Standing Senate Committee on Legal and Constitutional Affairs
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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 18, Evidence - October 2, 2014


OTTAWA, Thursday, October 2, 2014

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), met this day at 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning, and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

We are here today to begin our deliberations on Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity). This bill would amend the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination. It would also add references to gender identity to two sections of the Criminal Code.

Bill C-279 was originally introduced in the House of Commons in September 2011 by Mr. Randall Garrison, the Member of Parliament for Esquimalt—Juan de Fuca, British Columbia. The bill was reinstated by the house at the start of the current session.

This is our first meeting on Bill C-279. For our first panel today, please welcome the sponsor of the bill, MP Randall Garrison. With Mr. Garrison, please welcome the Honourable Senator Grant Mitchell, sponsor of Bill C-279 in the Senate.

Mr. Garrison, we'll begin with your opening statement. The floor is yours.

Randall Garrison, Member of Parliament for Esquimalt—Juan de Fuca, sponsor of the bill: Thank you very much for the invitation to appear before you today. I must say from the outset I am disappointed to be appearing in the Senate again some one and a half years after this bill passed the House of Commons and more than a year after the Senate Human Rights Committee held hearings on this bill. Like many Canadians, I continue to feel the urgency of passing this bill, as it's an important bill that will fill the larger remaining gap in Canadian human rights legislation.

In the time while Bill C-279 has been before the federal Parliament, five provinces have adopted corresponding human rights legislation: Ontario, Manitoba, and Nova Scotia in 2012; Newfoundland and P.E.I. in 2013; and of course the Northwest Territories has had these protections in place for more than a decade — 12 years, in fact.

While I would like to think that the debate here in the federal Parliament has sparked progress elsewhere, the long delays have cost us the chance to be a leader, rather than a laggard, in human rights protection.

This is not a partisan issue but a human rights issue. It is important to note that the legislation adding protection from discrimination on the basis of gender identity to the Ontario Human Rights Code was passed with all-party support. The same legislation was introduced by NDP governments in Manitoba and Nova Scotia, by a Liberal government in P.E.I. and by a Conservative government in Newfoundland.

Similar provisions are now in force in 16 states in the United States, and specific measures protecting against discrimination on the basis of gender identity have been adopted at the national level in nine countries: Argentina, which continues to be a world leader in the protection of trans rights; Uruguay; Puerto Rico; France; Estonia; Croatia; Montenegro; Albania; and Cyprus. In addition, all members of the European Union provide some protections, though not exactly those provided for in Bill C-279.

On September 26, the United Nations Human Rights Council passed a resolution calling on all UN members to take measures to combat violence and discrimination based on sexual orientation and gender identity. This resolution was approved by a vote of 25 in favour to 14 against, with 7 abstentions. It's important to note that Canada was a co-sponsor of this resolution at the United Nations.

Some private companies have already acted to protect against discrimination based on gender identity without waiting for legislation. The Royal Bank of Canada includes the following statement on its website:

We are committed as an organization to providing a workplace where all of our employees can openly embrace their sexual orientation, gender identity and gender expression.

TD Canada Trust has produced a guide for transitioning in the workplace, which has been distributed to the managers of all its branches. The Canadian Labour Congress has made a similar workplace transition guide available to all its affiliates across the country.

Before prorogation last year, this bill had already passed all stages in the Senate, bar one. As I'm sure you're aware, hearings on this bill were held in the Senate Human Rights Committee in June 2013, and the committee reported Bill C-279 back to the full Senate unamended. Unfortunately, the Senate then adjourned for the summer before voting on Bill C-279 at third reading. Even when the bill was forced to start over in the Senate, I was disappointed not to see it expedited and moved to a vote quickly.

The evidence presented in the hearings before the House of Commons Justice Committee and your own Human Rights Committee is available to you. A simple motion could add both sets of evidence to the official proceeds of this committee. The list of witnesses who appeared at one or both of these sets of hearings is extensive. It includes transgender Canadians like Hershel Russell, psychotherapist and educator; and Sara Davis Buechner, Professor of Music at University of British Columbia. It includes EGALE Canada, the Canadian Human Rights Commission, the Canadian Human Rights Tribunal and Justice Canada officials. The list also includes the Canadian Bar Association, the Canadian Civil Liberties Association and REAL Women of Canada. In addition, the committee heard from the Canadian Professional Association for Transgender Health; and Dr. Greta Bauer, Associate Professor, University of Western Ontario, Department of Epidemiology and Biostatistics.

I particularly invite you to look back at the testimony of B.C. concert pianist Sara Davis Buechner, who told her moving story of rebuilding her life and career in Canada after losing it all to the prejudice she faced after transitioning. I will quote from her testimony:

Bill C-279 assures protection for people like me with gender identity needs . . . .

Our needs are not willful; they are not of passing choice; and they are not things that we can simply ignore. For transgendered folks, identity issues are matters of life and death and of living openly, honestly and freely without fear of prejudice, malice, or worse, violence. We do not ask for or deserve extra rights. We need the same rights as our Canadian brothers and sisters of all races, creeds, denominations and identity.

As you've heard, the list of witnesses is quite exhaustive, and I believe you are unlikely to learn much new about the bill in a third set of hearings. I also fear there is a danger that Bill C-279 will get displaced from the list of priorities in this committee due to government bills inevitably coming down the pike. However, I was encouraged to hear senators say they are confident the Senate will deal with this bill before the fall is out.

So if you decide for whatever reason to hold extensive hearings, then I ask you to hear a balanced group of witnesses and to ensure that transgender Canadians have the opportunity to come before you to tell their own stories. If you honestly feel you need to hear more witnesses, then I urge you to bring forward witnesses like the parents and kids from Gender Creative Kids and a representative from Gender Mosaic.

While some have argued on technical grounds that this bill is unnecessary, we have clearly heard from the Canadian Human Rights Commission and the Canadian Human Rights Tribunal that Bill C-279 is needed — both for the purpose of denunciation, to say clearly that this kind of discrimination is not acceptable in Canada, and to fill technical gaps that require trans people to try to argue their cases before the commission or the tribunal under tangentially related grounds.

The proof that the legislation is needed is in the ongoing discrimination suffered by transgender and gender-variant Canadians. Much of that discrimination in things like housing and employment comes under provincial jurisdiction, but there are significant areas of federal involvement, whether that is in obtaining identity documents, like passports, or in the discriminatory Transport Canada airport screening processes, or in protection against hate crimes.

Now, let me take a moment to address what I believe to be the most significant red herring when it comes to Bill C-279: the question of bathrooms. I'm disappointed to be discussing this issue again, as this question continues to surface, even after it's been shown to have no basis in fact. I frankly believe its persistence is a sign of the very trans phobia we are trying to address in this legislation.

Let me first say that very few bathrooms at all could be seen to come under federal jurisdiction — primarily those on planes and trains, which, as most of you will realize, are already gender-neutral.

Public facilities like bathrooms generally fall under provincial justification. In the five provinces and one territory that have protection of gender identity in their human rights codes, there have been no incidents of the kind it is suggested we should fear: incidents of men posing as transgender women in order to gain access to women's washrooms for the purposes of assault.

In the four U.S. states that have had these provisions the longest, we have received written confirmation from the human rights bodies in those states that there have been no such incidents. We have correspondence from California, Colorado, Iowa and Washington State that confirm this. In each letter, the officials affirm there have been no complaints regarding attempts to take advantage of the protections afforded against discrimination based on gender identity in order to use a bathroom or a locker room to engage in inappropriate behaviour, such as voyeurism or assault.

After Bill C-279 passes, using any disguise to enter a washroom for an illegal purpose, whether it is by cross-dressing or dressing as a police officer, firefighter, paramedic or a building maintenance worker would remain just as it is now — illegal. Bill C-279 would make these incidents no more likely, nor would it provide any legal defence to those using such disguises. The Canadian Police Association and the Canadian Association of Chiefs of Police do not share this concern, as both have expressed their support for Bill C-279.

Senator Plett, I know, makes reference to another unfortunate incident that took place at a shelter in Toronto that he somehow feels validates his concerns about Bill C-279. I want to address that incident directly, as well. Despite all the evidence that this was a singular incident, horrible and repugnant, of a man dressing as a woman to gain access to a women's shelter where he committed sexual assaults, connecting this incident to Bill C-279 ignores the technicality that this bill has nothing to do with shelters, as they are never in federal jurisdiction. More important, it ignores the fact that the incident in question took place before this legislation was passed in Ontario, so it has no link to the human rights legislation in Ontario.

The facts in this ugly incident are clear. The perpetrator has been designated as a dangerous offender as a result of this and a long list of other incidents. And I know those other incidents had no connection with the disguise he donned to gain access to the shelter. His victims were a five-year-old child, a 27-year-old intellectually challenged woman, a deaf and homeless woman and a survivor of domestic violence.

These incidents are horrific, but the lack of Bill C-279 did not stop him from using a disguise to commit crimes, and the existence of Bill C-279 would not have made his crimes easier to commit. This example, used as evidence here, may belong in a debate on dangerous offenders, but it has no place in a debate on equal rights for transgender Canadians.

I am asking you to pass Bill C-279 without amendments as the Senate Human Rights Committee already recommended. I should point out that Bill C-13, when it arrives here, will take care of the concerns some of the other senators had that Bill C-279 proposed to add only gender identity to the hate crimes section of the Criminal Code. With Bill C-13 you will find proposals to add age, sex, national origin and physical or mental disability to this section as well.

I also want to stress that an important compromise was made with members of the Conservative caucus in the House of Commons so that 18 MPs from the Conservative Party could support this bill, including eight cabinet ministers. This compromise is likely to continue to be respected in the House of Commons. If you choose to amend the bill, one of the possible outcomes is that you will receive it back in its current form and many months will have been wasted. I'm asking that you respect the compromise already reached in the House of Commons. I'm also asking that you set aside the unfounded concerns about things like the impact on bathrooms, which are essentially outside the scope of this bill.

In closing, let me say that before I ever came to this house, I had the privilege of counting two trans women and a trans man as friends. All three are in stable, long-term relationships. All three work full-time or own a successful small business. All three had to struggle for acceptance among family, friends and their community. Yet all three make the lives of those around them, including me, richer and fuller every day.

I look forward to the day when they no longer face discrimination and threats of violence. All Canadians should be free to live their lives without discrimination and the threat of violence. I'm asking that you act now to provide the same rights and protections to transgender and gender-variant Canadians that the rest of us already enjoy, no more, no less.

I would also like to remind senators of the two duties normally ascribed to them, to protect minority rights and to reflect regional perspectives. I can see no way regional perspectives on transgender rights differ, but it seems obvious to me that this bill should have priority for any legislative body charged with protecting minority rights. I'm asking you now to deal with Bill C-279 expeditiously. Too much time has passed. I remind you that it has been more than three years since I introduced this bill before the federal Parliament, yet provinces like P.E.I. managed to pass their legislation in only three weeks.

There can never be a better time for the passage of inclusive legislation that all Canadians can be proud of than now. As I asked in closing the debate in the House of Commons, when it comes to equal rights for transgender Canadians, if not now, then when?

Hon. Grant Mitchell, sponsor of the bill in the Senate: Thank you, Mr. Garrison. I'd like to thank the members of the committee for their clear interest in this bill and, though it did take some time to get here, once it got to committee, for the expeditious way in which you have scheduled it on the agenda and the time you are giving us to discuss it and present witness testimony.

I also want to thank and recognize Mr. Garrison for his tremendous work on this issue on behalf of the transgender community. He has done this with passion and great determination and at times, as required, great courage. I would like to acknowledge that as well. Many of the people who are here today in the public seating are members of the trans community and supporters of that community and of their concerns and rights. And they, too, have demonstrated great courage in pursuing this issue and their rights in the way that they do.

I made the point to Mr. Garrison yesterday that while this has been a long, tough struggle for him and everyone concerned with this piece of legislation, it has served to elevate the interests, knowledge and awareness on the importance of this issue to Canadians. To that extent, it has served to educate and advance the cause in an important way. It has in many ways been sustained more and more in the compassion and understanding that's simply intrinsic to all Canadians. Canadians get these kinds of issues.

It has also served to enhance the understanding, I believe, of Canadians about the plight of the transgender community, transgendered people, about what they face day to day, the fears, the often brutal psychological and physical violence that they contend with.

For that reason, as well, it has been extremely important.

Transgendered people quite simply have a right to live in safety and security. They have a desire and right to have loving family relationships, as most of us are able to enjoy. They have the right to have respectful and fulfilling relationships in their daily lives. They have a right to the kinds of financial, economic and life opportunities that we all, most of us, can take for granted in this country.

Senator Plett has argued his case with great sincerity. I respect the fact that his arguments come from a place that is sincere and well-intended. He has raised concerns, but as Mr. Garrison has addressed, these concerns are at best hypothetical and do not bear on this legislation for the two powerful reasons that he has pointed out.

First, these concerns have never in fact materialized in cases in places and jurisdictions where they might have, given the circumstances that would be in part implemented by this bill. Second, they're probably outside the jurisdiction of the federal level, which this bill addresses.

We will be bringing a series of witnesses, and thank you for allowing us to do that. These witnesses, I believe, will accomplish at least two things. The first will be to reinforce, through scientific evidence as well as personal presentations, the arguments that Mr. Garrison has made.

Second, and I think even more important, there are witnesses that will include parents, family members, transgendered people, transgendered youth, people who work with the community and with the problems that that community faces. I believe it will demonstrate that transgendered people share so much with all of us, as we expect they do. I reiterate that they simply want to have fulfilling lives. They want to be able to live those lives in safety and security. They deserve to be able to live those lives in security and safety. They deserve to be accepted, understood and included in our society as all Canadians should be.

This is a unique opportunity for the Senate in one sense. We were created as the Senate in large part to focus on minority rights. Certainly that's a role of Parliament, but it's a special, constitutionally underscored role for the Senate. If ever there was a case where we need to rise to that responsibility and that important challenge, this is it. As Mr. Garrison said so well, it is in the recognition of minority rights and the defence of minority rights and in the inclusion of all Canadians with equal rights that we find the greatest richness, the greatest fairness and justice in our society. This is a chance for us to do that, by passing this bill.

The Chair: Thank you, senator. We will begin the questions with the deputy chair of the committee, Senator Baker.

Senator Baker: Thank you to the two witnesses for their excellent presentations.

I might note that the Canadian Bar Association, representing our legal community, is in total support of this bill and has recommended that it be passed as quickly as possible.

As you pointed out, Mr. Garrison, the list of priorities for bills in the Senate of course is established by custom, and that is that government bills take precedence over private members' bills. Of course governments are elected to govern, so we have to have that precedence of government bills.

But I note your point that if the bill is going to be displaced by government bills, then you're suggesting this committee deal with it quickly so as not to put it on the back burner while we have to deal with other government bills that come up in its place. I think that's your main argument. In other words, let's deal with it. We've heard it in another committee, so unite all of that evidence to make a decision and not have it on the back burner while we deal with other government measures. I think that's one of your main points. Is that right?

Mr. Garrison: Yes, senator. I would totally agree with you. I'm not disputing the necessity of this committee moving to government legislation. My worry is that there is significant legislation coming from the House of Commons to this committee, several major pieces of legislation.

Nor am I disputing the Senate's right and responsibility to examine both my bill and other pieces of legislation, but given the length of time that this has been being dealt with, there's great frustration in the transgender community. I am personally feeling frustrated and worried that, once again, the bill will somehow be shoved down the list to where it's not dealt with.

A previous version of this bill was passed in the minority Parliament that preceded this one, and the Senate had no opportunity to deal with the bill before the election was called. We have been dealing with this issue in the federal Parliament for a long time.

Senator Baker: We are constantly reminded of your facts by Senator Mitchell as well, to move it as quickly as possible.

Given that fact, I have only one question, which relates to the definition of gender identity that you have placed in the bill. I read a lot of case law. Of course, your argument was made back in the year 2000 in the Supreme Court of British Columbia, but I do not recall this wording in any definition of gender identity that I have ever seen in any case law. Where did you come up with the definition that you have put in here?

Mr. Garrison: I'll say two things about that. One is that there was considerable debate in the House of Commons as to whether ''gender identity'' should have a definition placed in the legislation since we don't normally do that. Bill C-13, when it arrives, doesn't define physical or mental disability or national origin. It simply places those words into the legislation, and the jurisprudence provides a definition.

It was part of the compromise I reached with other members of the House of Commons who had concerns about the breadth of the bill, that we take a definition and place it in the legislation. This definition is drawn from the international legal precedence, particularly the Yogyakarta Principles, which came from a high-level meeting convened in Indonesia of legal experts in this area. This is the definition they wrote.

Senator Mitchell: If I could add a point to that, it is also important to note that an original draft of the bill written by Mr. Garrison included both ''gender identity'' and ''gender expression,'' and part of the compromise to try to refine the definitional focus of the bill was to exclude ''gender expression.'' I believe it was directly requested by Minister Glover as a condition of her supporting the bill.

I should point out that it was taken out for the reason of refining the definition and trying to clarify it. It should also be noted that Minister Glover, along with 17 other Conservative members of Parliament, voted for this bill.

Senator Baker: I have one final point, Senator Mitchell. You have suggested to this committee a whole list of witnesses, but keep in mind Mr. Garrison's point that if we linger on with a lot of witnesses, you're going to have a government bill come along that will displace this one. You can't have it both ways.

Senator Mitchell: No. As I've often said, the Senate is far more an art than a science. I would like to find the balance between nurturing the arguments that can be made powerfully by witnesses in the process of trying to convince senators to support this bill against the need for dealing with this bill in an expeditious way. I would hope we could have several meetings, and as government legislation begins to loom, we focus our attention on finishing them at a point that would converge also with adequate support in the Senate to pass the bill.

Senator Plett: Thank you, witnesses. First of all, I would like to state — and I think, Senator Mitchell, you are well aware of my beliefs. I think you've agreed that I do not support any type of discrimination, bullying or targeted violence against any individual or group.

I agree with you as well that it is the Senate's job to protect minority rights, but it is never our job to protect minority rights at the expense of somebody else's rights.

I won't spend time describing the case, but Mr. Garrison alluded to the Christopher Hambrook case in Ontario, and indeed, it was before Toby's Law was in place. However, the Fred Victor women's shelter's policy was to allow biologically male, transgendered women into its facility. Not every shelter has this policy because they believe women's-only spaces are important for victims of trauma and abuse.

Christopher Hambrook was not transgendered but biologically male, and he took advantage of this policy to assault women. In fact, he sexually assaulted two women over the course of the night. We can say all we want to say: ''Well, he was dealt with and he's now on the sex registry list'' and all of this. That is of no consolation to the two women who were sexually assaulted. The laws or the rules that this institution had in place allowed him to do that.

This law would further allow that to happen, and you say it's just on airplanes and in one or two institutions. The fact of the matter is it's in every First Nations community; it's in every prison; it's in all cases of RCMP certainly and the Canadian Armed Forces. These are all federal institutions, so this applies in all of these places.

We have had countless women's groups and feminist organizations contact us, emphasizing the importance of women's-only intimate spaces.

How can we, as responsible legislators, enact a policy that will prevent those people operating women's facilities in a federal jurisdiction from denying access to biological males self-identifying as women, which is what Christopher Hambrook did?

Mr. Garrison: With respect, Senator Plett, I am not questioning your integrity; I think you have the right to your beliefs, but at the same time, you can be quite mistaken, which you are in this case.

The man in question was a dangerous offender who found many ways to assault women. This was just one of the many ways. He did not identify in any way as transgender. He used a disguise. Those are two quite different things.

The other thing I will dispute with what you had to say is your assertion that transgender women have no place in women's facilities. Transgender women are women, and they have a right to access women's facilities. That's what the bill is really about.

I'm not questioning your integrity, again, but I think you are quite mistaken in your understanding of what it means to be transgender, and I think you're quite mistaken in your understanding of the dangerous offender's motivation. He did not claim to be transgender; he dressed in a disguise.

Senator Plett: Actually, he claimed to be transgender and called himself Jessica.

Senator Mitchell: I can add to Mr. Garrison's point. In fact, there are many organizations in my home city of Edmonton — the Edmonton Public Schools Board has a trans unit that has done a great deal of policy work. They have gender-neutral washrooms that work perfectly well, and they have had no problems and no difficulties with this kind of issue.

What this legislation would do is open up and highlight the importance of this issue and motivate organizations to find ways to make it work fairly for everybody. There is simply not evidence of the kinds of problems that you're talking about, Senator Plett, as related to this kind of legislation. They have happened quite distinctly from this kind of legislation.

Senator Plett: Mr. Garrison, you said in the other place that the interpretation and scope of gender identity will be left to the courts and the Human Rights Commission to determine.

Other human rights commissions left with the same task, the one in Australia, have included the following variations of gender identity in their definition: transgender, transsexual, intersex, androgynous, agender, cross dresser, drag king, drag queen, genderfluid, genderqueer, intergender, neutrois, pansexual, pan-gendered, third gender, and third sex. Again, these are all variations of gender identity, not gender expression.

With this broad definition in mind, how can you not see a problem with allowing people of various gender identities into sex-specific facilities intended for women?

I'll just follow that up and then I'll be done for this round, chair.

You have a situation where you have an Islamic women's swim club. They fundamentally are not allowed to mix with males. Somebody who self-identifies as trans comes in there and wants to swim. You can say all you want that they are women; they are biologically male. They come in there. Whose rights are trumped in this case?

Mr. Garrison: Again, Senator Plett, I believe you are quite mistaken in your understanding of the concept of being transgender, and so there's no debate we can have about that. You persist in your position, which I believe is not well founded.

When you talk about the question of definition, that is precisely what we compromised on in the House of Commons and the reason that we placed a definition of gender identity in the bill, so that was precisely to narrow the definition so that concerns, as you're raising, of being so broad would be limited to gender identity; but I have to say, placing gender identity in is the same as placing national origin or mental and physical disability. The courts and the commissions will have to interpret those terms, and we will arrive at the working legal definitions as case law progresses. That is the way our system works. It's one of the strengths of a common-law system.

Yes, I do believe the courts will decide this. It is the way our system works, but we did compromise.

Senator Joyal: Mr. Garrison, I would like to commend you for the effort and dedication that you have put into moving this bill. I think it's needed and I think it should be adopted by my colleagues in the Senate. Of course, there are different views around the table, as you realize, but we'll try to understand the legal implications of what you propose to us because this is the role of this committee. We're the Legal and Constitutional Affairs Committee.

My colleague Senator Baker raised the question of how you have achieved the definition of gender identity. You answered that there was an international meeting where experts tried to come up with a definition. Was the definition the result of study of case law whereby courts in different jurisdictions might have wrestled with the challenge of defining what gender identity means, or was it just a reflection and discussion about how gender identity could be defined? In other words, did the court have an influence in determining what they consider being reliable elements to come to a conclusion of gender identity?

Mr. Garrison: Thank you very much for your question, and thank you, of course, for your support for the bill.

I perhaps should have said that the conference at Yogyakarta was primarily a conference of jurists.

Senator Joyal: Who called that conference?

Mr. Garrison: It was convened under the auspices of the United Nations I believe, but I would have to check again on who were the original conveners of the conference. It was primarily international jurists. The vast majority of people present were judges.

Senator Joyal: If you have access to that information, could you provide us with more or less the minutes of that conference?

Mr. Garrison: Yes.

Senator Joyal: There should be a report that would highlight the various arguments, the various elements so that we could satisfy ourselves as members of this committee that the definition that you proposed to us is a definition that would offer to the court enough guidance to be able to come to a conclusive definition that would stand the test of practical experience in the field. That's essentially the first question I have in relation to this bill.

Mr. Garrison: The conference produced a document known as the Yogyakarta Principles, which I would be happy to provide to the Senate committee for its deliberations.

Senator Joyal: My second question is in relation to the obligation that Canada took on when we signed the additional protocol of human rights that complements the Universal Declaration of Human Rights. Canada signed it and is bound by the definition. Is there any protection in that international covenant that you would feel would be helpful to determine the protection of transgender people?

Mr. Garrison: What I would go to is the statement by the UN Secretary-General, Ban Ki-moon, who has made very powerful statements on the fact that gender identity is included among human rights protected by the international covenants. There may, in all covenants, not be specific language, but certainly the United Nations Secretary-General and the Human Rights Council in its resolution that was just passed last month expressed their view that it's the obligation of members to protect people on the basis of gender identity. The UN Human Rights Council resolution was very specific and included the words ''gender identity.''

Senator Joyal: Could you provide that declaration of Secretary-General Ban Ki-moon and the other elements you were referring to?

Mr. Garrison: I would be happy to.

Senator Joyal: In your presentation you referred to the fact that some European countries have similar protection in their national legislation, and you mentioned France and some other members of the European Union. You know certainly that Canada will sign in principle an agreement with the 28 European Union members through a trade deal that the Prime Minister rightly, in my opinion, celebrated last week because it's a major achievement, but there is no doubt that trade carries also a lot of other elements in terms of exchange, and it's not only limited to selling goods. When you bind yourself intimately in terms of trade, you bind yourself to a lot of other additional elements, like immigration and so on.

As you mentioned, this bill would have an impact on the immigration law, for instance, as you said, a request of a passport or check of security in the entering of a country. Did you look into any of those European countries where there might be jurisprudence or case law whereby that protection has been interpreted by some European Union country?

Mr. Garrison: I have not looked at European case law, no. It's interesting you connect to trade, because when you look at the list of countries I talked about, many of those nine countries might be surprising to people. It's not countries that are always looked upon as being at the forefront of human rights struggle, but they have applications outstanding to join the European Union, and the European Union has made it a condition of joining the European Union to have broad protection of human rights. That has been a strong motivation for some of the Eastern European countries to add additional human rights protections to their codes.

Senator Joyal: To come back to Canada, you've mentioned that five provinces and territories already have protection in their provincial legislation or human rights code. Do you have any case law in those five jurisdictions about the implementation of that protection? In other words, has that protection been tested in their human rights commissions?

Mr. Garrison: Anticipating such a question, I looked most recently at Ontario.

Senator Joyal: It's an easy one.

Mr. Garrison: There have been two cases that have proceeded through Ontario legislation. The one I'm most familiar with is a case in which an employer was held responsible for failing to create an accepting climate in a place of work, which resulted in a person being dismissed. The transgender person was identified as the problem. The Human Rights Commission of Ontario said, no, the employer and the workplace atmosphere was the problem, and so a significant fine was levelled against an employer for failing to address the problem of the atmosphere in the workplace.

Senator McIntyre: Thank you both for your presentations. As you know, other bills on the issue of gender identity and gender expression have been introduced since 2005, three calling for amendments to both the Criminal Code and the Canadian Human Rights Act and the other two calling for amendments to the Canadian Human Rights Act only. I'm referring specifically to Bills C-276, C-389, C-326, C-494 and C-392. My understanding is that those bills either reached the stage of first, second or third reading or died on the Order Paper.

My question is this: What is the major difference between those bills that have died on the way and this bill?

Mr. Garrison: I think that the difference is found in the compromise that was reached between members of the Conservative caucus and me. This is a narrower bill than the previous bills that were presented.

Senator McIntyre: You mean separating ''gender identity'' and ''gender expression?''

Mr. Garrison: Yes, ''gender expression,'' which is a broader term. There is no dispute that it's a broader term.

Senator McIntyre: Do you feel that the term ''gender identity'' includes the term ''gender expression?'' Are you satisfied that it covers that situation?

Mr. Garrison: What we're talking about here is the definition that we placed in the bill. I have confidence that most of the discrimination that's faced will come under the definition of ''gender identity,'' but there were some aspects of ''gender expression'' which may not be included.

Senator McIntyre: We have two amendments to the Canadian Human Rights Act and amendments to the Criminal Code. The term ''gender identity'' is added to two sections of the act and is also added to two sections of the Criminal Code: section 318, ''identifiable group''; and section 718.1, the sentencing principles. On top of that, ''gender identity'' is defined, which wasn't the case before.

Should the bill define ''sexual identity,'' or should it be left to the courts to give an interpretation on a case-by-case basis?

Mr. Garrison: Again, my personal opinion is that there was no necessity for a definition, just as ''national origin,'' ''age'' or other terms are not defined before going to courts. However, I have accepted the compromise we reached. I still think that this is a good bill; it's a good definition, and this will not have a negative impact.

Senator McIntyre: Whether the bill has a term ''gender identity'' or not, the courts will be giving an interpretation along the way anyway. Thank you, gentlemen.

[Translation]

Senator Dagenais: I thank the chair and our two witnesses. When I was the president of the Sûreté du Québec police officers' union, which is kind of a macho environment, one of my officers came to see me to tell me that he wanted to undergo a sex change and become a woman. He wanted to know that his union would protect him during his transformation. I didn't have to intervene because his employer, the Sûreté du Québec, gave him all the support he needed.

You highlighted the commitments that support the underlying principles of your bill, but to me, there's often a difference between the will to change things and the will to take action. What should happen in a case like the one I just mentioned? We know that similar cases can result in conflict situations.

Can you tell us your views on that?

[English]

Mr. Garrison: We have seen the provincial human rights legislation in five provinces and the Northwest Territories, and we have not seen anything that I would describe as major conflict. There are cases that will, of course, make their way through, as there are in any area where we have protection in human rights codes against discrimination. People who feel they have been discriminated against will take advantage of that protection that's provided by going to a human rights commission.

Yes, case law at the commission level will work its way through, but I haven't seen any major problems in any of the provinces in implementing the legislation.

Senator Mitchell: Mr. Garrison mentioned previous cases. There is a classic case in Ontario — and the witness will be here — about Jesse Thompson, a young trans boy hockey player who has gone through the process through the Ontario Human Rights Commission and has been allowed now to change with his buddies and his teammates in the hockey changing room. It was a process facilitated by the structures that were in place, and it underlines that this can be done very effectively and without conflict. In fact, it's exactly what this kind of legislation assists. It assists in solving these problems without conflict; there is a place to go.

Senator Frum: Thank you to the witnesses, and a special welcome, Mr. Garrison. It's nice to see an NDP member in the Senate of Canada. It's not so bad.

My colleagues have covered the issue of the definition, but I want to ask you to amplify a bit. You said that in terms of the compromise that was reached in the House of Commons, there would be some aspects of ''gender expression'' that would now be excluded from this definition. Can you amplify on what you think an example of that would be?

Mr. Garrison: I guess I'm reluctant to do that, in the sense that these are questions that will eventually be settled in the tribunals and in the courts. I don't wish to suggest in testimony in the legislative body anything that might encourage or discourage inclusion or exclusion at this point.

Senator Frum: The definition as it is written now in the bill is actually very broad. It is the individual's deeply felt internal and individual experience of gender which may or may not correspond with the sex that the individual was assigned at birth.

I'm struggling to understand the compromise because, with ''gender expression'' and ''gender identity'' in that context, it would seem that you could apply the same definition to each.

Mr. Garrison: Those who have expressed concerns to me are those who are concerned about the phenomenon of cross-dressing. Someone who is clearly of one gender but likes to wear clothing of another may not be covered under this definition because the definition focuses on gender and the deeply held personal feelings of belonging to that gender, which someone who cross-dresses does not have. It is an example that people have raised with me in their objections that feel they will not be included. I'm not going to express a personal opinion on whether that should or should not be included. I think it's likely not to be included by the definition.

Senator Frum: That is helpful; thank you. Are you aware of any cases that would fall within the federal human rights jurisdiction that failed to find a remedy because ''gender identity'' was not listed as a ground for discrimination?

Mr. Garrison: I'm not aware of any such cases, but the Canadian Human Rights Tribunal witness, who I believe is the one who made this point, stated that when you have a complaint based on a ground which is listed, your legal case starts from that point. You do not have to prove that your case is protected. It creates an extra legal obstacle for transgender people who must first demonstrate that they somehow have some grounds in the bill that will allow them to bring the case forward. It creates an initial legal obstacle that isn't there if something is listed.

That said, I don't know of any cases where it has failed.

Senator Batters: Mr. Garrison, many would argue that this type of legislation dealing with the human rights code is not required. There are many Canadian provinces that don't list ''gender identity'' as a prohibited ground of discrimination. I would point you to Saskatchewan, which doesn't. There was a recent case which received significant media attention in Saskatchewan — that's where I'm from — where a transgendered woman went to a bridal shop. You're probably aware of this case, are you? She went to the Saskatchewan Human Rights Commission. She wasn't served in the bridal shop and may have been asked to leave the store or something like that. Anyway, her claim was found to have been well founded. Saskatchewan does not have ''gender identity'' in their Human Rights Code. As prohibited grounds of discrimination, they have sex and sexual orientation. This person, within that scope, was found to have a well-founded claim for which she received some compensation.

Given that, how do you respond? Many provinces, most, in fact, actually, don't have gender identity specifically as a prohibited ground of discrimination; and these provinces seem to be dealing fine with these cases.

Mr. Garrison: I'll start by saying I've had the pleasure of meeting the bride in question. The bride now has a very good relationship with the bridal shop owner. It's a very positive example of the social change that can happen.

The incident might not have happened if Saskatchewan had gender identity listed as a prohibited ground of discrimination, because people would be aware that this kind of discrimination is not allowed and not acceptable. That's what I call the denunciation function. Had it been listed, it might have been avoided completely. Now, the owner of the bridal shop has changed her opinion and says this would not happen in the future — a very positive case.

Senator Batters: There are many cases of well-known prohibited grounds of discrimination where those types of claims still occur.

Mr. Garrison: Yes, and I did say ''may,'' and I'm not saying 100 per cent it would have. Knowing the players in this case personally, it has had that impact of positive change. There is a widespread awareness in Saskatchewan, which you're actually testifying to yourself, that while Saskatchewan does not specifically list it as a ground for discrimination, it does prohibit this kind of discrimination.

Senator Mitchell: If I might add to that, beyond the specific legal imperatives that will be incumbent in this legislation and driven by them, there is more than that. This is bigger than that. As Mr. Justice La Forest of the Supreme Court of Canada said:

. . . a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people ''invisible''.

MP Irwin Cotler said in the House of Commons:

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

Even if it didn't make that much legal difference, which is the thrust of your argument, it makes a huge amount of difference in recognition and a huge impact in its statement about what we are as Canadians and how every Canadian should have the right to be who they are and to be included.

Senator Batters: I would note that Mr. Justice La Forest said that in 1999, 15 years ago; and a Liberal government was in power for about seven years after that.

Senator Mitchell: We should have done it; and it has taken us 15 years to catch up.

Senator Batters: The Library of Parliament prepared us a briefing note, as they always do, for this bill. It was prepared and sent to us only a week ago. That briefing note says that as a result of recent developments, three provinces and one territory currently list gender identity among prohibited grounds of discrimination under human rights law, although none defines the term. They go on to quote from those particular provinces' and territories' acts. We also received a Canadian Bar Association letter from last year that echoes the information of three provinces and one territory. Yet today, you talked about five provinces and one territory.

The Library of Parliament briefing note also says that in other provinces and territories, gender identity and/or gender expression may be implicitly included under enumerated grounds, notably sex, as a matter of policy and/or as a result of court decisions. Are you including those provinces and territories under the enumerated provinces that you talked about? Or is the Library of Parliament incorrect in the information that they've provided to us?

Mr. Garrison: Two provinces recently amended their human rights codes to add gender identity specifically: PEI in December 2013, and Newfoundland and Labrador, also in 2013, but I'm not sure of the month. I believe it was June 2013 when the Conservative government in Newfoundland and Labrador amended their legislation.

Senator Batters: It's not up-to-date.

Mr. Garrison: It's a bit dated.

Senator Batters: We don't have that, so could you provide us with the copies of that legislation from those two provinces?

Mr. Garrison: I don't have it, but perhaps you could ask the legal staff of your committee to provide it.

Senator Batters: Could you get it? It's your bill, so I think it would be helpful if you could get that for us.

Mr. Garrison: Maybe Senator Mitchell could, but it's public record and has been gazetted in the two provinces. It's not something that's difficult to find.

Senator McInnis: This is my first effort at the bill. Senator Mitchell, you mentioned that without this there would be an invisibility of those individuals. When I read this last night, I thought I would like to have you distinguish between discrimination on gender identity and discrimination on sexual orientation. Could you do that? You said there're no legal obstacles that you are aware of with respect to gender identity being absent from legislation. Have the courts dealt with many cases such as this — that it would be helpful if it were there? You said ''obstacles.'' Let's go back. Let me display my perhaps ignorance with respect to this as a freshman to the bill. Distinguish for me between gender identity, sex and sexual orientation, because I think the courts would be quite open-minded on this.

Mr. Garrison: At the risk of oversimplifying by trying to do it quickly, the basis of sex is about the physical characteristics of the person. The sexual orientation is about who the person is sexually attracted to, which has nothing to do with the physical characteristics. Gender identity is how you perceive yourself, your gender: What do you feel is your gender, male, female or some variation of the two? So those are three distinct legal categories. They've always been treated as three distinct legal categories. The argument here for adding gender identity is that those who are discriminated against on the basis of gender identity shouldn't have to argue under some other ground that they're being discriminated against. It should be a clear legal case just as it is for sex and just as it is for sexual orientation now that you can make the case based on gender identity.

Senator McInnis: Are you saying that you could not make the case now as the law is?

Mr. Garrison: As a transgender person, where it is not included in the human rights code, you must first argue that your discrimination is like one of the grounds listed. You have to say that being discriminated against as a transgender person is like sexual orientation or is like sex discrimination. You have to first make a case before you can make your case, if you like. You have to say, this is why what has happened to me is like what's already there, where no one else has to do that. If you're discriminated on the basis of religion, you don't have to go in and say, this is similar to discrimination on the basis of national origin. You say I've been discriminated against on the basis of religion, which is a protected ground.

We're arguing it would be simpler and in the future would guarantee a comprehensiveness, which may not be there. We don't know whether every case of discrimination based on gender identity would be protected, and that you would be able to argue it's a similar ground. We don't know that, so putting it in closes the door.

Senator McInnis: You are saying this simplifies it.

Mr. Garrison: Simplifies and clarifies. Senator Mitchell was very eloquent in saying that it also serves to states our values as a country. We say that religious discrimination is not acceptable, discrimination on the basis of national origin is not acceptable, and we also publicly say that discrimination on the basis of gender identity is not acceptable.

Senator Mitchell: Let me give you an example of where this might make a difference. It's an interesting and startling realization that I came across this morning. There is a form that transgendered people must sign when they get a passport if the gender on their passport will be different than the gender on their birth certificate, remembering that in most provinces you can't change the gender on your birth certificate. That passport form says that they will not be able to make demands on the Canadian government if they get in trouble with foreign officials. Every other Canadian can make demands on the Canadian government if they get in trouble with foreign officials when they're traveling. I don't see how that particular item would be addressed easily under the definition of ''sex'' or ''sexual orientation'' because it is neither of those two. It wouldn't apply in the case of sex or sexual orientation. It applies only in the case of gender. This would give them more force to make the case that in fact they shouldn't be disenfranchised as Canadians when they travel. That's a fundamental right. It's a right in our Constitution to mobility. It's a fundamental right, and this would defend that.

Senator Baker: Just to reinforce, Mr. Garrison, you're from British Columbia?

Mr. Garrison: That's right.

Senator Baker: Of course, just as an illustration of the numbers of cases where people have had to go to the courts and the B.C. Human Rights Tribunal, I have five cases here in which the tribunal said yes, but after a lot of argument. The Superior Court of British Columbia examined the question and said, yes, you are right, Mr. Garrison, in exactly what you are saying. A lot of litigation has to take place. You are suggesting that we put in what is recognized by the courts and the tribunal in your province. It is not in your B.C. Human Rights Code, but it's in the law in British Columbia. I noticed in B.C. the Vancouver teachers' federation have gender identity in their collective agreement. All of these cases just reinforce the point that even in provinces that don't have it, the necessity is there to put it in so you don't need all this litigation. That's all I wanted to say. I don't know if you want to comment on it.

Mr. Garrison: I think that's quite true. You are putting transgendered people on the same grounds as everyone else. It's not a greater right than anyone else's. It puts the same legal footing under their case that everyone else has.

Senator Mitchell: In effect, it would serve to reduce red tape.

Senator Baker: Yes. As far as the definition is concerned, you are absolutely correct. It is a strong, subjective brain matter versus the other elements that you referred to, and it has been defined by many medical doctors who have appeared before the superior courts to support your case.

Senator Plett: Senator Mitchell, I'll ask you a question here because the other witness will simply just say, ''You're wrong.'' Hopefully you won't do that and would rather answer the question.

I have no problem with people that identify as women when they're biological male in housing and employment. They need to be treated absolutely equally. They are not encroaching on somebody else's rights by doing that.

The issue I have is that many elements of society are separated based on sex and not on gender — shelters, change rooms, bathrooms, even sports teams. They are not separated based on internal feelings but on sex, physiological and anatomical differences. Whether or not we like the fact that men and women are biologically different is irrelevant.

I want you to tell me, Senator Mitchell, when you say that 0.3 per cent of society is trans, how their rights can trump the rights of my five-year-old granddaughter walking into a change room, a biological male walking into a bathroom. You say we have gender-neutral bathrooms, and I support that. I support that if we have gender-neutral, if they are closed and they are not stalls like we have, but they are closed, if there is one bathroom, like on an airplane. There is no danger of somebody else walking into the bathroom on an airplane when I am in there. How can this 0.3 per cent of society trump the rights of my grandchildren, my granddaughters?

Senator Mitchell: First of all, let me say that the gender-neutral bathrooms I'm talking about in the Edmonton Public Schools Board are not single-door rooms. It goes beyond that, and it works very well.

Second, I have children too, and one day I hope to have grandchildren. Nobody is saying that one should trump the other.

First, there is no evidence of there ever being a problem in this regard. It's purely hypothetical. What I know for sure is that you cannot diminish the rights of one group of people on the possibility or in the anticipation of the criminal intentions of another group of people. To draw that further is to say that if that were the case, then White males wouldn't be allowed to go into corner stores because corner stores have been robbed by White males. The problem that you mention is purely hypothetical, literally almost purely hypothetical.

Second, it's not as though trans people want to be exposed or want to be making an issue of themselves. Quite the contrary; they don't want to be in these circumstances to be exposed.

Third, that is criminal activity. That criminal activity hasn't been related to anybody in any way, in any evidence, in anything supported other than a Fox news report, and who could believe that —

Senator Plett: I could.

Senator Mitchell: Okay. — in any way to empirical evidence of it being a trans person. It could happen in any event, and it won't be facilitated or exacerbated by virtue of this legislation. If that were the case, it would be happening in the five or six provinces we have talked about.

Senator Plett: If my five-year-old granddaughter doesn't want to be in a bathroom with a biological male in the Edmonton school that you are talking about, what is her option? She doesn't want to be there. What's her option?

Senator Mitchell: The Edmonton Public Schools Board has a policy to deal with that.

Senator Plett: What is it?

Senator Mitchell: In many cases, they have actually taken the staff washroom, where it is one door, one room, and she could use that, probably, if that were the case.

Senator Plett: She would have to use that rather than the trans person.

Senator Mitchell: No. I'm not exactly certain how that would be implemented, but the fact is that policies have been implemented and have been worked through in many organizations, including the Edmonton Public Schools Board, which I went to as a student, and the fact is that that has worked out. This legislation will not make that more difficult. It will facilitate the way in which it can be worked out and it will motivate it to be worked out properly.

Senator Plett: Thank you, chair.

Senator Joyal: I would like to come back to the general perception of the public and the confusion that exists in the perception of what a transgendered person is versus what a transvestite person is. I think people confuse the two of them. Since we are dealing in this bill with transgender, could you explain to us, in your words and experience, the differences we should understand between the two?

Mr. Garrison: I would say, Senator Joyal, that you should call witnesses who are specialists in gender identity and all its aspects, and not me, to answer that question. It's a very specific question.

I'm having some trouble going ahead because of Senator Plett's statements. I'm going to, with the indulgence of the chair, go back a second, even though I was not asked specifically.

Where you are mistaken, Mr. Plett, is what if I said to you I have someone who does not wish to go into a bathroom where there is an Asian person or a Jewish person? To me, it is the exactly same kind of discrimination. For you to say, ''I don't wish to be'' —

Senator Plett: It isn't the same to me, and I didn't ask you the question.

Mr. Garrison: I understand that, but you did refer to my calling you mistaken, and I think that's where you're mistaken. Discrimination is discrimination, and that's what we're seeking to correct in this bill. Some people have been excluded from the protections that all other people enjoy.

In terms of specifics, talking about whether someone is transgendered, gender-variant, intersex or transvestite, I think you need a better expert than me on those questions.

Senator Joyal: Are you aware that California has adopted a law in relation to transgendered students to choose bathrooms and sports teams?

Mr. Garrison: Yes, I am, and the University of California, most recently, I believe it was just two weeks ago, announced their policy that they would be introducing, I guess what I would call transgender-friendly policies, including restrooms and change rooms for all 10 campuses of the University of California. They do not find this a controversial question.

Senator Joyal: What prompted them to adopt that law? Because it's a law — it's not only a policy, the way I understand it; it's a new law and not just a guideline or invitation to adjust in a certain context.

Mr. Garrison: I'm sorry. I don't follow California politics closely enough to know what happened in that case.

Senator Batters: I want to go back to the definition, and I want to read into the record the definition that you've included in your bill. We've talked a lot about definition, but those listening or those who don't have a copy in front of them won't know it. It says:

In this section, ''gender identity'' means, in respect of an individual, the individual's deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

You've chosen to include that very expansive definition rather than simply just have a prohibited ground addition of gender identity. As per the information I had, those three provinces and one territory only have just gender identity; none of them define it. I don't know, because I haven't seen the other two provinces, but is that the case with the other two provinces, too — Newfoundland and P.E.I.? Do either of those have a definition, or do they just say ''gender identity''?

I would ask either of you to acknowledge that it is quite an expansive definition. Please chat about that for a bit.

Mr. Garrison: If you go back to the original bill I introduced, it simply had ''gender identity'' and ''gender expression'' without definitions. A definition was added as a result of my sitting down with members of your Conservative caucus in the House of Commons, and they asked for a narrower definition than —

Senator Batters: It was after you decided to take out ''gender expression'' that you wanted to have an expansive ''gender identity'' definition included. Is that why?

Mr. Garrison: These are not mine. These are a process of compromise with the 18 members of your caucus.

Senator Batters: Compromise involves you, too.

Mr. Garrison: It does.

Senator Batters: You're the sponsor of the bill.

Mr. Garrison: We agreed to take the international jurisprudence from the Yogyakarta Principles and use that. I found that acceptable and 18 Conservatives found that acceptable.

I would be much happier if the bill simply said ''gender identity.'' To me, that was fine and, in the normal course of jurisprudence, the courts would put the parameters on that.

It was a product of this compromise and the concern that it was too broad that a more specific definition was written in.

The Chair: Thank you, gentlemen. We very much appreciate your appearance here today and your assistance with our deliberations.

For our second panel, I'm pleased to welcome and introduce Gerald D. Chipeur, Partner, Miller Thomson LLP; and from Siksika Health Services, Suzanne McLeod, who is the lead in special projects. I should mention that Mr. Chipeur is legal counsel to Ms. McLeod's organization.

Do you both have opening statements?

Gerald D. Chipeur, Partner, Miller Thomson LLP, as an individual: Yes, we do. Thank you.

The Chair: Ms. McLeod, would you like to lead off? The floor is yours.

Mr. Chipeur: If it's okay with the chair, I'll go first. It's usually ladies first, but she's deferring to me. Thank you very much.

The Chair: Please proceed.

Mr. Chipeur: My name is Gerald Chipeur. I'm a lawyer for Siksika Health Services in Alberta. First, let me state that the purpose for our attendance this morning is to address the need for clarity on the part of health administrators and policy-makers in connection with the amendments proposed to the Canadian Human Rights Act in Bill C-279. In particular, we share the concern expressed on page 2 of the May 6, 2013, letter from the Canadian Bar Association to the Senate. I'll just read from page 2, the second sentence in the second paragraph on that page. The Canadian Bar Association said:

Although gender identity is currently read into existing human rights legislation, there remains a perception of uncertainty in the law, leading to a greater chance of violation as well as unnecessary and costly litigation.

As the Senate considers expanding the Canadian Human Rights Act to bring clarity with respect to the meaning of gender, and the extension of gender to include the mental state of the individual, it is important to clarify another part of the act, and again, it's for the reasons set forth by the Canadian Bar Association that I've just read. The section that I referred to is section 15(1)(g) of the act. I'll just read section 15(1)(g) to you. It starts out with section 15(1) at the beginning:

It is not a discriminatory practice if . . .

(g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.

There are a number of issues that would logically fall under section 15(1)(g) pursuant to section 15(2). In order to understand the kinds of bona fide actions that could be included in 15(1)(g), one is required to go to section 15(2) of the act. Section 15(2) reads as follows:

. . . for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

However, those three words are very broad and they are uncertain, and while this Senate committee is considering bringing clarity to the words ''gender'' or ''sex,'' this committee should also consider adding to and bringing clarity with respect to section 15(1)(g) and section 15(2) so that we, in the words of the Canadian Bar Association, are not faced with unnecessary litigation and cost because of the application of this act to the health care facility that we provide in and on the Siksika Nation reserve.

My client cannot afford to expend scarce health care dollars on litigation to clarify the meaning of these three words. This committee has the ability today to bring that clarity so that there is no necessity to reach out to the courts and human rights tribunals in order to understand what those three words mean for a women's shelter or a health care provider on a reserve in Canada.

Therefore, we ask this committee to consider that it is necessary to ensure that individuals may serve and be served without fear of further trauma, as will be addressed by my colleague Suzanne McLeod. I don't want to go into her testimony too far, but I do want to say that we want to provide services to everyone, but we want to provide those services on the basis of what health administrators believe is in the best interests of each patient, client and individual served within the health system.

Our concerns are with the delivery of health services that are funded by or delivered in the context of federal jurisdiction. First Nation reserves and military bases are just two such organizations that come to mind.

However, in closing, this committee should also ask itself how this bill will impact in other areas, and in particular the area that was addressed earlier today, and that is sporting events and athletic teams. Based upon my reading of section 15(1)(g) and 15(2), if individuals used this new Bill C-279 to join a team that is not of their gender, Canada would be excluded from the Olympics and from Pan Am Games and from other games such as the Commonwealth Games.

It is, therefore, my suggestion that this committee think about whether or not further amendments are necessary in other areas that are not related to the issue of health that we addressed with you today.

Those are all the submissions I have. I would like to turn the time over to Suzanne McLeod at this time.

Ms. McLeod: Good morning, senators. I am special projects lead for Siksika Health Services. Siksika Nation is in Blackfoot territory. We're about 80 kilometres southeast of Calgary.

Siksika Health Services operates a state-of-the-art community health centre that offers clinical, primary and community-based care.

One of the projects I am responsible for is developing a proposed transition house for women and children on the Siksika Nation.

A transition house is different from strictly being a shelter. It allows us to offer services to persons under the age of 18. This is important because many of our victims are under the age of 18 and we have a gap in being able to protect these persons. Our overall population is between the ages of 16 and 24. Sixty per cent of our population is in this age group, so we have an increasing dilemma in terms of intergenerational trauma and family violence.

As we know, reserves are federal jurisdiction. However, we do receive funding from both provincial and federal dollars.

We know that 95 per cent of transgender individuals are male. That's the same situation on Siksika. We have a relatively high visible population. When I say ''visible,'' we have 6,800 people that live on-reserve. Of those 6,800, roughly 1 per cent of the population is transgendered. ''Visible'' is the important word here. People don't move from the reserve; it is a small-town environment, but because of the reserve structure, people inherently don't move, so we have generations and generations. When we talk about ''visible people,'' it's because people know who people are, what they are and their lifestyles.

Coming from experience in offering community-based services to individuals and working with the RCMP and all the different services that we offer, our vision is to have a community-based facility that offers services to women, children and transgendered individuals. However, we would like to have this housed within the same facility but with separate areas. I'll explain that.

On-reserve, our reality is that we have extremely limited funds to set up any type of facility. We have been working for the past up to five years trying to get a shelter put on the reserve. We know that we have a moratorium coming from one of the departments, so that fairly restricts our access to resources. In reality, if we want to be able to say, ''Okay, we want a facility for transgendered individuals, we want a facility for women and children and we want a facility for men,'' that just isn't going to happen.

We don't want to turn away transgendered persons coming to our shelter and our transition house simply because of their gender at birth. We don't want to do that. But we also recognize the fact that we have to protect women and children. If we turn away individuals like that, which we have in previous situations, this creates further problems for that individual, as well as the community.

Now, our approach aligns with cultural constructs to offer holistic, multidisciplinary and long-term supports to both victim and perpetrator. The lack of clarity within the legislation makes it difficult for us to establish appropriate services and legal and ethical policies. The clarity would help us to make those definitions and policies at the administrative, front-line level.

Currently, we know that our male victims are sent off the reserve to male shelters where they're frequently re-victimized. We simply want to have the choice on-reserve to have a facility that we can offer to both transgendered individuals and to women and children in separate areas.

We know that transgendered individuals — and this goes back to the reserve setting. The reserve setting is such that people don't move. Transgendered individuals are more likely to try to stay within the community, so we need that mechanism to be able to offer them the same supports and the same protection that all other individuals have in these circumstances.

At present, the funding request focuses on the great need for a safe place for women and children. It's hoped that in the future there will be a possibility for services focused on men and the transgendered community. Our position is that the legislation and the initiatives to ensure that transgendered individuals do not suffer discrimination is a positive development. We don't want to turn these individuals away because we are turning away part of our community.

As the Senate considers this bill, it is our view that clarity is required. This cannot be overstated. Clarity is required to ensure that we serve and protect one vulnerable group while not traumatizing the other. Therefore, it is our recommendation that women's shelters be allowed to treat women without the presence of men, regardless of their own personal gender identity. We make this recommendation because of the actual trauma that will be experienced by vulnerable women if they are confronted with the presence of men in the period of initial care within a women's shelter.

This recommendation is based upon the actual experience of the women's shelter located on the Blood Reserve just south of Calgary. When men were present at the women's shelter, the women and children experienced considerable additional trauma in addition to the initial incident. We fully believe it is possible to provide separate treatment facilities for men, women and transgendered individuals within the same facility, and the bill should be amended to allow health administrators to provide service in a manner that helps all and harms none.

The Chair: Thank you.

Senator Baker: Thank you to the witnesses for their presentations.

First to Mr. Chipeur, who is a very well-known litigator — he's reported in case law in about a hundred reported cases and he has appeared before the Supreme Court of Canada in some 20 or 30 instances on very interesting subjects, some of them dealing with similar matters but not exactly on point.

However, with respect to his reading of the letter from the Canadian Bar Association, I took that letter from the Canadian Bar Association to be a complete endorsement of the bill that we have before us. The portion of the letter that was read pertained to the existing circumstance in which the Canadian Bar Association says there is a perception of uncertainty in the law right now, without this bill, leading to a greater chance of violation as well as unnecessary and costly litigation.

I took that to mean that this bill, according to the opinion of the Canadian Bar Association, will now solve that and give us a definite path for the courts to follow.

Am I wrong in my impression that you were using that quote to say that that's what would happen if we passed the legislation?

Mr. Chipeur: What I meant to imply and to say was that as you respond to the request for clarity that you not stop halfway. In other words, in order to achieve the objective — and the objective is no litigation and no uncertainty for health administrators — it is necessary to ensure that we define exactly when an individual is entitled to be present as a man having an intense feeling of being a woman. When can they impose that upon a health administrator and when can they not?

We are suggesting that if one wants to be treated as a woman in a regular health care facility, there is no problem. But if that person comes and presents to a women's shelter and there are three doors, one that says ''men,'' one that says ''women'' and one that says ''transgendered,'' they may not come to the door that says ''women'' and present themselves as a woman and require treatment.

We're saying it would be very easy to say in section 15(1)(g) that health, safety and cost in the context of women's shelters means this. If this is just theoretical, we might determine leaving 15(1)(g) to answer it, but it isn't theoretical. We not only have case law, but we have the experience in our communities where this issue is a live issue, and because of the 1 per cent of the population that we know currently exists within our community, there is going to be a likelihood of litigation.

This Senate has the ability to avoid that litigation by saying to the health administrators, ''This is what health costs and safety means in this particular case.'' Because we know it exists out there — there is no doubt that it will be an issue. Therefore let's take this issue away. Let's just have an amendment that says this will never need to go to court because the Senate has made it very clear that this is the kind of thing that is discrimination, and this is the kind of thing that's a bona fide attempt to protect women from being re-traumatized in an abuse situation. That's all we're saying, and it just goes as far as that. I think that is a fair characterization of the CBA's concern about costs.

I agree that they didn't have it in mind when they wrote that letter. I'm using their argument to say let's not stop halfway. I'm not using their argument to say we shouldn't pass it. I'm saying as we pass it, and as we recognize all human rights, which we should, we should be clear because, in fairness, this bill is very detailed. This goes into great detail about what and when it is to be applied. Therefore, because we're taking such care to be detailed about when it applies, I'm suggesting we take the same detail and apply it to the exceptions that we now all know need to be there based upon the experts' testimony.

Senator Baker: Counsellor, even with this legislation, the court will go back to existing case law and perhaps conclude, as the Supreme Court of British Columbia concluded in Kimberly Nixon v. Vancouver Rape Relief Society, involving a similar circumstance, and in Waters v. BC Medical Services Plan, and in a case involving British Columbia Ferry Services Inc., and in Barker v. Hayes, British Columbia Human Rights Tribunal, in which similar but not on point, not exactly as you put it, but similar circumstances existed — in all cases the Supreme Court and the tribunals ruled that there was a violation of the very thing, gender identity, by identifying that as being a part of sex, as in the Human Rights Act.

I suppose what you're asking us to do is to close a door that has already been opened in existing jurisprudence.

Mr. Chipeur: There is no doubt that gender identity and the issue of what is gender has been addressed by the courts, and it's pretty clear what gender and what sex mean in the legislation. We don't know what this new bill will mean. We don't know how the courts will take it. We don't know if this will narrow it or whether it will expand it, but we do know that it is a new statutory right that is being put in to clarify what has been so far just read in. As we do that, individuals will no doubt look at that in our community and say, ''That applies to me.'' They may come to that women's shelter and say, ''It says women; I'm a woman,'' even though they may be male.

We know that is a possibility because it has happened before, so our recommendation, because of the fact that it has happened before, is let's take that possibility out of the equation because we all know that if we're going to look at the needs of the women who have been traumatized, certainly safety and certainly health are concerns that justify this kind of clarification.

While you have the bill before you and you have the opportunity to clarify, our recommendation is that you do clarify, but it's just our recommendation. It is our recommendation because there is this focus on it, and we do know that if this clarification isn't there, the only way that we're going to really know whether health and safety cover us is after litigation where the Human Rights Commission gets government funding and the health facility has to pay for their lawyers out of money that would otherwise be spent on health care.

Senator Plett: Thank you to both witnesses for your testimony. Ms. McLeod, could you elaborate a little bit on how at your transition centre sharing a facility with a biological male might negatively impact a female victim of trauma, especially if they were in the same room or in the same wing? You've suggested different wings, so I'll ask you that, and then I'll ask you one more question immediately.

Would you be open to some form of an amendment that would give you the flexibility to determine in what wing every person that comes to your facility should be placed in based on gender, as Mr. Chipeur has pointed out, male, transgender, female? If somehow this bill would be amended to give you that flexibility, would you be supportive of that?

Ms. McLeod: I think, yes, that's exactly what we're talking about, that flexibility within the bill for us as administrators at the front line, community based, to have that choice to be able to offer services to all of the community members while staying within the legal policies of the Human Rights Code. Yes, I would definitely support an amendment.

Senator Plett: Could you share a little bit how it might negatively impact on a female victim in your facility if she may have been abused by a male at home or whatever and she would have to share a facility?

Ms. McLeod: Initially when women come into a shelter they're highly traumatized by that point. They come in individually by themselves or they come in with their children, and it's frequently the male or their partner who inflicts that violence on them. So they're coming to the shelter in a state of high intensity that the point. Within that first week there is a period of stabilization — within the first two weeks is a period of stabilization. That's why typically shelter environments go from 14 days to 28 days, and then the client leaves.

So it's important that within that first 7 to 14 days that individual does not come in contact with another male person because the male is typically the perpetrator. That just re-traumatizes the experience. Even if that male is kind, is not the person who directed the violence at them, there is still that deep-seated association with the violence. So we have triggers that build around that.

Senator Plett: Mr. Chipeur, if this law passes, could it be considered discrimination if the Siksika Health Services wanted to separate biological males, trans women, from biologically female victims of violence and abuse for safety reasons, or at least to maintain feelings of safety for the women in the facility? If the bill passes in its present form, could they be considered as being discriminatory?

Mr. Chipeur: If a court were to accept the testimony of Suzanne McLeod, then section 15(1)(g) would protect a facility from a claim of discrimination, but that would only be after a hearing; and based upon what I heard this morning from the previous witnesses, there is clearly a position that the other side would take on this that it is not a safety issue.

There will probably be two sets of witnesses who will come in. One will be a witness like Suzanne McLeod who will say women need to be protected from even being in the presence of a kind man. There will be others who say that is not true, that it is possible for someone to be treated in safety with the presence of men.

I would rather have this body, the court of the Senate, make the decision, accept Suzanne McLeod's testimony and take away that uncertainty rather than trust that if we go to court where it's always a 50-50 proposition, where you can always find an expert to argue every point. It's not that this is not consistent with the current intent of the act. What we're asking for is not outside the intent of the act, but since we're in the process of bringing clarity to the act we urge that this clarity be brought as well.

Based upon the position that I've heard this morning, it is unlikely that Suzanne's position will be accepted as the correct analysis of what is required for health and safety.

Senator Frum: To continue on that point, you say we should take away the uncertainty. How specifically do you propose that we achieve that in this bill?

Mr. Chipeur: One could bring in an amendment to section 15(1)(g) and 15(2) to specifically identify those areas where there is a legitimate and reasonable health or safety concern, and we would propose that that would be, in particular, in potential abuse situations. It should apply across the board, whether it's transgendered, women or men, that individuals who have been abused in intimate situations may be treated — they don't have to be — if a health care provider chooses to, separately.

I think it would be easy to put together an amendment that would achieve that objective to give the choice to the health administrator. Of course we can't require government to spend money on health care and require that they provide a men's shelter if they provide a women's shelter. But to the extent that they choose to serve women, that they may say men or transgendered, self-identified women who are male may not be here.

If that was an amendment, I think there were probably other cases where this committee, and the Senate, may decide are also situations of vulnerability. If you use that as your test, where are individuals going to be vulnerable and feel vulnerable in the presence of the other gender because of something that's happened or traditionally or historically has happened. If you were to identify those, I believe that you could achieve that objective.

Senator Frum: Specifically you're saying medical facilities and shelters.

Mr. Chipeur: That is our concern.

Senator Frum: Are those your only two concerns?

Mr. Chipeur: That is our concern as an organization.

If you're asking for my personal opinion, my personal opinion is that restrooms and toilet facilities are areas where — whether it's on a military base or otherwise — women have a reasonable expectation of being there with other women. That is not unreasonable. That is my personal opinion. We're not coming here with that issue. Our issue is a health care issue, but if you're asking me whether there are other areas where women might feel vulnerable, if this committee is of the opinion that there are other areas, this is the perfect time to address that.

There is no reason to make one person uncomfortable in order to accept all within society. I think we have a big enough society, we're pluralistic enough and we can affirm the value of every individual without making people feel unsafe.

Senator Frum: In that case, how do you feel about the inclusion of the definition of ''gender identity'' in the bill? We heard the original bill didn't expressly have a definition. Would that help, if the definition was removed?

Mr. Chipeur: No, I don't think so. The reality is the courts have said gender includes all of these issues. I don't think the problem is with the issue of definitions. The issue is when one is able to self-identify, whether you say they can self-identify, if someone says, ''I have a particular gender,'' the courts or the human rights commissions will accept that at face value and will not go beyond the subjective statement.

I don't think that changing definitions will be the answer. The answer is to look at bringing clarity. We're clarifying what's in, now we're asking that you clarify in section 15(1) what's not. As long as there's a consensus amongst reasonable senators as to what should and should not be listed in health and safety and costs, where you have examples from the past and you know that these issues have been real issues that have to really be addressed by organizations that are subject to federal jurisdiction, then it is reasonable for the Senate to specifically identify them and say, ''That's what we mean when we say health and safety and costs.''

Senator McIntyre: Thank you both for your presentations.

You have both raised the issue of clarity, and we have two amendments: an amendment to the Canadian Human Rights Act and an amendment to the Criminal Code. The term ''gender identity'' is added to two sections of the act and to two sections of the code.

If a matter of dispute ends up before the Canadian Human Rights Tribunal, that's one thing. Obviously there's a process to be followed. On the other hand, if a dispute arises before a court of law, a different process is to be followed. In a court of law the onus of proof is on the Crown. The Crown must prove its case beyond a reasonable doubt. There's no question about that.

Bearing that in mind, Mr. Chipeur, as a lawyer, am I to understand that unless amendments are made or clarity is brought to this bill, prosecutors would be unable to proceed or courts unable to convict? Could you elaborate on that, please?

Mr. Chipeur: Our submissions this morning did not address the Criminal Code. They were specifically focused on the human rights issue.

If you're asking me as a lawyer with respect to the code, I think that self-identification does create some uncertainty. I think that if a court were to address the amendments that are focused only on the Criminal Code, a court would have to bring some objective process. In other words, one could not just simply self-identify and not tell anyone else what that identification was and then expect a prosecutor to rely upon that section to prosecute. I think the courts would say there must be some objective evidence that an individual has self-identified and that after that self-identification someone has, because of that self-identification, taken action to discriminate.

Senator McIntyre: What you're saying would apply to both sections of the code, 318 and 718.2, the sentencing principle?

Mr. Chipeur: I think you wouldn't even get to the sentencing unless you had first satisfied the objective test there.

I think in that area to use the expanded definition is unnecessary. In other words, I don't think it adds anything to have that expanded definition. If you were to just use gender identity as used in some other provincial human rights legislation and you use that same terminology in the Criminal Code, you would achieve everything that you need to achieve in terms of protecting individuals from those kinds of crimes. I think I can say that, but I don't think I can go beyond that because it really is a question of bringing some objectivity. As you said, prosecutors and courts will expect to be able to observe a crime objectively, and it cannot just be a crime in the mind of the individual who is the victim. Notwithstanding they may feel it, unless someone can observe it, it's not going to be something that the courts are going to be able to deal with.

Senator McIntyre: Exactly. Prosecutors will not lay a charge unless they think they can prove the case beyond a reasonable doubt.

Mr. Chipeur: That's right, with evidence that objectively the individual who is the perpetrator knew of that self-identification.

Senator McInnis: Thank you for coming here today. Are you saying the status quo or clarify this?

Mr. Chipeur: We are not advocates here on whether you should do this or not. We're saying if you do this, if you continue with Bill C-279, there is an opportunity here to bring clarity not just to what's covered, but also to what's excluded. We're saying that within our communities there are individuals who self-identify, and we need to be able to give the health administrators the ability to make the right choice for vulnerable groups. We're asking the Senate, while they have this bill before them, to provide that extra clarity that we're afraid may not be there for the average person in proposed section 15(1)(g).

When they go about life, most people don't have a copy of the Canadian Human Rights Act in front of them. They will just see the headline ''Transgendered Individuals'' and ''people are protected on the basis of gender identity.'' We would rather have the courts and the Canadian Human Rights Commission told ahead of time that this is what's in and this is what's out so that if a complaint comes in, there is no doubt that the Canadian Human Rights Commission will say this is a health care facility. This is a facility that treats and provides care for women who are vulnerable. Therefore, it's expressly excluded and your complaint is dismissed without the need to hire lawyers and go through a hearing. That's as far as we're going; that's all we're asking for.

We think you have an opportunity now to do a public service. As you bring clarity to one, bring clarity to the other.

Senator McInnis: But a problem if we don't?

Mr. Chipeur: If you don't pass Bill C-279 at all or if you don't include this?

Senator McInnis: If we don't do the clarification.

Mr. Chipeur: If you don't bring in the clarification, it is our fear that there will be complaints. We know that bureaucrats and judges are humans. They might not agree with Suzanne on this. They might say, ''No; this is not a safety issue. We don't buy your argument.'' We're saying that if you agree with Suzanne and you think this is an issue, then why not make the amendment now? Fix the problem now so it's not left to the discretion of a judge or an administrator. That's all we're saying. We're not saying anything beyond that. We're not taking a position on whether this bill should be done, we're just saying, ''Now that you're doing it let's address something that we are personally seeing in the field right now.''

Senator Mitchell: Thanks, presenters. Mr. Chipeur, I'm going to follow up on what Senator Baker was asking because your quote from the CBA letter was implying that somehow they felt that the bill was weak. I want to make sure that you can confirm that because you've read the whole letter. In fact, the CBA says:

The CBA believes there is a compelling need for express legal protection for transgender Canadians in federal legislation. As the House of Commons recognized, Bill C-279 will provide that protection.

They're very, very much in favour of this bill, are they not?

Mr. Chipeur: I agree with you, and we do not take a position opposite to the Canadian Bar Association. We're not taking a position on their letter. We agree that their letter says this is required. We're saying that if clarity is provided, it will in fact address the concerns they have about unnecessary litigation. That's as far as we went.

Senator Mitchell: They're saying that this does it.

Mr. Chipeur: I think you may want to invite them back and ask them.

Senator Mitchell: We will. They're coming — I hope they're coming; they're on the list.

You keep mentioning costs and the importance of costs. Of course, we are all concerned about costs. However, in a way, the implication of what you're saying is that you're leaving the door open to this idea that if it costs too much to provide transgendered people with exactly the same services as everybody else gets, that would somehow be a problem and you need to be protected against that. The way that you keep coming back to costs really implies that the logical conclusion of your argument is that costs would be enough to say that transgendered people shouldn't get the services that everybody else gets. Isn't that exactly why we need this bill?

Mr. Chipeur: Actually, proposed section 15(1)(g) is where you find costs. I didn't present that; that's already there. That argument, if one wanted to make that, is already in the legislation. Bill C-279 does not take that argument away.

That's not our position. In fact, our position is exactly the opposite. Suzanne said we want to and we are asking the federal government for money to ensure that men, transgendered individuals and women — everyone — receives care. We're just saying that we need the ability to provide that care separately. That is a very big distinction. We have never taken the position that we want to discriminate on the basis of costs. That's what the legislation says right now, and it will continue to say it if Bill C-279 is not there. That may be another issue you may want to address, because we certainly want all the funding for all those who are abused within our community, that's for sure.

Senator Mitchell: That has been defined multiple times in previous cases, so it's not really an issue anymore.

Ms. McLeod, I would like to applaud your organization for its recognition of the health care needs of transgendered people; good for you. You are making an effort to do that. I believe this wouldn't be inhibited by this piece of legislation.

First, have you consulted with women's shelters across the country, organizations like yours, who have in place policies that do deal with the kinds of issues that you're raising, or that could conceivably transpire, with respect to helping transgendered women? Have you consulted with them?

Second, what about organizations like yours, who don't have your enlightened view of trying to work with all people and help all people and who decide that they're not going to help transgendered people to have the kind of access to services that every other Canadian would get? What recourse do transgendered people have without this piece of legislation?

Ms. McLeod: Concerning the first question, we have consulted with other First Nations. We already talked about the Blood reserve; we also have the Stony reserve, which is located west of Calgary; and we have talked to another reserve just outside of Cold Lake. Those are the circumstances in which we have talked with the actual administrators.

I'm not an administrator; I'm a community developer. They have shared with me what their experiences are, albeit limited with transgendered individuals, and the types of challenges they have encountered.

Can you repeat the second question?

Senator Mitchell: What about organizations like yours, in both the Aboriginal community and elsewhere? What about an organization that decides it's not going to provide health care services? One of the issues transgendered people face is access to health care services. They are discriminated against often in hospitals, for example. What rights and recourse do they have without this piece of legislation? The flip side of it is they could be discriminated against — not by your organization but conceivably by other organizations — and they have no recourse.

Ms. McLeod: They have no recourse.

Senator Mitchell: Exactly. They need this legislation.

Ms. McLeod: Yes, they do need this legislation. We have individuals who have shown up at the women's shelters and because we didn't have those strong definitions and a policy — and, here I go back to the Blood reserve — they have had to turn away transgendered men because they are males. They have no real recourse other than going into the male shelters in the city, and, again, they're re-victimized by that point.

The Chair: To begin a second round, I have at least one senator who wishes to ask further questions.

Senator Plett: Following up further on Senator Mitchell's question about these people having no other recourse and your support of the legislation, again, your support of the legislation is clearly with a limited amendment so that you are able to separate people as you feel the need to separate them in your expert opinion or whoever would be the expert. You support the legislation if we would at least amend it to that point?

Ms. McLeod: Yes, I would.

Senator Plett: Thank you.

Mr. Chipeur, in your presentation you talked about sporting activities — Olympics, Pan Am Games, Commonwealth Games. Could you expand a little bit on that and what the implications are for us at a lower level? Senator Mitchell stated earlier that we're having somebody from Ontario Hockey coming, but what are the far-reaching implications of doing that and of that when these people get to the Olympics?

Mr. Chipeur: Currently, all international sporting events, whether it's the Olympics or the Pan Am Games or the Commonwealth Games, distinguish, in many cases, if not almost all. There are a few exceptions, as I understand it. I think, in some of the winter sports, there is the beginning of a mixed approach. That decision to have mixed teams versus teams exclusively of one gender or another is not something that a human rights organization or a human rights statute can address. Those are questions that have to be addressed at an international level, and it's really a foreign policy issue for governments as they come together and have athletic events.

I think it would be beyond the scope of this committee's focus to determine whether or not it is good to continue to have separate but equal teams of men and women. So long as that is international policy and international law in the sense that one cannot submit a men's team to play in a women's event and vice versa, if Canada were to, if you were to, as a Senate, pass Bill C-279 in its current state, an individual athlete could bring an application to the Canadian Human Rights Commission. In my legal opinion, they would be successful in requiring that they be considered equally to be on a women's team, and, if they qualified and were not put on that team and were male, that would then lead that team to be disqualified and not allowed to compete internationally.

I heard earlier today that California is deciding that they're going to challenge the system and do that anyway, in the face of the international rules. That's one way to go. If Canada were to pass Bill C-279, then you would be, by default, implementing that rule and effectively taking Canada out of international sporting events. That's a pretty significant step to take without the kind of debate and investigation that would be necessary to determine that.

I didn't intend to address sports, but as I was looking at section 15(1)(g), and then 15(2) for the purposes of our testimony, it occurred to me that sporting events don't qualify as health, safety and costs. As I was listening to the discussion about what California is doing, I thought that this is an issue that you, as senators, need to know. There will be some potential fallout that goes far beyond protecting individuals from discrimination on the basis of their gender identity. This committee needs to know that.

I think there is no doubt, in my opinion, that you are jumping into the fire if you pass this bill as it is, without amendment.

Senator Plett: On that sporting note, of course, this could go even further as far as the fact that, in the Olympics, you're not allowed to take any hormone treatments and so on and so forth, which are very clearly there when people transition.

Mr. Chipeur: I don't know about that, but it would be so easy to simply have an amendment to say we're going to exclude this issue for another day. Bill C-279 can pass. We can protect individuals on the basis of gender identity, but this does not apply to international sporting events that Canada may participate in. Then, you're able to avoid the issue. I just don't understand how this committee could even get into that issue of hormones because I don't know how it works either.

Senator Plett: Thank you.

The Chair: Does any other member have a quick question? Senator Mitchell, do you have anything briefly? You're fine?

Senator Mitchell: We'll have lawyers back to answer those things. Don't you worry about that.

The Chair: Thank you, witnesses. We appreciate your appearance here today and your testimony.

Members, next Wednesday we will be dealing with the Miscellaneous Statute Law Amendment Act, and, on Thursday, we will return to debate on this legislation.

Meeting adjourned.

(The committee adjourned.)