THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
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 4:15 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
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 biological essentialism?
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 transgression.
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.
Thank you.
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.
Thank you.
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 everyone’s satisfaction.
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 level.
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 me.
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 pass?
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 completely silent?
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, already traumatizing.
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 offended.
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 statement.
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 singular form.
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 address.
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, right?
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 changed —
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 careful.
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 justified.
[Translation]
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?
[English]
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 one.
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.
[Translation]
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.
[English]
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 direction.
[Translation]
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.
[English]
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.
[Translation]
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?
[English]
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.
[Translation]
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 clear.
[English]
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 party.
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 today.
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 expressed.
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 together.
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 fine.
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 promotes.
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 addressed.”
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 religions.
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 defined.
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 should do?
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 job.
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 choir.
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 oppression.
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 women.
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 all.
Thank you.
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 even definable.
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 of people.
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 Canada.
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 showering.
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 stated:
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 bathroom access.
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 privacy.
Thank you.
The Chair: Thank you all.
We will move now to questions, beginning with our deputy chair, Senator Baker.
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 centre.
Ms. Kerner: That's true. The first round, the Human Rights Tribunal — I assume people understand the case that the senator is asking about.
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 dismissed it.
Senator Baker: So you were happy with the judgment?
Ms. Kerner: We were satisfied. It was a very painful process of 12 years.
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 biology.
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 presentations.
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 that.
Senator Jaffer: And for me, that’s what this bill says.
Ms. Kerner: I understand there is no debate. I think there is consensus.
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 terminology.
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.
[Translation]
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?
[English]
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 Rights Act.
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 males.
Mr. Dirks: Yes, correct.
Senator Pratte: So that doesn’t have much to do with transgender people, right?
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 examples.
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 comparison.
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 can answer.
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 that happened.
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 findings.
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 Parliament.
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 women’s oppression.
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 matter.
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 today.
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 be vague.
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 earlier.
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 voyeurism?
Mr. Dirks: The statistics are that voyeurism and exhibitionism are almost completely dominated by males; upwards of 98 per cent, probably greater.
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 groups.
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 principle.
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 as predators.
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 whatever sort.
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 suffers more.
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 society.
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 discriminated against.
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.)