods, I would be engaging in systemic violence.
So I don't need to be lectured about the importance of genocide. No
reasonable person would support such a possibility. But I'm not here to
argue for genocide; I'm here to argue about the details: the details that
got Jordan Peterson into hot water and would likely get me into hot water.
Ms. Meyer: I would like to add that Bill C-16 is not just about
genocide and the idea that we need to add this because someone may advocate
genocide toward trans people. First, "transgender'' or even "transsexual,''
none of those are mentioned in the bill. It's "gender identity'' and "gender
expression.'' I've already made very clear why I don't like those terms.
Where are we going to stop? Should we include the weight of people?
Should we include the fashion sense of people, which we already will with
gender expression? Where will we draw the line? I can divide the world into
as many subgroups and identities as I want and then advocate for genocide
towards one of them — people who wear teal.
Senator Omidvar: I'm struggling with which question to ask, and
I'm going to try to take it in a different direction.
One of you said that gender expression and identity is in the mind and
that you can't regulate and codify what's in the mind.
Well, I would say that religion is in the heart, in the spirit, in the
mind, and yet we provide protection to people. You've spoken about religious
persecution. We provide protection to people for the practice of their
I'm having a hard time figuring out this notion that human rights are
only to be expressed in expressions of tangible identity. You mentioned
transsexuals; you can get it checked, verified, validated with a doctor. I'm
wondering what your response to my trouble with this position is.
Ms. Meyer: I don't believe gender identity is something that
exists only in the mind. I'm saying the term that has been defined by the
Ontario Human Rights Code, which was set as precedent by Minister
Wilson-Raybould, who is the sponsor of this bill, as something that exists
only in the human mind. Not in so many words, but she said it's one's
subjective sense of being a man or woman, both or neither. That is
internally contradictory. It is vastly broad.
Once again, at least people congregate as a religion. They pray. There
are churches and mosques. It is not something that exists purely in the
mind. Maybe something like spirituality does. So I don't think that they are
necessarily comparable in the way that gender identity thus far has been
Senator Omidvar: I want to ask you a question about this concern
that both of you have, but I think Ms. Meyer more so, around rights creep.
Today gender expression; tomorrow people who wear teal.
The history of human rights in this country, which you have come to and
enjoy the freedoms of, as I have, has been a history of expansion of human
rights, first of women. When I came, it was impossible to think that gays
would be protected under the human rights code, and, yes, they are, and the
word has not gone ballistic. Then it went on and on.
I wonder if you can comment on what I would see as the civil and
civilized expansion of human rights under the Canadian Human Rights Act with
your notion of limitations on it. Can you project that one day there will be
other identities? Can you limit that today?
Ms. Meyer: I'm sorry; I'm not sure I understand the question. But
I will answer in the way that I think.
I'm for protecting trans people, even if it's just symbolic, even if we
already protect trans people. I'm for that. But there needs to be some
prudence and conscientiousness, as I said, and this bill does not do that.
In the past, in history, it has always been a push-pull between liberals
and conservatives so that we move forward without falling off of the cliff.
Mr. Saad: I think that in my opening remarks, towards the end, I
mentioned two cases that speak to your question. I mentioned transracial
people who proclaim, "Even though I am White, I self-identify as Black.''
That's transracialism. It's a real thing.
I also give the example of so-called fat-phobia. A much greater number of
Canadians are overweight, and if we were to collectively measure the pain
they experience in terms of daily bigotry and discrimination they face, you
will get bigger bang for the buck in terms of reducing discrimination if you
pass legislation against fat-phobic people. Would that be something we
The Chair: We'll have to move on.
Senator Mitchell: I'd like to address Mr. Saad's answer that a
number of times has touched on Mr. Peterson's concern — the points made that
his job was threatened. He makes that point. That may be the case and no
one's job should be threatened.
It's interesting that somebody in your position and his position have
tenure. He has resources and he has stature with which he has defended his
But trans people lose their jobs, don't get jobs, and far, far worse, all
the time, face violent discrimination and continual harassment. They don't
have often have tenure, resources and they don't often have stature.
So why is it that you can't understand somehow that all Bill C-16 does,
without in any way threatening you and all the advantages that you have in
our society, is even the playing field by giving some protections and
acceptance to one of the most discriminated against and vulnerable groups of
people in our society? Isn't it just quintessentially Canadian that we
should extend that reach of warmth, embrace and protection to people who
desperately need it?
Mr. Saad: If the bill were written in a way that does exactly what
you're saying and nothing else and that it protects against the grey zone
areas I spoke of, it would be a no-brainer for me to support it.
As I mentioned in my opening statement, given my personal history, few
people are in a better position to argue for why everyone should be
protected irrespective of their personhood. So you're preaching to the
I'm here to simply serve as the canary in the coal mine, or whatever the
expression is, to say that there are details that we have to be careful
about, and I share with you my details as a professor. It has nothing to do
with me being tenured or privileged. It has to do with the very real
possibility that someone could come along and say, "The way you're teaching
your course is marginalizing me; change it or else you're biased.''
Senator Mitchell: A lot of what you argue in defence of your
position is extremely hypothetical. But we have a hypothetical that has been
tested. We have a hypothesis, in your case, that has been directly tested.
You are saying that your course will be or could be declared transphobic if
this bill is passed, but your course is under Quebec legislation. Quebec
legislation has had gender identification protected for a number of years
under section 10 of the Quebec Charter, and it has never happened: You're
still teaching that course and no one has, in an official way, accused you
of being transphobic.
So why would it be that Bill C-16, which won't at all cover the
jurisdiction where you teach, would make your case that somehow it's going
to result in your course being declared transphobic? You keep repeating that
you're not a lawyer, so I'm not certain how you can effectively make the
statements you are making.
Mr. Saad: I could speak about the general atmosphere in the
trenches of academia. Because of that, I could hypothesize the trajectory of
victimhood that stifles people from speaking.
I gave the example of the endless, innumerable testimonies I received
that should make every senator in this room feel bad that I would be
receiving such emails. From that perspective — and perhaps I'm wrong legally
and that whatever you said is correct, but that doesn't mean it's not
something we shouldn't be worried about.
I live in the trenches of academia and see how terrified my colleagues
are of uttering a single word out of place lest someone be offended. That's
wrong, and we should stop it.
Senator Mitchell: People in this room —
The Chair: Can we come to an end here?
Thank you, witnesses, for your appearance here this evening and for your
contributions to our deliberations.
Joining us for our second hour, we have Meghan Murphy; from the WOMAN
Means Something Campaign, Paul Dirks; and from the Vancouver Rape Relief and
Women's Shelter, Hilla Kerner, Collective Member.
Thank you for being here. You have up to five minutes each for an opening
statement, and we will begin with Ms. Kerner.
Hilla Kerner, Collective Member, Vancouver Rape Relief and Women's
Shelter: Transgender people must live in safety and have the equal
rights and opportunities that are promised to us all.
We have no doubt that people whose behaviour is not consistent with the
tyrannical, socially imposed definition of manhood or womanhood, including
transgender people, suffer condemnation, discrimination and violence. Women
have been punished since the dawn of patriarchy for disobeying the
suffocating constrictions of girlhood and womanhood.
For Canadians, the Montreal Massacre is an extreme example of the
punishment of women who dared to reach beyond educational and professional
norms for women at the time. All over the world, women are punished for
having abortions and for not submitting to compulsory heterosexuality and
choosing lesbianism. Women and their children are living in our own shelter
because these women's husbands are threatening to kill them for breaking up
the marriage. Whenever women challenge the gender straightjacket that
maintains our subordination, we risk punishment.
We are worried that well-intentioned legislation will be used to
undermine the rights of women and the crucial work of women's groups to
serve and organize with female-born women. From birth, through our girlhood
and womanhood, we are treated differently. That treatment constitutes our
Female-born women and people who were born male and self-identify as
women have different life experiences. I don't know what it means to "feel
like a woman'' — I know what it is to be a girl and to be a woman, and the
experiences and the feelings I have because I am a woman. My experience is
reflected in the experiences of the women who call us. We know the
embarrassment of having our clothes stained with blood from our period, the
anxiety of facing an unwanted pregnancy and the fear of being raped. We know
the horror of being raped and we know the comfort of grouping with other
We connect the personal individual experience of how we are treated as
girls and women to the collective political reality of women's oppression.
To the specifics of Bill C-16, and the use of the terms "gender
identity'' and "gender expression,'' there is no social consensus on what
these terms mean. We, like other feminists, use the term "gender'' to mean
the socially imposed division of the sexes. Simone de Beauvoir wrote in
The Second Sex that, "One is not born, but rather becomes, woman,'' and
that "it is a destiny imposed on her by her teachers and by society.''
We understand that the authors of the bill use the term "gender'' to
describe an internal feeling or state of mind that can be consistent or
inconsistent with one's sex. Some say that these internal feelings innate
and some say they are fluid, and therefore in this concept, living out one's
true gender identity is supposed to be liberating, not confining.
Similarly, they use the term "gender expression.'' In the bill, it means
how a person publicly presents their gender. This can include behaviour and
outward appearance such as dress, hair, makeup. From our understanding,
gender expression describes the behaviours that oppress and control women.
That includes men's violence against women. Males are not inherently
violent. Men are violent because of the social construction of masculinity
and manhood. In this context, rape is a gender expression.
Clearly, this is a very controversial issue and not just in Canada. We
have barely achieved formal equality rights for women, let alone changed the
reality of women's lives, and we are asked to concede to a concept and legal
applications that contradict the core understanding of women's oppression,
which is the starting point of our fight for our liberation.
We are calling on the Senate to apply sober second thought. We must have
legislations that protects both the equality interest of women and the
equality rights of transgender people. We urge the Senate to expand the
study of the bill to allow full discussion, serious and complicated thinking
and careful, nuanced articulation that will result in legislation that
reflects the noble promise of protection and advancement of equality for
Meghan Murphy, as an individual: A key problem with this bill is
that it proposes to amend something as important as the Canadian Human
Rights Act and the Criminal Code in order to include something that is not
According to Justice Canada, "gender identity'' is defined as "a person's
internal or individual experience of their gender.'' But this definition
misunderstands what gender is. Gender is not about internal or individual
experiences — it is a social construction. It exists as a means to reinforce
stereotypes and oppressive ideas about men and women. Gender does not mean
male or female; it means masculine or feminine.
A century ago, gender determined that women should not be allowed to vote
or be counted as persons under the law in Canada. Gender says that men are
inherently violent, aggressive, independent, assertive and rational, whereas
women are inherently passive, delicate, nurturing, irrational and emotional.
These ideas have been disproved thanks in large part to the feminist
movement, yet today, in creating and supporting the idea that one can have
an internal gender identity, we are regressing.
No one is born with a gender. We are born male or female and gender is
then imposed on us through socialization. Women do not know they are women
because they are born interested in high heels or the colour pink. They know
they are women because they are female. Treating gender as though it is
either internal or a personal choice is dangerous and completely
misunderstands how and why women are oppressed under patriarchy as a class
Patriarchy was invented in order to control women's reproductive capacity
and gender was created in order to naturalize and reinforce that
hierarchical system. Women and girls around the world are killed,
prostituted, raped and abused every single day not because they wear
dresses, have long hair or behave passively but because they are female. And
under patriarchy, females are said to be "less than,'' things that exist for
male use, to be owned bought, sold and looked at.
Women's rights exist on this basis because we, as a society, understand
that women are discriminated against and subjected to male violence
regardless of their clothing, body language or behaviour, which is now
apparently being defined as "gender expression.''
The idea that women could simply express themselves or identify
differently in order to escape oppression under patriarchy is insulting and
provably untrue. Yet, this is what ideas like gender identity and gender
expression communicate. If we say that a man is a woman because of something
as vague a feeling, or because he chooses to take on stereotypically
feminine traits, what impact does that have on women's rights and
protections? Should he be allowed to apply for positions and grants
specifically reserved for women based on the knowledge that women are
under-represented or marginalized in male-dominated fields, and based on the
fact that women are paid less than men and often will be fired or not hired
in the first place because they get pregnant or it is assumed they may
become pregnant one day?
The way men feel on the inside does not change that they hold power and
privilege in this society, and the way women feel on the inside doesn't
change their experience of sexism. I don't feel as though I should be called
misogynist names, objectified, abused or sexually harassed, but these things
have happened to me anyway. I did not choose to be treated like a woman
under patriarchy, and I have never felt comfortable with femininity. Does
this make me a man?
Dissolving the categories of man and woman to allow for fluidity may
sound progressive but is no more progressive under the current circumstances
than saying race doesn't exist and that White people don't hold privilege in
this world if they don't feel White, or if they take on racist stereotypes
attached to people of colour. If a White person did this, we would rightly
call it co-optation and denounce the behaviour. Why do we accept that if a
man takes on sexist stereotypes traditionally associated with women, he can
magically change sex and shed his status as male in this world?
The rights of women and girls are being pushed aside to accommodate a
trend. Bill C-16 may sound persuasive in its efforts to be open-minded and
inclusive, but it rests on very shaky ground. I implore you to further
consider the consequences and implications of these ideas, this language and
this legislation before jumping on this bandwagon.
Paul Dirks, WOMAN Means Something Campaign: I consider it a great
privilege to speak to you today, honourable senators, in opposition to Bill
C-16. I believe this bill to be well-intentioned, and yet it puts women and
children at risk of sexual violence, and perhaps more importantly removes a
woman's right of consent when it comes to her bodily privacy.
Our campaign has done hundreds of hours of research on male violence
against women in public spaces. We have logged 255 incidents of the sort
that many people say do not exist. These are largely of voyeurism in spaces
like unisex change rooms at pools, gender-neutral bathrooms or, in 29 cases,
situations where males have expressed a female gender and perpetrated
violence in women's safe spaces. Let me give you a few examples only from
In 2012, Christopher, or Jessica Hambrook, assaulted two women in Toronto
shelters, in at least one case, after three weeks of identifying as a woman.
In 2013, Darren Cottrelle dressed as a woman and committed voyeurism in a
woman's washroom at Dufferin Mall in Toronto.
In 2015, Xingchen Liu dressed as a woman and committed video voyeurism in
a women's change room at Leduc Recreation Centre in Edmonton.
Also in 2015, the University of Toronto faced a debacle when they were
forced to reverse their decision to make many of their washrooms gender
neutral when at least two women were victims of voyeurism while they were
We recently did a geographical analysis of these incidents. We compared
the level of incidents per population in those regions which had
gender-inclusive legislation with those that did not. Regions with gender
legislation were 1.8 times as likely to have these violent incidents against
women than those without.
All five of the regions with the highest incident rate per population
were those with gender legislation, with Ontario being the second out of all
states, provinces and territories.
The best data we have available demonstrates that gender-inclusive
legislation is associated with increased harm to women.
Target stores make for an interesting case study, which corroborates this
finding. It is well-known that in April 2016, Target publicized its
gender-inclusive policy. In the 13 months since, Target has experienced
eight incidents of sexual violence against women in the change rooms and
washrooms of their stores. This was more than all other years combined.
One of the most notable of these incidents occurred in July 2016 in
Idaho. Shauna Smith, a trans woman, one of few represented in our database,
videotaped an 18-year-old woman changing. At Smith's sentencing, the judge
I, perhaps along with others, thought that Target has now adopted a
questionable policy (and wondered) is someone going to come in and
victimize someone because of that. You took advantage of that and
victimized this young lady.
But not only do women have the right to be protected in their safe
spaces, they have a right of consent concerning their bodily privacy in
places like change rooms.
Stanley v. RCMP 1987 states:
We cannot conceive of a more basic subject of privacy than the naked
body. The desire to shield one's unclothed figure from view of
strangers, and particularly strangers of the opposite sex, is impelled
by elementary self-respect and personal dignity.
Stopps v. Just Ladies Fitness in 2006 states:
Privacy interests are not determined by the lowest common denominator
of modesty that society considers appropriate. What is determinative is
whether a reasonable person would find that person's claimed privacy
interest legitimate and sincere, even though not commonly held.
Bill C-16 removes women's right of consent concerning their bodily
privacy and overturns decades of jurisprudence on bodily privacy law. This
is likely why a majority of Canadians do not support full choice for trans
An Angus Reid poll in 2016 found that while 84 per cent of Canadians
approve of transgender rights generally, as do I, only 41 per cent supported
full transgender bathroom rights. It is highly likely that support for
change room access would be considerably less.
Honourable senators, we need more protections for women, not less. And
above all, women must retain the right of consent concerning their bodily
The Chair: Thank you all.
We will move now to questions, beginning with our deputy chair, Senator
Senator Baker: Thank you to the witnesses for their presentations.
Change rooms and pools and so on come under the jurisdiction of the
provinces, and they have had this legislation for years. Of course, any act
of violence is punishable under the Criminal Code. In other words, I think
you're maintaining that the provinces have made an error in implementing the
legislation that some have had since 1985. I presume that's your point. I
see you are nodding.
Ms. Kerner, you represent the Vancouver Rape Relief and Women's Shelter.
Is this the same organization that was before the B.C. Court of Appeal in
Vancouver Rape Relief and Women's Shelter v. Nixon?
Ms. Kerner: Yes, this is us.
Senator Baker: Are you unhappy with what the British Columbia
Court of Appeal had ruled? The appeal to the Supreme Court of Canada was
denied on the decision of the Court of Appeal, which overturned the trial
judge's decision in that case. As I recall, the ruling was in favour of your
Ms. Kerner: That's true. The first round, the Human Rights
Tribunal — I assume people understand the case that the senator is asking
Senator Baker: Yes, all the senators would.
Senator Plett: No, they wouldn't.
Ms. Kerner: Would you like me to explain?
Senator Plett: Please.
Ms. Kerner: Nixon was born a male and at the age of 33 had sex
reassignment surgery, and a few years after wanted to volunteer with us. He
came to interview with our training group, and the facilitator explained to
Nixon that because of the core relations that we have with women, we have
peer relationships with women based on our shared experiences born female
and raised as girls into womanhood, and we would not train or accept people
who did not live their whole life as a female.
Nixon made a complaint to the Human Rights Tribunal in British Columbia
before the new definition accepted "transgender'' under the criteria of sex,
and the Human Rights Tribunal ruled that Rape Relief did discriminate
against Nixon and awarded him $7,500. Rape Relief took the case to judicial
review. The Supreme Court of British Columbia judgment was that the Human
Rights Tribunal erred, made a mistake, and that Rape Relief had not
discriminated against Nixon. And under the freedom of association, we are
allowed to organize for the purpose of fighting for equality of a repressed
group, we have the permission to define who the members of our group are.
Nixon appealed to the B.C. Court of Appeal, which reinforced the judgment
of the B.C. Supreme Court and agreed that we have not discriminated against
Nixon. When Nixon appealed to the Supreme Court of Canada, the Supreme Court
Senator Baker: So you were happy with the judgment?
Ms. Kerner: We were satisfied. It was a very painful process of 12
Senator Baker: That was under provincial law, but it was under the
definition of "sex,'' I think, wasn't it?
Ms. Kerner: That's true.
Senator Baker: But it's the same issue that we're addressing here.
Ms. Kerner: That's true, but if you paid careful attention to my
presentation, we do not object that trans people not only will be protected,
as they are. There probably is room — because the legislator understands
there is particular harm done to transgender people — to protect them, but
the way the law goes about it is a problem — not the intention, not the hope
that the law would like to create.
In British Columbia, the government passed in one day last year — there
was no consultation — definitions that include gender identity and gender
expression. They were not needed technically because the Human Rights
Tribunal did hear cases, and it's true that the federal human rights
tribunal accepted cases of transgender people without those definitions, so
they formally have been protected before.
Senator Baker: Thank you.
Senator Plett: Ms. Murphy, my question is for you.
Dr. Gad Saad was just here. I'm not sure whether you were in the room.
Hopefully, of course, you will be treated a little nicer than he was, but he
attributes the difference between men and women and femininity and
masculinity to evolution and biological differences.
Now, you are here today making the case that gender is a social construct
and imposed upon us through socialization.
You are both experts in your own right, and what that tells me, and I
think you have said it, is that there is still a lot to talk about with
respect to gender. One major problem with this bill is that it prematurely
shuts down this debate.
You raise an interesting point with respect to the access of transgender
women, or potentially even gender-fluid individuals, to jobs or grants
reserved for women. I find it interesting that a government who focuses so
much energy on 50/50 quotas for men and women would blatantly impose binary
categories in putting forward legislation that enshrines the theory of a
gender spectrum into law. Would you care to comment on that?
Ms. Murphy: Yes, that's one of the places where gender identity
and women's sex-based protections come into conflict. It's often claimed
that there is no conflict and it's just about protecting transgender people,
and transgender people should be protected under the human rights code, and
I believe they already are, in fact. But women are still an oppressed class
of people in this country and in this world, and that's solely due to
Once we start writing into legislation things like gender identity and
gender expression, it has the potential to trump women's rights.
Senator Plett: Could you elaborate a little bit on your position
on the feminist perspective on the importance of women's-only spaces?
Ms. Murphy: This is actually a long story.
The second-wave feminist movement that began in the late 1960s happened
because women were able to gather together and talk about their shared
experiences of oppression. It was called consciousness raising, and that's
why the women's liberation movement started. Women were able to get together
only with other females and talk about what was happening to them in their
lives at work, at home, with their partners and their husbands, and their
experiences of rape and abuse as women.
It's pivotal. We can't organize as a class of people, as women, as an
oppressed class of people, if we can't meet with only other women. And this
is a right that all marginalized groups should have. People of colour should
be able to meet with just people of colour to organize for their rights and
their protections, and women should have that right also.
Senator Plett: And this bill would put that in jeopardy?
Ms. Murphy: I believe so.
Senator Plett: Thank you.
Senator Jaffer: Thank you to all three of you for your
I want to recognize Ms. Kerner. I come from Vancouver, and when I'm
desperate to find shelter, you are always coming through for people. I want
to recognize the tremendous work you do.
Ms. Kerner, I listened to you very carefully, and I know what the shelter
stands for; this is also, maybe, for Ms. Murphy. Neither of you are saying
that we should not protect trans people, right? Of the three of you, I don't
think you were saying we should not have protection for trans people. Am I
correct on that?
Ms. Kerner: Of course, and there is no debate that transgender
people in British Columbia, and probably all over the country, do need
shelters, support services and protection. I am just saying, on behalf of my
group, that the right for protection needs to be carefully carved so that it
will not interfere with the protection of female-born women and organizing
with female-born women in our fight for our liberation.
Senator Jaffer: But the Nixon case covered that.
Ms. Kerner: It's true.
Senator Jaffer: It is covered.
Ms. Kerner: We are protected, but I also think you are aware of
the situation in Vancouver, Senator Jaffer. We were protected and we have
our autonomy, but surely you know the witch hunt that goes on against my
group. The B.C. Federation of Labour just instructed all their affiliated
unions to boycott Vancouver Rape Relief and Women's Shelter. It's the oldest
rape crisis centre in Canada. Because even though the Supreme Court of B.C.
agreed that we are allowed to work only with female-born women, we are
deemed to be transphobic. And that's the danger of the legislation: It is
not explicitly expressing the rights of women to organize.
Senator Jaffer: There are two issues here. One is the very basic
issue of protecting trans people, and that's what we are looking at. We as
women have flourished because somebody before us gave us the protection, as
people of colour have flourished as people gave them protection. And as we
are evolving, we must make sure trans people are protected so that they
flourish in society as women, as people of colour have flourished. I know,
Ms. Kerner, that you would not disagree with that.
Ms. Kerner: Of course not. Nobody with a heart would disagree with
Senator Jaffer: And for me, that's what this bill says.
Ms. Kerner: I understand there is no debate. I think there is
On behalf of my group, we're not challenging the intention of the
legislation. We're just saying there is no consensus on the very basic
You have such an important role in Canadian democracy to foster public
conversation. Don't rush the bill. Invite many, many witnesses, including
feminist legal scholars, so we can carefully craft legislation that does
exactly what you want with protecting other groups.
Senator Dagenais: My question is for Ms. Murphy. Given everything
the committee has heard, it is clear that a consensus does not exist over
how to define the term "gender.'' As regards gender confusion or gender
identification, which you say Bill C-16 should not address, could you give
us examples of its potential effects, mainly in the workplace?
Ms. Murphy: I'm not exactly clear on the question, but I think
what I'm speaking to primarily, again, is this language and that we should
be writing the idea of gender identity and gender expression into the Human
Again, gender isn't a real thing; this isn't a quantifiable thing.
There's no way of determining whose gender identity is what because gender
isn't an identity. It's not something inside. It's just sexist ideas. That's
all that it is. It's sexist stereotypes that are imposed on people. So I
take issue with the idea that this exists in the first place. It's harmful
to women, because it could be argued that women are born feminine. If I'm
born female, and I say I'm a woman, what does that mean? Does that mean that
I identify with the sexist stereotypes — that I identify with femininity —
and femininity to me is oppression?
That's an idea that justifies my oppression and the oppression of women
and girls everywhere. That's my main problem with this bill.
Senator Pratte: Mr. Dirks, I'm interested to know more about where
your data comes from. If I understand correctly, the 255 incidents that you
have compiled all happened in non-sex-segregated spaces from something like
2009 to today.
Mr. Dirks: They go back a little further, but yes.
Senator Pratte: If my calculations are correction, about 90 per
cent of those incidents were committed by males who were expressing as
Mr. Dirks: Yes, correct.
Senator Pratte: So that doesn't have much to do with transgender
Mr. Dirks: No, that's incorrect. It's a very good question.
Pro-protection advocates have been making the case for quite some time
that transgender people do not pose a special threat but rather that male
predators who will take advantage of these spaces do. This is precisely what
the number of incidents show — a tremendous number of examples of that.
When you relax the protections of women in the places where they are the
most vulnerable and unclothed, it creates opportunities.
If you want, I would be happy to share with you an example of a sexual
perpetrator — it's very graphic — of how he goes about. There are many
Senator Pratte: But unisex spaces have existed for a long time,
before we even talked about transgender people.
Have you computed the same kind of data as to the number of incidents
that happened in sex-segregated spaces during that same period of time?
Mr. Dirks: No, I don't have that analysis.
Senator Pratte: So we have no basis of comparison as to how many
incidents happened in sex-segregated spaces during that same period of time.
Mr. Dirks: Here's the relevancy —
Senator Pratte: No. Do we have that basis of comparison?
Mr. Dirks: I have already answered: I don't have that basis of
Senator Pratte: Okay. I have the last question —
Mr. Dirks: But may I answer the question?
Senator Pratte: Yes, but I will ask my last question and then you
I would also like to know whether we have a basis of comparison in those
same states or provinces and whether we can compare the statistics before
gender legislation was adopted and after regarding the number of incidents
Mr. Dirks: Okay, thank you, senator.
Senator Pratte: Go ahead.
Mr. Dirks: To answer the last question first, I'm not certain that
we have the number of incidents. As probably most of you know, when you
start to run studies, you need a certain amount of data to be able to do the
right kinds of calculations. The less data you have, the less reliable your
There are not the data to be able to do the kinds of regressions that you
are asking for, although I would love for that data to be available.
The second question as to relevancy is absolutely key because of this: In
these spaces, there is no way for a woman to know whether she is in
jeopardy. When she's unclothed, there is no way for her to know whether
somebody should be there.
You have examples of women being kicked out of women's shelters. In the
Okanagan in B.C. recently, in 2017, women were being kicked out of women's
shelters because they objected to having a male who identified as a woman in
their space where they are unclothed. We have all sorts of examples where
these predators are getting in. We can multiply examples.
Senator Pratte: There always have been predators, and I would
submit that your data is not scientifically reliable.
The Chair: We'll have to leave it there and move on.
Senator Frum: A witness on the previous panel, Theryn Meyer, made
a suggestion that the term "transsexual status'' would be a more precise use
of language than "gender identity'' or "gender expression.'' I would like to
ask Ms. Kerner and Ms. Murphy if it were possible to amend the legislation
by replacing the terms "gender identity'' and "gender expression'' with a
term such as "transsexual status,'' would that be an improvement or would
you still think the bill needs to be further studied?
Ms. Kerner: No, definitely the bill needs further study. There are
brilliant feminists across this country who did not have the chance to have
their opinions heard. We should have their wisdom.
In the grounds of discrimination, there is an under-note saying that when
it comes to pregnancy or childbirth, it will come under sex. One possibility
is to say that when a person's behaviour is not conformed or consistent with
the social expectation of that person's sex, that discrimination should be
deemed to be on the ground of sex. That is how, de facto, the human rights
tribunals federally and provincially have been interpreting the law. Then we
do not get to all kinds of definitions or mindsets that are not clear and
not agreed on in Canadian society.
We know that transgender people are harmed, because they are behaving in
a way that is not complying with their sex. It's actually a factual,
realistic thing, and that behaviour should never be condemned. We as women
want the freedom not to behave in the way of the confining messages about
femininity, and all people should have that freedom.
Senator Frum: In terms of the consultation process for this bill,
was your group consulted?
Ms. Kerner: No.
Senator Frum: You don't feel the feminist community was adequately
consulted by the minister or at the house committee?
Ms. Kerner: Not at all. On the contrary. We do appreciate that the
committee, at the very last minute, accommodated our pleading to be heard,
but we had to fight to get in the door. We have not been consulted in the
Senator Frum: Thank you.
Senator Pate: Thank you very much to all of you for attending. I
want to particularly thank Ms. Murphy and Ms. Kerner for the work they have
done in the feminist community for many years.
To echo Senator Jaffer, I would like Ms. Kerner to take back to your
collective an appreciation on behalf of many women, not just women escaping
violence. You've taken in women from prison, women who have come as refugees
and some of the first women who later were some of the missing and murdered
indigenous women. You have also worked to assist other shelters in
developing and to promoting women's equality more generally. So thank you
for that work.
Would you be willing to provide the definition that you just identified?
You have made me think of that.
We have asked through the committee for an opinion from the Department of
Justice about if a case came up again like the case that you faced, and it
was within the federal jurisdiction, what would happen in terms of gender
and sex discrimination discussions and opinions? If you were assured that
you would still be able to self-organize, would your concerns about this
bill be alleviated, if we get that opinion back from Justice?
Ms. Kerner: As I mentioned, there is a particular legality and
there is a social consensus — a social treatment.
I did mention the boycott that the Vancouver Rape Relief and Women's
Shelter is suffering, but I also want to say that because we have been
around for so long, we respond to 1,200 women escaping male violence every
year. We shelter at least 100 women in our house with their children. We do
have a lot of support in the Vancouver community, and we're sustaining
ourselves beyond this boycott or any other attempt to undermine us.
The purpose of the law, particularly of this kind of law, is not just
about the legality. It's to set a world view. It's to set a concept that
says it doesn't matter which sex you were born into, which is really a
wonderful concept in theory but which completely dismisses the reality of
So we better fight women's oppression. We better understand how it plays
around the world. We know in some places baby girls are murdered as soon as
they are born. Also, in our own country, a woman is murdered by her male
partner at least once a week. We know about violence against indigenous
women. We're not a world yet where gender confinement to sex does not
Senator Pate: I know that Vancouver Rape Relief and the crisis
line you operate does work with transgendered individuals, men and women who
call the line, and you mentioned that there is a need for resources there.
Are there other ways that we could be looking at this that might assist in
ensuring those resources and supports are available for individuals who are
now getting the support through your crisis line?
Ms. Kerner: Of course we're humans with a heart, and we will never
turn away someone who is not safe. We will secure the safety of anybody who
calls us, but if transgendered people are interested in the services that
Rape Relief offers to women, it would be wise to create a service that is
designed by transgendered people, offered by transgendered people to
transgendered people so there is a full understanding of the experience of
people's lives and relation and support from that place.
In general, we are lacking in services. There are not enough services to
help all women. We have to turn away women all the time, and that is true
for other transition houses. So more services to all, and if the legislators
want to protect transgendered people, there should be designated services
for transgendered people.
Senator Batters: Thank you very much, all of you, for coming
Ms. Murphy, as you likely know, this bill is not the same as the previous
bill that we dealt with from the last Parliament. This bill not only
includes gender identity as a protected ground but also gender expression.
Do you consider the term "gender expression'' to be vague? From your
feminist point of view, what is your perspective on that particular term?
Ms. Murphy: I do consider it to be vague. I consider both terms to
I think the point that Hilla made was important, which is that what we're
still talking about is sex-based protection, and what we should be defending
is the right of people, regardless of whether they are born female or male,
to be gender non-conforming, to not fit into the stereotypes I talked about
As I have said, this language is a big problem because it treats gender
as a personal choice. It treats gender as though it's the clothes that I
wear or makeup or behaviour or the way we sit, these things that are all
enforced on us through socialization.
There are issues that feminists talk about all the time, things like "man
spreading.'' It's a silly word, but it's about the way that men take up
space in public places. That's something that's socialized. That's something
that is learned. A man learns to feel comfortable taking up space, whereas a
woman learns to take up as little space as possible, to be polite,
accommodating and not to set boundaries.
I don't want to start building legislation around those ideas, that if
you are a male and you behave in a way traditionally associated with
femininity, then that must mean you're a woman, because that's not what it
means to be a woman.
Senator Batters: Given what you have just said, would you say that
including "gender expression'' in addition to "gender identity'' exacerbates
these stereotypes from what the previous bill did, and focusing simply on
the expression of gender as opposed to anything else?
Ms. Murphy: Yes, I do, because I think it legitimizes these ideas.
It treats systemic oppression as something that is about personal feelings
and personal expressions. Does this mean women are raped because they look
feminine? Does it mean that women are abused because they are too passive?
It's a really dangerous path to go down, in my opinion.
Senator Omidvar: Thank you all for your testimony.
My question is for Mr. Dirks. Would you agree that anyone can commit
Mr. Dirks: The statistics are that voyeurism and exhibitionism are
almost completely dominated by males; upwards of 98 per cent, probably
I've personally gone through state sexual offender records, and high-risk
sex offenders are almost always male, again around the 98 per cent mark.
Also, fantasies of voyeurism: Able, in his 1998 study; and Templeman, in
his 1991 study. The sample that Templeman had in 1991 found that 40 per cent
of males had engaged in voyeurism. That's a tremendous statistic. In another
study that Templeman cites, upwards of 40 per cent had fantasized about
voyeurism and others about pedophilia and rape.
These are criminal patterns that do not exist amongst women. They are
significant. The magnitude of differences between male and female on these
kinds of things is enormous. There are some very important things that need
to be in place when it comes to sex segregation to protect women and girls.
Senator Omidvar: Do you have evidence that voyeurism and similar
crimes are more likely to be committed by transgendered people versus women
or men? I think you sort of answered that.
Mr. Dirks: There is no pro-protections advocate that I'm aware of
that argues that trans women are more dangerous than other women as a group.
But there is one piece of evidence that's important in this, and that is
that there exists amongst trans women certain criminal patterns that do not
exist at all amongst women.
For instance, in the earlier part of this year, there was a sex offender,
Antoine Naskathey, who was out on the loose in Vancouver, who was gender
variant and sometimes identified himself as female. He was convicted for
breaking into homes and sexually assaulting female residents between 2001
and 2009. It's an example of a criminal pattern that simply does not exist
amongst women, where a woman would break into a home and perpetrate sexual
violence against other women.
Matthew — who is now known as Madilyn — Harks would be another example.
She has claimed to have victimized 60 girls.
There are tremendous sex differences that need to be taken into account
there. No one is saying that trans people are more dangerous, and yet there
are patterns amongst trans women that do not exist amongst women.
Senator Omidvar: I'm not clear whether that is a series of
anecdotes or evidence.
Mr. Dirks: Those are personal accounts. They're personal things
that are happening right now in 2017. Earlier on, you had somebody who was
on the loose that women should have been scared of in their safe spaces,
whereas before, if only females were allowed into their spaces, they had no
need to be afraid of.
Senator Omidvar: We heard in last week's testimony that, in fact,
transgendered people are more likely to be victims of crime than other
Mr. Dirks: That's a great question.
In 2015, the greatest survey done on trans individuals in the States
surveyed 27,700 trans individuals across every state. They found that 1 per
cent of trans individuals were victims of sexual assault in bathrooms, and
0.6 per cent were victims of sexual assault in bathrooms. It may be that
there is an overlap between those two numbers.
I repudiate those kinds of incidents. They're horrifying, and yet one
must be aware that 1.6 per cent, even if you add those two numbers together,
of a population of 0.6 is a very small group of people.
Senator Joyal: I'm listening carefully to your reasoning, Ms.
Murphy and Ms. Kerner. Frankly, I have a problem with it on the basis of
You start from the facts that women have been discriminated, oppressed,
imposed on with a way of dressing and whatnot to keep them vulnerable to men
Then you say that transgender people who identify as women are not in
fact real women. They can't think as a woman. They don't have the sex of a
woman. Even though they identify to the society that imposes on them a
certain behaviour, in fact they will never be women. So they are not of us.
They should be away, in another group, in other services, in another way of
dealing with them if they have social problems and whatnot.
I have a problem with that because we would be creating, in the law,
another discrimination on a group of persons that is more discriminated
against than women have been discriminated against, and we're fighting
against that. My colleagues all around the table fight against that in their
way and capacity.
I missed the establishment of the connection that a transgender woman is
not a woman and we don't want her amongst us. Mr. Dirks says that she will
be threatening. She will be spying, looking. She might assault us, aggress
us and whatnot.
We have to be very careful when we establish categories of people to be
sure that we don't use anecdotes to maintain discrimination or find a way
out of addressing the problem front and centre. That's where I wrestle with
your reasoning. I'm not sure that I would adopt it 100 per cent, as much as
I say I would fight tooth and nail against the oppression of women of
Ms. Kerner: It's good to know.
Senator, I don't know if transgender people are more oppressed than women
or more discriminated against. I don't want to go into a competition of who
I do think at lot of people suffer. There is no debate about women's
oppression all over the world and here in Canada, and I don't want to be a
position of asserting something that is already established in Canadian
I don't know how you define "woman.'' Surely, it's not a lifestyle. We
are saying that if you were born a female, you are doomed. You are doomed in
our society to be a second class. You do not have the privilege of growing
as a male and have a choice to choose to be a woman. Surely you cannot say
these are the same thing.
Senator Joyal: When you're born a woman, you are under harsher
conditions. Let's put it in the broadest possible terms of a person who
identifies psychologically and personally, with clothing and ways of doing
things, all the factors of identification you can imagine, and goes public
and says, "I am a woman and I assume the condition of women and the
condition of discrimination of women.'' Because a transgender woman is not
another woman, she has exactly the same women's status as any of the other
women. That's why I have a problem with saying that she is less
Ms. Kerner: I don't want to go there. I do not think it's wise to
say who is more or less oppressed.
I have not used anecdotes. A concrete example that the Vancouver Rape
Relief has dealt with is that a person who was born male had the privileges
that being a male gave this person. They were a successful pilot before
choosing to become a woman. It's a different life experience.
I think what we're disagreeing on is this: You have not been convinced
that once you are born a female, you are forced into an oppressed class. I
think we have a principled debate. It might be because you are not
pro-feminist or it might be because you're a man. But we are still in a
world where, when you are born a female, you're born to be second class.
The anecdotal cases that we have of successful women are actually
"anecdotal'' because you will see that the majority of women in the world
have less. The level of violence against girls and women is much higher,
poverty, discrimination in every area of life. It is not the same as being
born to be of the oppressing class, to be born with privilege. The internal
feeling and the assuming and the appropriation cannot mitigate or undermine
the fact that society does give privilege to men.
The Chair: I'm afraid we have run out of time. I want to thank our
witnesses for being here this evening and assisting this committee in its
deliberations. It is much appreciated.
(The committee adjourned.)