Proceedings of the Standing Senate Committee on
Human Rights
Issue 27 - Evidence - June 3, 2013
OTTAWA, Monday, June 3, 2013
The Standing Senate Committee on Human Rights met this day at 4 p.m. to study Bill C-279, Act to amend the Canadian Human Right Act and the Criminal Code (gender identity)
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Honorable senators, I call to order the 34th hearing of the 41th Parliament of the Standing Senate Committee on Human Rights. Our committee has received from the Senate the mandate to examine issues relating to human rights in Canada and abroad.
[English]
As a reminder to those watching, these committee hearings are open to the public and are also webcast and available at parl.gc.ca. You can find more information on the schedule of witnesses on the website under ``Senate Committees.''
Honourable senators, we are conducting a study on Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity). The bill proposes amendments to the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination. The bill also proposes to amend the Criminal Code to include gender identity as a distinguishing characteristic protected under section 318 and as an aggravating circumstance to be taken into consideration under section 718.2 at the time of sentencing.
My name is Mobina Jaffer, chair of the committee. I would ask committee members to introduce themselves.
Senator Ataullahjan: Salma Ataullahjan from Toronto, Ontario.
Senator White: Vern White from Ontario.
Senator Oh: Victor Oh from Ontario.
Senator Ngo: Thanh Hai Ngo from Ontario.
Senator Andreychuk: Raynell Andreychuk from Saskatchewan.
Senator Munson: Jim Munson from Ontario; my heart is in New Brunswick.
The Chair: To begin our hearings today, we welcome Mr. Randall Garrison, member of Parliament and sponsor of Bill C-279 in the House of Commons. Welcome to the committee. I would ask you to make your presentation.
Randall Garrison, M.P., sponsor of the bill in the House of Commons: Thank you very much, Madam Chair and committee members, for the invitation to be here this afternoon. I also thank you for moving quickly on this bill, which passed the House of Commons twice, the first time being more than two years ago. Both times it did so with support from all parties. This time it also passed with support from eight cabinet ministers, even though it is an opposition bill.
You will not be surprised if I start by emphasizing why I think this is an important bill. There are several ways in which that is true. First, it gives Canada a chance to meet our international obligations. Canada is a signatory to a UN joint statement on sexual orientation and gender identity. Under that international agreement, we have a responsibility to act to protect the rights of transgendered Canadians.
Second, there is a gap in Canadian human rights law in that we do lack explicit protections for transgendered Canadians; and this bill proposes to fill that gap. Third, it is a chance to show leadership by the Canadian Parliament. It will allow us to catch up with four provincial jurisdictions: the Northwest Territories, if I can count it temporarily as a province; Ontario; Manitoba; and Nova Scotia; as well as many municipalities, including Vancouver and Toronto. When I say ``leadership,'' I mean leadership in declaring the importance of Canadian values of inclusion and showing leadership that transgendered Canadians should be protected in the same way that all other Canadians are protected.
I believe it is time for us to face some unpleasant facts in Canada. The transgendered community is and probably always has been the most discriminated against community in Canada. The results of that discrimination are very clear. There are high rates of violence against the transgendered community. In particular, when we look at statistics involving hate crimes, we find that when hate crimes are committed against transgendered Canadians, they are two times more likely to be violent than those against any other group. The transgendered community, also as a result of discrimination, suffers high rates of difficulties with employment, resulting in poverty; serious discrimination in housing; and significant difficulties in accessing necessary health and social services. All of that exclusion leads to very high rates of suicide in the transgendered community.
Why am I the sponsor of this bill? Partially this is a result of the work that was done by my predecessor, Bill Siksay, Member of Parliament for Burnaby—Douglas, who retired in 2011. As the NDP spokesperson on lesbian, gay, transsexual and transgendered affairs, I inherited the work that Mr. Siksay had already done. I feel that I stand on the shoulders of a giant who made enormous progress in getting this through the House of Commons the first time.
There is a second reason that I sponsored this bill: my experience with the transgendered community. I was an instructor for 20 years in a criminal justice program at college, where I met students, both male-to-female and female- to-male transgendered persons, who were struggling to make their way in the community and into a career in law enforcement. The experiences I saw them go through very much inspired me to take this bill forward.
I want to stop and add a footnote that the Ottawa Police Service has been very progressive here and was the first police department in the country to hire a transgendered officer.
I also met transgendered people as political allies. On my first campaign, my communications director was a transgendered woman; and the president of my riding association at one time was also transgendered. These were people who chose to get involved in politics because they felt that the Canadian human rights agenda had a gap when it came to them and they very much wanted to see themselves included in the same way as all other Canadians.
I have been privileged to have close friends and neighbours who are transgendered. I have seen the exclusion that they face in so many parts of Canadian society and the difficulties that the lack of acceptance has caused families who are trying to understand the transition that their sons, daughters or parents have gone through and to look for the supports they need in the community in those situations.
The arguments for this bill are quite simple. The bill offers the same basic human rights protections for transgendered Canadians that all other Canadians enjoy. It does not offer special rights or different rights but simply the same rights that most of the rest of us take for granted every day.
At the beginning of this meeting, the chair pointed out that there are simply two things proposed in the bill: first, amend the Human Rights Code to add specific and explicit protection for transgendered Canadians; and second, amend the hate crimes section of the Criminal Code to do the same thing.
I want to spend some time on the arguments that have been made against the bill. I worked closely with members of the Conservative caucus, in particular the Member of Parliament for Delta—Richmond East, Kerry-Lynne Findlay, to try to reach compromises in the house to address those concerns that people had. This is not the original bill, which was amended to narrow the bill to exclude the term ``gender expression.'' While I believe gender expression and gender identity are closely linked, others believed that this was problematic. Therefore, we reached a compromise to remove ``gender expression.'' The second compromise was to provide a definition for ``gender identity.'' My sympathies were with those who argued that we do not define ``race'' or ``religion'' in the act and there was no need to have a specific definition for ``gender identity.'' However, I recognized the concern that people are not as familiar with the phenomenon as they are with other protected classes; so we chose a definition drawn from international jurisprudence and, therefore, would be consistent with international law on and usage of ``gender identity.''
We also attempted to present evidence at the Justice Committee in the House of Commons to address some other concerns that were raised, some of which have continued to be raised. I want to talk about three of those specifically.
First is the argument that this bill is not necessary because transgendered Canadians are covered in human rights legislation. While I acknowledge it as true that some progress has been made by pursuing cases under sex, sexual orientation and disability, it is not true that this guarantees success in all cases in the future involving transgendered Canadians. There are some characteristics of transgendered Canadians as a class that deserve explicit protection and to not be presented with a challenge of having to argue under some other class or group. In particular, many transgendered Canadians find the necessity to argue under disability as offensive.
We heard, in the Justice Committee of the House of Commons, from the Canadian Human Rights Commission, and I know that you will be hearing from them later today. The Canadian Human Rights Commission argued that it was useful to add explicit protection for gender identity, so I believe that the argument that it is not necessary is incorrect. Also, it is a peculiar reason to oppose a bill. Even if that argument were correct, there would be no harm in having the additional explicit protection.
The second argument is one that was new to me, and it was raised by Senator Nancy Ruth in her opposition speech. I find it a bit perplexing. Her argument is that the bill needs to add gender to the hate crimes section of the Criminal Code as well. In fact, the NDP has previously introduced a bill in the House of Commons to do just that. That, to me, is a different question, and, under the rules of the House of Commons, it would be considered outside the scope of this bill to add something that is essentially a different topic to the same bill. I know that you have different rules in the Senate. I am not sure what that situation would be here. However, I cannot understand opposing this bill because it does not do something that would also be good but is unrelated to the subject of this bill. I have had this discussion directly with Senator Nancy Ruth, and we have agreed to disagree.
Some other part of this argument alleges that this bill, in some way, privileges men over women. I have to say that this is not true because this bill offers to protect the rights of both male-to-female transgendered Canadians and female-to-male transgendered Canadians, so it is not a question of differences between men and women. It is a question of protecting both male-to-female and female-to-male transgendered Canadians and also, I would argue, those who are gender-variant in other ways.
Let me turn, finally, to the argument that I have labelled offensive, even if those who make it are unintentional when they make this argument. It is that this bill will somehow make women and children less safe in bathrooms. This an argument based on fear, not fact. I could start by pointing to the obvious fact that bathrooms are rarely, if ever, under federal jurisdiction so that this bill has no direct implications on public bathrooms. I could point to the other obvious fact that transgendered Canadians already use gender-appropriate bathrooms and pose no threat to anyone in doing so. It is, in fact, transgendered Canadians who are most often at risk in public bathrooms. No matter which bathroom they used, they are often perceived to be in the wrong place.
Because this argument was raised in the House of Commons, we did contact four jurisdictions in the United States that have a lengthy history of having protections for transgendered rights in their human rights codes. Those four jurisdictions were Iowa, Colorado, Washington and California, and all of them responded in writing, saying that they have had no instances of the illicit use of the protection for transgendered rights for some other purpose by males seeking access to bathrooms. I think that is very important. There were no incidents in any of those four jurisdictions, some of which have more than a decade of experience. Of course, there are no incidents that have been reported in any of the Canadian jurisdictions.
I will say that there was one specific incident referred to. It has been referred to in the media, and it talks about a locker room, based on a 2012 incident at The Evergreen State College in Washington State. In fact, this is an incident that results from a complaint about a transgendered person using a space appropriate to their gender. It is not an example of someone using transgendered rights to gain access to a locker room.
The Chair: Mr. Garrison, I will ask you to complete your remarks because many senators have questions.
Mr. Garrison: It is useful to follow that example of what The Evergreen State College did, which was to install privacy curtains. It is no longer an issue at The Evergreen State College. To me, it illustrates that there are quite often very simple solutions for what are made to be quite challenging problems.
In conclusion, I believe inclusiveness is a fundamental Canadian value. The House of Commons has already made that declaration. I look forward to the Senate's doing the same. Transgendered Canadians are our brothers and sisters, our fathers and mothers, our daughters and sons, our neighbours and our friends. I say that the time has come to make that clear by embedding these fundamental rights for all in Canadian law. The same rights, no more, no less. I believe the time has come to act to end discrimination against transgendered Canadians, and I ask you: If not now, when?
The Chair: Thank you very much. We will now go on to questions, and we will start with the deputy chair of the committee, Senator Ataullahjan.
Senator Ataullahjan: Thank you for your presentation. I know you spoke about the provinces. There are four provinces that have taken similar measures. I would like to know what the results have been.
Also, I know you spoke briefly about the U.S.A. and some of the states that have taken certain measures. What countries around the world have taken similar measures, and how have they affected the trans communities in those countries?
Do you feel that these measures have had positive results? Have they decreased the hostility and discrimination that is faced by trans people?
Mr. Garrison: One of the problems we have in dealing with discrimination against transgendered people is that, because their protection is not explicit, quite often bodies do not collect specific statistics about the transgendered community. Of the four jurisdictions that I mentioned, only the Northwest Territories has a long history. It has been in place, I believe, for about 10 years in the Northwest Territories, and the other jurisdictions are really quite recent in comparison.
However, I would again say that, as well as no negative examples, there are lots of examples from the transgendered community of social and other services, like housing, being made more readily available to them as a result of their being able to point to the explicit protections in the Canadian human rights codes.
There are also, I believe, 160 municipal jurisdictions in the United States that have had transgendered rights protection, largely for housing in those cases. Again, it has made a visible difference. Again, transgendered people suffer discrimination on the basis of being transgendered but also quite often live in poverty because of that discrimination. Housing is one of the very biggest challenges for many transgendered people.
I did not bring statistics. I do not have them in my head. I hesitate to name the number of countries. I have a number in my head, but my brain is not always good at that.
Senator Ataullahjan: You could probably send it to us.
Mr. Garrison: We can make that information available to you. I can say that, again, there are no negative examples, from any of those jurisdictions, of the kinds of fears we have heard, and there are positive examples of transgendered people being able to access health and social services.
Senator Ataullahjan: Gender expression was removed from the bill because it was deemed to be too vague in definition. Can you explain why it was initially included and why it was removed? Is the bill significantly altered with the removal of gender expression?
Mr. Garrison: The argument that it was not as well defined is, I think, true. In jurisprudence within Canada and internationally, gender identity has been given very clear definitions. Gender expression has less often been the basis of legal cases, so the explicit legal definition is less clear. I agreed that those who felt that was problematic had a point.
Now, the basic question comes back to, if gender identity is protected, then how can it not include the ability to express your gender identity? For me personally, the two terms are very linked, and I do not think it fundamentally changes the intent of the bill. What it will do is leave to jurisprudence some of the questions about gender expression. That is the main change in the bill, so some things that might have been more explicit and definitive in terms of gender expression, like a definition and its application, will be left to court cases. Personally, I think that is unfortunate, but it is a compromise that allowed this bill to go through the House of Commons. In that sense, I do support it.
Senator Munson: Thank you for being here. The clock is ticking in terms of dealing with this bill. I see that the vote was 149 to 137 in the house, and you had the support of Finance Minister Flaherty, Labour Minister Lisa Raitt, the heritage minister and Mr. Baird. That is pretty strong support for a bill, yet there is this derogatory term that seems to be out there. You alluded to it — the ``bathroom bill.'' How does it come to that sort of thing? I see where a Mr. Anders, a Calgary MP, tabled a petition on behalf of thousands opposed to what he called the ``bathroom bill.'' He said that these constituents feel that it is the duty of the House of Commons to protect and safeguard our children from any exposure and harm that would come from giving a man access to women's public washroom facilities.
We want to have a reasoned debate about this, but sometimes it is difficult when you see the kind of inflammatory wording such as a ``bathroom bill''.
Mr. Garrison: When I said that I find the argument offensive, I do believe it is being used by some groups to justify their opposition to the recognition of transgendered rights. There is one group, in particular, who worked very hard against same-sex marriage. At the time, they argued that it would lead to polygamy and all kinds of other horrible things. Of course, same-sex marriage was adopted in Canada and none of those things came to pass. This group is the same perpetrator of the argument that this is about bathrooms and the dire consequences that will come from this bill. I am confident their predictions will be equally bad about this bill as they were about the same-sex marriage law.
Senator Munson: I asked you in the context that all of us have been dealing with issues concerning young Canadians who are taking their lives, committing suicide, because of gender. These young men and women have lived in the shadows, as we talked about here in the Senate, in terms of mental health. In the transgendered community, people are living in the shadows. What is it saying that as a society we are allowing this to continue to happen, and how much hope can we give them with this particular bill?
Mr. Garrison: As I said in my conclusion, the House of Commons has now made a statement that transgendered Canadians should enjoy the same rights as all Canadians and be fully included in Canadian society. I am looking forward to the Senate's making that same statement. If we do that, it will have an enormous impact, especially on young Canadians trying to come to terms with being different when it comes to gender identity than what is perceived to be a very narrow norm. It will be very helpful.
Senator Munson: I agree with you. The Senate sometimes works in mysterious ways and does not work as fast as things happen in the House of Commons when it comes to bills like this.
In the past five years, the Human Rights Commission received, I think, 19 discrimination complaints against transgendered issues, eight of which were still open at the time. What effect would this bill have on these cases or would it have on cases that are currently open?
Mr. Garrison: You have the Canadian Human Rights Commission here as a witness; I think they have much more expertise in answering that question. However, I will say that the experience in other jurisdictions has been that it clarifies the work of human rights commissions and simplifies the presentations that have to be made to them when transgendered protections are explicit. It has not resulted in a flood of new cases. Some people have feared that somehow when you put this in, there will be hundreds of new cases. There may be a slight bump in the number of cases filed initially, but most transgendered people suffering discrimination have tried to make their case under other grounds of discrimination, so those cases are already before the Human Rights Commission. They said quite explicitly they felt it would be helpful, and I am sure they will tell you the same thing today.
Senator Munson: One final question on this round: There is an opinion out there — certainly not mine — that human rights commissions are getting in the way of the courts. Why do we not just let the courts deal with all these things? I am the critic in dealing with section 13, removing that part of the bill and spreading hate over the Internet. The argument from some on the opposition side, friends that I work with closely, is basically that this just holds everything up, and why do you not throw things to the courts of this country? I have always believed that with freedom of speech comes responsibility, on that issue. We have these human rights commissions in front of us, and there are those who say there are frivolous cases, things are not happening very often and it ties up a lot of things: Leave it to the courts. What happens if you leave this sort of thing to the courts?
Mr. Garrison: The first thing I would say very explicitly is that most transgendered Canadians live in poverty and do not have the resources to hire expensive lawyers and pursue years of litigation through the courts. For them, having a human rights commission, which is relatively low-cost and low-effort in comparison to the courts, opens a door for them that I think is very important. The same is true for all Canadians of more modest means. Not everyone can afford a long legal fight through the courts, and with the delays we have in our court system at present, these are never short fights at this point.
Senator White: Thank you for being here today. We often say that something challenging is worthwhile when it is challenged. In looking at some of the vote in the house and some of the dialogue, I think it is important dialogue to have. I am pleased to see — I typically will say the LGBT community — the TGBL community with you here today. It is important information for everyone to have as well, and — I am on a bit of a dialogue here, I apologize — the gay, lesbian, bi community has been very outspoken for their rights, and I think for the transgendered community, it is timely to hear this.
My question is that for about seven years I have seen a number of cases involving the transgendered community go before human rights commissions and, as you mentioned, the Ottawa Police Service. Before that, when I was chief at the Durham Regional Police Service, we had some of our own cases that always landed where they should, I would argue; I have not seen one that has not. Perhaps the clarity is not good enough for me. From a clarity perspective — I read the notes, what the acting chief commissioner will talk about — how important was it when you brought this legislation forward for that community to be recognized, and what do you think that will do within the greater realm of the LGBT community, if you do not mind?
Mr. Garrison: Thank you. I was trying to figure out a way to make reference to the fact that members of the transgendered community have come here today, and some of these members of the community have been following —
Senator White: You could have pointed it out.
Mr. Garrison: — very closely as the debate develops. I think it is very important in terms of that inclusiveness, which I feel is a fundamental Canadian value, to have this explicit protection so that members of the transgendered community have no doubt about the commitment of the Canadian government and Canadian society in general to ensure this discrimination ends and that we make progress in including transgendered Canadians. I have said honestly to members of the community — I spoke at Gender Mosaic's twenty-fifth anniversary in Ottawa last week — that the bill does not end the work of the transgendered community but gives them a way to move forward in making progress on further inclusion and access to social services. For members of the transgendered community who are here, they will be able to use this bill to advance their rights. When I say ``their rights,'' it is the same rights the rest of us enjoy, but sometimes people are confused about that when it comes to transgendered Canadians.
Senator White: Thank you very much, and thank you for being here today.
Senator Andreychuk: Thank you. I want to make a comment. I think education is very much the key in this, and working with communities. It would seem to me that if others do not feel as you do, Mr. Garrison — I appreciate your reasoned approach to this — that they should have a forum to speak. Otherwise it goes underground, and that is where it is dangerous. The fact that there were differences in the House of Commons to me is reassuring because they come out, we know what the issues are, you can address them, and the community can address them. I think as a Senate we should allow the House of Commons to do its job, and I think it did in this case.
I have always had two problems. One is in the section, particularly in the Criminal Code. I do not want to talk about the value of the Human Rights Commission, that is for another act and another day, but we are talking about your bill here. What troubled me is that once you start identifying groups, we are not focusing in on the discrimination; we are focusing in on the groups. There is value in doing that, but we are getting a long list in the Criminal Code and there are other discriminations in the community. Do you feel your bill was necessary but that it may just continue to lead to identifying more groups and discrimination, which then means we have to go through a Criminal Code change — or at least in the minds of people — before we start addressing it in the community?
As society changes, discrimination changes. We are not static. That is the strength and the weakness of our society. When I look at the list, it is getting very long, and makes it difficult, I think, to start the education process going.
Mr. Garrison: Thank you very much, senator. I appreciate your pointing out that some people have concerns about the hate crimes section and also the Human Rights Commission. However, I am here today asking that you give transgendered Canadians the same protection as others. Have the debate about the hate crimes section of the Criminal Code or the usefulness of commissions, but not at the expense of the transgendered community.
I think the difference when it comes to the hate crimes section of the Criminal Code is the depth of hatred against transgendered Canadians and the levels of violence that are involved. I mentioned in my presentation that the one good study we have shows that hate crimes against transgendered Canadians twice as often involve violence, in contrast to those against others, where such hate crimes are often verbal. That level of violence is a persuasive reason for transgendered Canadians to be listed in the hate crimes section of the Criminal Code.
Senator Andreychuk: I do not disagree with Senator Nancy Ruth; I just think it is another issue, and she would be free to introduce a bill that would add another listing here perhaps as valuable as the one that you are bringing forward. Is that your position? You said you disagreed —
Mr. Garrison: I did say in my presentation that it is a good thing to do; it is simply not the topic of this bill. In House of Commons terms, it would be beyond the scope of this bill. The advice I received was that it would not be possible to add something like that to this bill, under the House of Commons rules, because it is beyond the scope of the original intention of the bill.
Senator Andreychuk: My final question here is a subset of others, which I go back to. If we pass this bill, what do you foresee will be the educational value as opposed to the litigious capability that occurs with this bill?
Mr. Garrison: I think the symbolic educational value is very high. Again, we are dealing with a community that, historically, has been the most discriminated against in society. For the Parliament of Canada to make this unequivocal declaration that transgendered Canadians are Canadians with the same rights as everyone else is the beginning of that educational process.
Senator Andreychuk: Would you include in that, then, that it is discriminatory practices that lead to the issues in our society? In other words, they need to be accepted as part of the society; is that what you are saying?
Mr. Garrison: I am saying that inclusiveness is a fundamental Canadian value and that by making that explicit, it takes away the licence for people to exercise their prejudices, and it calls on them to consider the actual problem we are dealing with, rather than their prejudgments of those problems.
The Chair: Thank you very much, Mr. Garrison, for being here today and for giving us your point of view on this bill. We look forward to working with you.
Mr. Garrison: Thank you very much.
The Chair: For the benefit of our next panel, we are studying Bill C-279. We are pleased today to have, from the Canadian Human Rights Commission, someone who is not a stranger to our committee, David Langtry, Acting Chief Commissioner; and Ian Fine, Secretary General. Welcome again to you both. We appreciate your working with us on a regular basis. I know you have some written comments and a presentation to make, so please start.
David Langtry, Acting Chief Commissioner, Canadian Human Rights Commission: Thank you very much, Madam Chair and honourable members. Thank you for the invitation to the Canadian Human Rights Commission to contribute to your study on Bill C-279, which amends the Canadian Human Rights Commission to include gender identity as a ground for discrimination.
In November, my colleague Ian Fine, Secretary General of the Canadian Human Rights Commission, appeared before the House of Commons Standing Committee on Justice and Human Rights on this subject. We come here today with the same three points: First, discrimination or harassment experienced by people who are transgender is often hostile and sometimes hateful and violent; second, the commission, the tribunal and the courts view gender identity and gender expression as protected by the Canadian Human Rights Commission; and finally, adding the ground of gender identity to the Canadian Human Rights Commission would make this human rights protection explicit.
We do not know how many transgender people live in Canada, but we do believe that many transgender people do not identify themselves because they are afraid — afraid of being shunned by society, afraid of being harassed or treated unfairly and, in some cases, afraid for their safety. Even accessing health care or obtaining identification documents can be difficult. Some feel that doing so threatens their privacy and, in turn, their security.
In Canada, we take pride in being diverse and inclusive. No one should have to live in fear because of who they are. Parliament designed the Canadian Human Rights Act to promote equality and acceptance.
[Translation]
It was created to protect all of us, including vulnerable members of our society, from harassment and discrimination.
The Canadian Human Rights Commission is responsible for administering the act. We receive discrimination complaints regarding employment and services provided by organizations under federal jurisdiction. This includes the federal public sector, as well as private sector companies involved in industries such as transportation, telecommunications and banking.
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The commission screens all the discrimination complaints it receives. Many are settled through mediation or are resolved through a dispute resolution process. In some instances, we refer complaints to the Canadian Human Rights Tribunal for adjudication. The tribunal operates independently of the commission.
This brings me to my second point. When someone experiences discrimination based on gender identity or gender expression, they are protected under the Canadian Human Rights Act. The commission already accepts complaints that raise transgender issues. However, I believe that the complaints we receive do not provide a full picture of discrimination involving gender identity.
For many, filing a complaint is a last resort. It takes courage. For some, the fear of stigma can be overwhelming. It is often easier to remain silent.
This brings me to my last point. As I mentioned earlier, the Canadian Human Rights Act was created to protect all of us from harassment and discrimination. In the past, Parliament has amended the Canadian Human Rights Act to ensure that these protections are available to the most vulnerable members of our society. Adding the ground of sexual orientation is one example. Adding the ground of gender identity to the act would make protection for members of the transgender community explicit. It would promote acceptance and send a clear message that in Canada everyone has the right to be treated with equality, dignity and respect.
We thank you for your attention and would be happy to take your questions.
The Chair: I will go to the deputy chair of the committee, Senator Ataullahjan.
Senator Ataullahjan: We keep hearing that transgendered and transsexual people are more likely to be victims of sexual assault and harassment. The Canadian Bar Association claims that while this bill does not add new rights, it expresses legal protection for transgendered Canadians. Would you agree? Do you think that if passed, this bill would significantly decrease the prevalence of sexual assault and harassment?
Mr. Langtry: I would not want to speculate on the outcome in terms of assault. It may promote acceptance by giving explicit recognition as a ground of protection to gender identity, and it would raise the level of public acceptance in the community. Historically, adding specific grounds and groups does not mean they are no longer discriminated against, so it would not eliminate assault. However, there is a growing acceptance, promotion and awareness that the Canadian Human Rights Commission is responsible under the legislation for the promotion and protection of human rights. Having explicit recognition of gender identity would promote and educate the public on issues of gender identity.
Senator Munson: In your opening presentation you said that you received discrimination complaints regarding employment and services provided by organizations under federal jurisdiction, which includes the federal public sector and private sector companies. Can you give me some examples? I would like to know what happens when a transgendered or transsexual person looks for a job. What happens in the process? Do people say they cannot hire someone because they suspect the person is transgendered? I am curious to know how that works. In terms of sensitivities, Canadians need to know what happens. You talked about telecommunications, banking and transportation. I would love to hear some examples of how someone dares to say no to a transgendered or transsexual person.
Mr. Langtry: I will answer that in a more general way on any of the grounds of discrimination and complaints that come in. The reality is that most employers and service providers are aware of what should be said and what should not be said. Some would say that rather than Canadians practising overt discrimination, the discrimination becomes more and more covert. Therefore, when we receive a complaint, and we are a screening body, we do not make the decision as to whether discrimination has occurred. The complaints are individual. We look at a complaint and do an investigation. Courts have held that it requires only a subtle scent of discrimination. It is true that many would not say, ``We will not serve you because you are a transgender,'' or ``We will not hire you because you are a transgender.'' However, when one looks to the circumstances around it and finds that the facts could lead to a possible conclusion, then the case could be forwarded to tribunal.
Senator Munson: Does a person have to put his or her sexual orientation on a job application?
Mr. Langtry: No.
Senator Munson: Employers just figure it out. You used the word ``covert.'' I am curious about this. This is discrimination at its worst. How do they figure these things out? Why should it even matter in the first place? However, those are other questions.
Mr. Langtry: Perhaps Mr. Fine, our former head of dispute resolution, would like to comment.
Ian Fine, Secretary General, Canadian Human Rights Commission: This may be an overly simplistic example, but it could be that someone has a male name and looks female or vice versa. We have heard of those cases arising in the past.
As for what may happen and in reference to Mr. Langtry's comments, we see situations — and this applies to any of the grounds of discrimination — where someone may apply for a job and have to write a test in order to be screened into the competition. The person may do very well on the exam but then not receive a job offer. That may be one sign that perhaps there is something more to it than we would know in other circumstances. It may lead someone to question how that process was run.
Senator Munson: I would recommend for Canadians who may be watching this hearing to take a look at what happened at the University of Victoria in January when I spoke at a diversity conference. It was overwhelming and powerful to hear some of the young people speaking. They were transgendering in terms of poetry about where they are at and where they are going. It is that kind of thing.
We are getting sensitive to understanding young people and what may have happened when a suicide occurs, and so on. We are in the same place here, and we need to pay attention. As well, education is so important.
I have said before that in the Senate we take time to pass bills. We are a chamber of sober second thought, and we work together on many bills. We take a hard look at things. I worry, as I always do, because it took me three years to get a simple bill on World Autism Awareness Day passed — one simple bill. It takes time. If we do not pass this bill, what does that say to the transgendered community?
Mr. Langtry: Are you looking for a response from me?
Senator Munson: Yes. What are we saying as a society if we say no to this bill? The vote in the other place was 149 to 137. It was described in some press reports as 16 courageous Conservatives standing with the Liberals, the NDP and Independents to move it from the elected party, with all due respect to the NDP member of Parliament. They passed it. The Senate does not like to rubber-stamp bills; we like to take a good look at them. Historically, with the way things happen here, I do not know if this bill will become law.
Mr. Langtry: Our mandate is determined by Parliament. To draw an analogy, we had called for the repeal of section 67 since 1977, and it was not until 2008 that First Nations had access to the same human rights as all other peoples. That was 31 years in the making, so I take your point. We at the commission support this bill.
Senator Munson: Thank you.
Senator White: You talked about what you think this does for us legislation-wise. What is missing from this bill that could make it stronger and clearer and could help you in your job?
Mr. Langtry: I have to say I am not in a position to say what should have been clearer. The point is that it was amended, as you heard from the previous witness. When we appeared last November, both gender identity and gender expression were part of the bill; and we supported both.
Putting in a definition of ``gender identity,'' while following international norms, is unusual in our legislation because courts often will interpret what is meant by language, and things evolve over time. That is not to say that we oppose it. We continue to support it.
The reality is that, as I have said and as honourable senators are aware, we do currently take complaints on gender identity and gender expression. We feel there are benefits of having it explicitly stated.
When I talk about education promotion, recent studies show that almost half of transgendered people do not have identity documents in their lived gender. By having an explicit reference to gender identity in our legislation, given our promotion, education and awareness functions, it will give us the opportunity, by working with federal government departments, to encourage those identity documents to be able, for all purposes, to be changed. You should be allowed to have a change in your identity documents without question.
Senator White: Would you have left the definition out? If you were drafting this legislation — and I do not mean to put you on the spot, but I will anyway — would you have left the definition out?
Mr. Langtry: We will see how good I am at getting out of a spot. The reality is that we participate in many hearings in which the tribunal, because it would first go to the tribunal, does the definition. I will use, for example, the Supreme Court of Canada in the Taylor test of what constitutes hate. That came through the tribunal and, ultimately, went to the Supreme Court. It was the Supreme Court that defined, back in 1990, what is meant by ``hate'' and what test is required.
As I say, that has been our experience; that is the way we have always worked with the act. The tribunal, the courts or Parliament, in this case, defines it.
Senator White: I will try not to surmise, but I guess allowing the Supreme Court to make the decision or to define it might be more helpful in some cases, like the example of hate. The Supreme Court defines it clearly for us, whereas, in this case, we will legislatively define it, which might or might not meet the test, might or might not meet the Supreme Court and might or might not satisfy the community.
Senator Andreychuk: I have a couple of more technical questions.
We have the definitions. You first identify that you belong to a group and have been discriminated against. Within the commission, do you have cases that do not fall under any of these definitions, and would you still term them hate and discriminatory? In other words, I want to know how evolving this section is.
Mr. Langtry: Again, the honourable senator had noted that, in the five-year period since January 2008, we have only had 19 cases that we have identified that would fall within gender identity or gender expression. That represents 0.25 per cent of our caseload during that period of time, so it is not a significant portion of our work. I say that, as well, because it is difficult, then, to draw conclusions and so on. I would have to say that putting the definition in here would not, in my opinion — and Mr. Fine can correct me if I am wrong — have meant that any of those would not have been receivable, considered or dealt with in the same way. This would not be, in our view, restrictive to the cases we have held. Going forward, it would, perhaps — and this is an assumption — by having the specific reference to it, encourage some members of the community to bring forward a complaint once they know that there is a specific reference to gender identity in our legislation as a protective ground.
Senator Andreychuk: I guess that was not quite my question. My question is this: When an individual comes into the commission alleging discrimination, are they well aware of this act, or do they come in and say, ``I have been aggrieved because of this situation. I did not get a job because of who I am?'' Are they that well versed that they know that they are part of a group and, therefore, are coming to you?
Mr. Langtry: I would have to say that this group is no different than many others. Canadians generally are not as familiar. Certainly, our respondents are because they have had previous complaints. Many of our complainants are one-time or first-time and were not aware of their rights in the legislation. Many of the calls that we get are provincial or territorial matters, not federal. A lot of our work is informing, and we do try promotion and awareness. It is the same for First Nations people. Many are not aware of our legislation or even the change that happened five years ago.
Senator Andreychuk: You are dealing with the discrimination, and then you go through your process to see whether it falls within your definitions and procedures?
Mr. Langtry: Right. At intake, we will speak with the prospective complainant and inform them. We will hear some of that if they are calling. We now have a self-assessment tool on our website, as well, that people can go through to see if it is something that could be within our jurisdiction. We do have provision in our legislation, which we often use, to determine in a fairly quick way, without having to investigate the case, whether it is even within our jurisdiction. A complainant might insist on filing a complaint. It can come forward for a determination as to whether it is, in fact, within our jurisdiction. Yes, we do the function of hearing what the case is, and we will give advice and assistance. People are often not represented by counsel, so it is our responsibility to inform and assist potential complainants in completing their complaint forms.
Senator Andreychuk: Do you have statistics of how many complainants come with counsel or with an advocate of some kind and how many come as individuals? That is for all categories, not just transgender.
Mr. Langtry: Yes, I take the point. We can look. I am not aware that we maintain that, but I could be wrong. If we have that information, certainly we will provide it.
Senator Andreychuk: Fair enough. Thank you.
Senator Cordy: Thank you very much for being here today.
I was very pleasantly surprised that this bill passed the House of Commons, so at least it is a start.
All of us have heard horrendous stories of discrimination in the transgender community, and, as you mentioned earlier, many of the incidents are hostile and violent, unfortunately. As I think you said earlier, people are often reluctant to come forward with complaints because of the stigma that is attached. I am wondering whether you feel that this bill would be a start in removing that stigma.
Mr. Langtry: In my view, it is. It is a good start. I think that if the transgender community sees themselves specifically and explicitly referenced in the Canadian Human Rights Act and the public sees that Parliament has recognized gender identity as a stated ground, then the transgender community will feel greater acceptance or recognition.
Senator Cordy: I have done a lot of work on mental health and mental illness. Again, there was a great stigma. The Senate did a report and set up the Mental Health Commission. I think that has been start. Perhaps, in the same way, this bill could be at least a start, with a lot of work remaining, in diminishing the stigma that is attached.
The Chair: Thank you very much. Thank you, Mr. Langtry and Mr. Fine, for being here. We look forward to working with you in the future.
I am happy to welcome Egale Canada and Ryan Dyck, Director of Research and Policy, here today, and also Professor Greta Bauer, Associate Professor, Department of Epidemiology and Biostatistics at The University of Western Ontario. Both of you have presentations. I will ask you to start and that you keep your presentations as brief as you can, as senators have a lot of questions. We certainly want to highlight the issues in this bill and ask you questions. Who will start?
Ryan Dyck, Director of Research and Policy, Egale Canada: Thank you, Madam Chair and honourable senators, for inviting us to speak with you today about a bill that Egale Canada considers a critical step in addressing a significant gap in our current human rights legislation.
I would like to begin my presentation today by speaking about some of the implications of this bill that we feel have not been quite as addressed as some other aspects, and that is specifically looking at the implications this bill will have on our youth. Our key mission at Egale Canada is to work against homophobia, biphobia and transphobia across this country, with a goal of eliminating bullying, discrimination, harassment and hate crimes in all aspects of our communities. One of the key areas in which we do this is through education. In fact, we deliver safer and accepting schools training to schools across this country. As we have done this work from Yukon to Newfoundland and Labrador, we have had the privilege of meeting transgendered and gender-variant youth in every school district we visited who are transitioning in school. These youth are an inspiration to us as they bravely face challenges in their schools every day that directly impact their physical and emotional safety.
In an effort to quantify what is going on across the country, we delivered a survey to over 3,700 youth in every region of the country and released a report entitled Every Class in Every School: Final Report on the First National Climate Survey on Homophobia, Biphobia, and Transphobia in Canadian Schools. Our report found that 78 per cent of transgendered students feel unsafe in their schools and that 44 per cent have missed school because they feel unsafe. Seventy-four per have been verbally harassed because of their gender identity and expression; 49 per cent have been sexually harassed in school within the past year alone; and 37 per cent have been physically harassed or assaulted because of their gender identity or expression. It is our opinion that these statistics should cause all of us to take a moment to think about what we could be doing to address these tragic and horrifying numbers.
It is our opinion that Bill C-279 is exactly one such measure, one of a number of important steps that we as a society and a country need to be doing to end bias, harassment and discrimination against our transgendered and gender- variant community members.
We have heard a lot in the public debate around this bill about the issue of bathrooms. I would like to present to you what we have seen across this country, which has been a very different perspective than what we have heard in many of the media opposing this bill. As we have talked to students, we found that over half of transgendered youth across this country reported that bathrooms and change rooms in their schools were the most unsafe spaces for them. Far from being places where other people are at risk of harm, these are places where transgendered people are significantly at risk of harm.
I can give you a story to exemplify this issue. As we have been doing training and workshops across the country in the work we have done, most recently we had a mother come to us. Her child, who is gender-variant — who from the moment he could start speaking said, ``Mommy, I am not a girl, I am a boy'' — presents fully as a boy and has been attending school as a boy, and he cannot use the bathroom in his school. His school has refused to provide him with a safe space to use the washroom, which, as you can imagine for a six-year-old boy, has led to significant health issues for him. His mother had to start taking time off work to drive to the school at recess to take him across the street to the gas station so that he could use the bathroom.
This is unfortunately not uncommon. It is something we have seen across this country. Many people have raised fears about what might happen if this bill is passed. What are the implications of including gender identity and recognizing gender diversity in our laws? Newfoundland and Labrador, which is where the case I just cited took place, is a key example. Far from having greater issues or challenges, six schools have already introduced gender-neutral washrooms and change room facilities in their schools as a result of the work we have been doing there in partnership with the Government of Newfoundland and Labrador. These facilities are accommodating, inclusive and safe for everyone, not just those who are transgendered but those who are cisgender as well. In fact, the move towards recognizing gender identity in policies in Newfoundland and Labrador has led to the increase in inclusive and safe spaces for everyone.
It might also be argued that some of the issues I have discussed so far are provincial issues and not federal ones, and not under the auspices of this bill. However, I would submit to you that the statement that Parliament would make by passing this legislation on a federal level cannot be underestimated. The impact this would have in telling the provinces and every jurisdiction across the country that we will not tolerate discrimination, bias, hatred against our transgendered and gender-diverse community members is significant.
Many have also argued they have heard that this bill is purely symbolic and will have no tangible impact. I would like to also combat that by looking specifically at the hate crime provisions in this bill or the amendments to the hate crimes sentencing provisions in particular. Many have said that the phrase or any other similar factor is sufficient to include transgendered and gender-variant people. However, after significant research, we have been unable to find one single case in the history of that provision in which the hate crimes sentencing provisions have been applied to a crime against a transgendered person. To our knowledge it has never happened, which says to us quite clearly that that measure and that argument do not hold water. It is not effective and it is not sufficient. We do, however, have examples of cases where transgendered people have been attacked and the court cases document the fact that they were attacked because they are transgendered, and yet that measure has not been applied.
I would cite R. v. Gunabalasingam as one such example. In fact, over the last three or four years we have trained, in hate crime prevention specific to LGBTQ people, over 3,000 police officers in over 20 jurisdictions across this country. A comment we get quite frequently is how do we know if transgendered people are included? The reality is we cannot respond to that question with any authority. There is no precedent to look to and there is no statement by any court that transgendered people are included under the hate crimes sentencing provisions. In addition to hopefully changing that by explicitly mentioning gender identity in these provisions, that would enable organizations such as our own, Egale Canada, and others across this country to speak with clarity and authority when doing training, whether it is with police services, in the school system or in workplaces.
The existing mechanisms for providing transgendered people with human rights protections and recourse in the event of a hate crime are clearly not effective and not sufficient. In our view, it is imperative that the Canadian Human Rights Act and the Criminal Code be amended to explicitly recognize and affirm the equal human rights of trans people — the same rights and protection that all other people in Canada already enjoy but that, in our view, have been unjustly denied to trans people for far too long.
I hope you will consider this bill very seriously, and I will am happy to take questions.
The Chair: Thank you, Mr. Dyck.
Greta Bauer, Associate Professor, Department of Epidemiology and Biostatistics, University of Western Ontario: Madam Chair and honourable senators, I am so happy to be here today to talk to you about what my community and academic colleagues and I have learned from our experience with the Trans PULSE Project.
Trans PULSE is a research project that is a bit unique in that it combines a lot of community knowledge with rigorous methodology to produce the first large survey of trans health in Canada. It is funded through the Canadian Institutes of Health Research. The data I will talk about apply to trans people age 16 and older in the province of Ontario who were surveyed in 2009 and 2010. Our participants represent a broad spectrum of trans identity and community members that fall under the broad umbrella of ``trans.''
While I cannot describe for you the specific, unique experiences of individual trans people — and I do hope that those of you who have not had a chance to talk to people within the trans community get a chance to do that, as well — I can present you with some estimates of things that are incredibly common.
Since we are here today to talk about human rights, discrimination and violence — hate crimes — some of this is very negative. I just want you to be cognizant of the fact that I do not want to paint a picture of trans lives as nothing but doom and gloom, but rather to acknowledge that, amidst the joys, the community and camaraderie of life, there are real threats to the safety of trans people in Canada; there are threats to their physical, mental and social well-being and, indeed, to their full participation in Canadian society.
That said, trans people have some experiences that are similar to the rest of us and some that are different. Trans people represent all segments of Canadian society, including all religions and all ethnic and cultural communities. One in five trans Ontarians was born outside of Canada; one in four is racialized; and one in 14 is Aboriginal. Trans people are us. They are our parents, children, youth, seniors and neighbours. Whether we realize it, all of us have come into contact with trans people. I want to say at this point that all of us have used the washrooms with trans people. There are a lot of trans people out there, some of whom are identifiable and some of whom are not.
That said, trans people have some experiences that those of us who are cisgender or non-trans do not share. Most trans people have known from a very young age that their gender identity — that deep, internal sense of who they are as human beings — did not match their bodies. We know that about 60 per cent of trans people knew this before the age of 10, 80 per cent by the age of 14, and 93 per cent by the age of 19. Yet, despite this early and deep knowledge of who they are, very few trans people are able to express that at young ages. Among those people who socially transition to live in their felt gender, only about 8 per cent were doing that prior to the age of 14. Remember that most people knew at those ages.
Gender identity is generally stable and long-lasting. I want to just say that any perceptions of sudden change — for example, the arguments that we have heard such as ``What if I decide one day I am male or I am female?'' — are the perceptions of outsiders. Within the trans community people, while people may not have expressed it for a while, it is stable and long-standing.
Within Trans PULSE, we sought to document experiences of discrimination that affected trans Ontarians. Unfortunately, despite the non-explicit protections at the federal level and what were at the time non-explicit protections at the provincial level, discrimination was still rampant. We heard about employment discrimination, and we found that 13 per cent reported they had been fired from a job, and another 15 per cent had been fired but were not sure whether it was because they were trans. Sometimes, it is hard to tell these things. Sometimes people simply say, ``You just will not fit in in this environment,'' and it is hard to know.
It is important to note that 17 per cent of people said they had declined a job they were offered because there was not a safe or trans-positive work environment. These are jobs they wanted, applied for and were offered at a time of significant underemployment for trans community members, yet people were willing to turn those down because they did not find it was an environment they could work in safely and positively.
In addition to these kinds of direct discrimination, we see structural barriers as well to employment and other venues for participation: 28 per cent of trans Ontarians said they could not get employment references for work they had done that used the correct name or the correct pronoun; and 58 per cent said they could not get academic transcripts that have their correct name or sex designation on them. Therefore, people are not necessarily even able to fully use the experiences they have in life.
For all of these reasons, it is perhaps not surprising that the median income for trans Ontarians is $15,000 a year, despite reasonably high education. Therefore, there is a significant amount of underemployment and unemployment, and a lot trans people are not getting to contribute to society and to experience the benefits of that in the ways that they want.
You have heard something about violence. In our survey, we estimate 20 per cent of trans Ontarians have been physically or sexually assaulted just because they were trans. This is not counting physical or sexual assaults for other reasons; this is specifically because they were trans. That is one in five. An additional 34 per cent report they have been harassed or verbally threatened for being trans. Many do not report these assaults and attacks to the police; in fact, 24 per cent say they have been harassed by the police for being trans.
I should note as well the continued issues of exclusion of trans people regarding sex-segregated services, which include shelters, hospitals and sexual assault services in prisons. This takes its toll.
We have heard a little bit about identity documents. There are a lot of different ways that people are excluded structurally.
I want to say that, for me, one of the most profound things we found in terms of the toll this takes is when we looked at suicidality. We find that, despite the great resilience of trans people, there is a lot of fear of continued discrimination and hopelessness. Forty-three per cent of trans people have at some point attempted suicide, 10 per cent within the last year. It is phenomenal. These are things we see in Canada only within trans communities and Aboriginal communities. I think they really are representative of the profound social exclusion that is experienced by those communities.
Yet, it is not equal across trans communities; it is not the case that every trans person is at equal risk of suicidality. We can tie these directly to things like the violence we just talked about. Therefore, among those people who had been physically or sexually assaulted for being trans at some point in the past, 29 per cent attempted suicide in this past year.
When I think of suicidality and I turn to the issues of youth that Mr. Dyck and others have talked about today, I want to note that among those 43 per cent who have attempted suicide, a third of them first attempted suicide at less than 15 years of age. An additional third first attempted suicide at an age of between 15 to 19 years old.
Therefore, this is something that we need to think about when we are talking about the potential impact of this bill.
Most trans people know who they are at a young age, yet they are not able to voice that. We have a lot of people out there — and it is not just the youth, though I am focusing on them now — who are trans who are not able to express that completely in their life. For those in these vulnerable places, it is that visible recognition of trans people that can provide a sense of hope, a sense of the future and a sense of potential, in addition to the very direct protections recognition can offer against things like discrimination in particular settings.
This has the potential of undoing what we have described as a cycle of erasure, where silent policies then reinforce the continued invisibility of trans communities and a lack of information, which then in turn feeds back into a lack of policy.
The opportunity of making policy contains within it a few things. There are the direct effects of the policy, such as the educational effects in terms of preventing discrimination and not just allowing for remedy when it does take place. There is also the visibility that is given when trans youth look out and say, ``Someone knows I exist; someone recognizes me; someone thinks I am important and I deserve to be protected.''
We should not underestimate that. We are learning through our research that social support and support for gender identity, even expression, play a profound role in protecting people.
Greater visibility in this policy reinforces more knowledge about trans people, which will feed back into continued development, policy refinement, policy and greater protection. All of this supports the inclusion of trans people in employment, services and more broadly and more fully in Canadian society.
Thank you.
The Chair: We will go to questions, starting with the deputy chair.
Senator Ataullahjan: Thank you for being here. When I heard this bill was coming to the Human Rights Committee, I started speaking to people. There was a clear divide in that anyone 35 and under was very supportive of this bill, and those who were older had issues with it. It seems that much of the discussion is around the bathroom, as we can see right now; we keep talking about the bathroom issues.
The young people think, ``Why will you not support it? It makes sense.'' That is what I hear. The older people would get very upset. That is just a comment.
Could you also discuss access to health care services as a result of discrimination in the trans community? Has this been an issue, and how big an issue has it been?
Ms. Bauer: It has been a huge issue, and it is one where we have some research results that have not been put out yet, but we are working on. Health care access is a big issue in terms of all types of health care.
In the emergency department, we know, for example, that 21 per cent of trans people have avoided going to the emergency department in a medical emergency. I cannot imagine having a medical emergency and feeling like I am safer outside of the emergency department rather than inside. At the extreme end, we have that.
With regard to family medicine, we have a system that is based on family medicine. Most trans people have a family doctor. A lot of people are not able to use that doctor for trans-related concerns. Only half feel comfortable discussing trans issues with their family doctor.
Because we have sex-segregated systems in some hospitals, policies vary in different hospitals. We heard a lot from our participants in the earlier qualitative stages of our project about great difficulty there.
Outside of the Trans PULSE project, I did another study where we actually interviewed physicians about their experiences caring for trans patients. There are difficulties on both sides, so it is not a question necessarily of bad people doing bad things. We have systems set up in ways that do not allow for a trans patient coming in, so doctors had to make special arrangements. They had to say, ``I will walk this patient through; I will find this patient a private room.'' Patients have had to navigate that when they were often sick. There are some structural difficulties in the way that those systems are set up at present that we try to address.
Another thing we heard was with regard to mental health care. Trans people are no more likely than other people to have things like personality disorders and so forth, but they are also no less likely. For trans people with mental health issues, it gets complex because providers will sometimes try to make everything about the mental health issue, or they will make it all about their gender identity, and, one or the other, it does not necessarily address all the issues that they might have regarding their own health.
There are a wide range of health issues in terms of access, some of which are attitudinal, some of which are about training and curricula within systems, some of which are structural, and some of which are blatant discrimination, even violence in health care settings.
Senator Ataullahjan: You said you spoke to doctors. What was your sense about how comfortable they felt with having patients who were transgender?
Ms. Bauer: The people who spoke to them were a group of doctors who were, at the time, medical students, and they interviewed doctors across a range of specialties.
All of these doctors were not necessarily a random sample. They were interested in talking to us and willing to talk to us. Some had had trans patients; some had not. Some had a large number of trans patients; some had had just a handful. These were all people who saw that there were particular issues. Sometimes they did not realize they were issues until they had their first trans patient, tried to refer the individual and realized that not everyone was going to treat their patient well. They had to go by trial and error. Their attitudes were generally positive. They felt they had not been adequately prepared. They felt like the first time a trans patient walked into their office they were scrambling to figure out what to do. They were well-intentioned, not well-prepared.
Senator White: Thank you very much for being here today. I will ask the same question that I asked the last panel of witnesses: Is there anything that either of you would have added to this bill to make it more relevant for the transgendered community in particular?
Mr. Dyck: I think that is a complex question.
Senator White: It is, and I expect a complex answer.
Mr. Dyck: Yes. I would answer that in two ways.
First of all, I will answer a question that you did not ask, in that I think we would be more comfortable with not including the definition — with removing the definition. In our view, including a definition of an identifiable group within a human rights act is rather unprecedented in this country. Certainly, we understand that this is a ground that not all people are very familiar with, but, at the same time, we would be more comfortable with an act that did not include a definition and that was more responsive to the reality of trans people.
That being said, given that there was quite a strong feeling that a definition should be included, we feel that this is good, well-founded and internationally recognized and supported definition.
The second thing is that there has been a lot of debate about the issue of gender expression, whether it should or should not be included. In our view, we certainly support the bill as it stands. We are interested in ensuring that we pass a bill that is as inclusive and as thorough as possible. From that perspective, we would have liked to see gender expression included, given that there is some uncertainty as to how this bill will be interpreted with or without gender expression.
That being said, a number of examples speak quite clearly to this issue of identity versus expression. Most recently is the case of Saskatchewan (Human Rights Commission) v. Whatcott, which recently came through the Supreme Court of Canada. This case was in relation to hate speech targeting sexual orientation, and we think it certainly holds weight here. The court said that where conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as a proxy for attacks on the group itself.
Similarly, in the case of Trinity Western University v. British Columbia College of Teachers, the courts said that human rights law states that certain practices cannot be separated from identity, such that condemnation of the practice is a condemnation of that person.
None of these cases directly apply to trans people, so there is that uncertainty of whether or not the same comparison can be made. We feel quite strongly that it will be made, but, that being said, the bill might have been better with gender expression included.
Ms. Bauer: I would have liked to see gender expression retained as well, although I am somewhat relieved after talking to colleagues internationally. As you may know, policies in different arenas sometimes include gender expression and sometimes do not. It does not seem, just based on my conversations to date, that there has been much of a difference as to how those have been interpreted. Some people have argued to me privately that in their countries, where is it is just gender identity, it has actually been interpreted more broadly.
My concern is that I would not want the burden to fall on individual trans people, if there were cases that had to go through the system, to be able to argue out the fringes of this policy and where it ended. I think trans people have been subjected to enough burdens, and going through cases is just exhausting for anyone and takes over a hunk of one's life. To the extent that this can be refined, very clear and not have to be argued out in those ways, it will be beneficial.
Senator White: Thank you very much to both of you.
Senator Munson: Speaking of other parts of the world, I am curious. Is there a country that is leading the human rights parade, so to speak, in dealing with the transgender issue that we can use as examples?
I am asking this because 20 years ago we were not even having this conversation, maybe even 15 or 10 years ago. Perhaps we were 10 years ago. I keep thinking of older Canadians. You have all these statistics, and with the work I do with children's rights and so on, we have statistics, but people become adults. I have a feeling of how difficult it must be for Canadians by the thousands who are in their forties, fifties, sixties and seventies who have lived this way and want to be having this conversation at this table as well.
When it comes to other countries, is there a country that is leading by example?
Mr. Dyck: I would be happy to respond to that. To my knowledge and according to the most recent data I have, 16 countries have laws prohibiting discrimination based on gender identity, in addition to, obviously, three provinces and one territory here in Canada. Sixteen U.S. states have prohibited discrimination based on gender identity. There are also eight countries with hate and bias crime provisions based on gender identity.
From those countries, I have not been able to look through each one and see what the situation has been.
Of the two that I would point to as potential examples or countries that are leading the way, the first would be the Netherlands. They have been working on these issues for quite some time and, in fact, have consistently, during Canada's Universal Periodic Review process at the United Nations, encouraged us to do the same. That is a situation where there are still challenges, particularly in terms of accessing identity documents, but where, in terms of discrimination provisions and hate crime provisions, a lot of work has been done.
The second country I would point to is Argentina. They have been doing phenomenal work. In my opinion, as a public policy professional, they are perhaps leading the way in the world in terms of recognizing and affirming the dignity and equality of their trans citizens.
I believe last year or the year before they passed an unprecedented law that recognizes the gender identity of trans people and recognizes the principle of self-determination in choosing one's own name and accessing identity documents that accurately reflect their lived experiences and identities.
Those would be the two countries that I would point to as particularly exemplary.
Senator Munson: What is the issue with the seven other provinces? What are they again?
Mr. Dyck: The seven provinces that have not?
Senator Munson: Yes, have not. Name those provinces.
Mr. Dyck: I am not entirely sure if this is a rhetorical question.
Senator Munson: The problem with this country is we always talk about provincial jurisdiction and so on. We are afraid to think outside the box. We are afraid to think as Canadians. I am serious. We do this all the time and it drives me crazy.
We heard from the other witnesses and from you, Mr. Dyck, that this is a good step. Can you be specific? People talk about other steps. What can work in tandem with this bill? What can work well to bring this out of the horrible shadows?
Mr. Dyck: I will try to stick to time limits.
There are a host of other pieces of legislation and regulations that need to be changed. We have heard a lot about identification. Across this country the requirements and regulations around obtaining identification documents, whether it is to accurately reflect your name or accurately reflect your gender, are significantly disparate across the country. Each province has its own regulations around, for example, a birth certificate or a driver's licence or a health card, and the regulations might be different for each. Then, at the federal level, you also have your passport or other federal documents. All of those regulations are quite inconsistent, and that is a significant challenge for many people. I am sure Professor Bauer could speak more to the identification documents.
Our education system is significantly unprepared to accommodate and ensure the safety and inclusion of trans people. We have talked about bathrooms, but we also talk about participation in sports teams or simply combating bullying and harassment.
We have also talked about significantly high suicide rates among trans people. We do not fully understand why that is, in part because few people have done the research. That is another significant area. I feel like I am beginning to ramble now but it snowballs. There is little research and data, and little is being done.
Ms. Bauer: I can add to that. I will not repeat anything that was just said, but we also need to pay attention, given the marginalization that people experience as trans people, to the extreme marginalization that some people within trans community experience. I am thinking about things like attention to the safety of trans people within both federal and provincial prison systems and the ways we deal with people living in poverty. If you take the ways that discrimination plays out, you compound that when you are talking about a lack of access to resources, or people who play particular roles or are cut out from playing particular roles in society.
It is not always just policies that are about trans people, sometimes it is about ensuring that trans people are not erased from policies that look like they are about other topics that do not look like they are trans-specific. I would want to make sure this becomes something that is on the agenda and not just when we are talking about gender identity today. This should be on the agenda when we are looking at all other aspects of law.
Senator Munson: Thank you.
Senator Mitchell: Thank you very much to both of you. I am sorry I am late; I was at another committee of which I am a member. Of course, under the Rules of the Senate any senator can sit on any committee, but it would not be my priority in that context. I had to be there but I am here now, so if I ask a question that you have already answered say, ``Never mind,'' and I will move on to the next one.
So many of us believe this bill is absolutely necessary and relatively easy to do in one sense. It is not earth-shattering in any sort of normal context when you think about extending protections and rights to people who are our neighbours, friends and family members.
One of the major things is not just protection; it is also a question of education, of raising and elevating the issue for all Canadians. A corollary of that is that it also sends a message, particularly probably to young transgender people, that there is a validation and vindication of what have they are going through and recognition at a high level in a principled way of their place and their rights in our society.
Is that not the case? I do not mean to ask a leading question, however.
Ms. Bauer: It was a leading question, but it gives me the opportunity to add something that I wanted to say as well in terms of the potential of this particular bill and that is that with education comes support. In our research we have directly tied social support for trans people to depression. With more social support there is less depression.
Importantly, we are starting to recognize, as we work through more of our analyses, the importance of direct support for someone's gender identity and expression. Where that comes out clearly is parental support for trans youth to the extent that parents, when their child comes out to them as trans, can go out and find good information, support and speed the process of them becoming supportive of their own child.
As an example, we compared trans youth who were out to their parents. We compared the youth who said their parents were supportive of their gender identity and expression with those whose parents were anything less than very supportive. We found amongst the youth whose parents were very supportive that 4 per cent had attempted suicide in the last year. While that may sound like it is far too high, it is 93 per cent lower than the 57 per cent of trans youth without strong parental support who attempted suicide in the last year alone.
We do not see numbers like that in research, when you see a 93 per cent reduction with strong parental support. We also see those youth with strong parental support report that they are more satisfied with their lives. They are more likely to be adequately housed and have higher self-esteem.
We are talking about early in people's lives. This is the kind of thing that will carry forward in terms of all that people are able to be or whether they continue forward in those lives at all. The more we can do in these instances the better to help the people who are in the lives of trans people also be supportive to keep relationships together, to keep families together, to keep communities together, and to allow people to retain their cultural communities. It is horrendous when people lose their cultural or religious communities when those have been an incredible part of who people are.
Those educational purposes are not just about educating people to not discriminate, but it is really about enabling the conditions for the kind of support we need to see.
Senator Mitchell: One of the arguments used against this bill by people who have engaged in a professional debate is this idea of definition. I think you were alluding to that when I came in, but that is the fact it is very subjective because it refers to a deeply held personal belief.
There are two things that maybe you could comment on. One is that in the human rights legislation now religion is protected, and that is a deeply held personal belief. Second is that the courts also deal with perception and a person's state of mind because that is what the courts have to determine in a criminal case, whether or not something is intentional. One might even argue that in most court cases it comes down to what was the frame of mind and how people were thinking. The courts are well experienced, well trained and well set up to always evaluate states of mind and deeply held personal beliefs.
Could you comment on those two?
Mr. Dyck: I certainly agree. I would echo everything that you just said. What I would add is that the very statute that we are looking at amending here today depends on exactly that — the hate crime sentencing provisions. We are looking at hate and motivation, which is exactly one's state of mind. The very fact that that statute exists already and we are looking at amending it would support exactly what you just said. Courts are prepared to do this. They do it as a function of a judicial system in a democratic nation. Certainly, I think, this is nothing new. It is simply ensuring that the statutes that currently exist are applied equally to trans people, and I would argue they are not currently being applied equally.
Senator Mitchell: Do you want to say anything?
Ms. Bauer: I brought up earlier that a vast majority of trans people know at a very young age that they are trans. It is not necessarily a perception in the sense of something like an in-the-moment motivation or just a passing moment in time. For most people this is something long-standing and stable. Most of us, in the event of a catastrophic event where we lost parts of our body, would still know who we were. It is the kind of thing people experience when they are young. They know who they are.
While some of us who are not trans do not experience friction around that in our lives, it becomes more apparent to people who are trans because of that discordance between how people are treating them and who they know themselves to be. When we are talking about perception, we need to pay attention to the fact that there is perception in the moment and then there is core knowledge about oneself. I think the language is a little off when we talk about perception.
Senator Mitchell: In one sense, all hate and discrimination are not about the deeply held personal beliefs of the person who is the object of the hate and discrimination; it is all about the deeply held personal beliefs of the people who are discriminating, and they are, by definition, always subjective, because whatever belief you have that is discriminatory cannot be right. Society generally is forever assessing those kinds of beliefs. I think the courts are well prepared to deal with that.
I am interested in the trade-off of this bathroom argument, that somehow if we do this, people would actually be able to use these provisions as a legal argument for justifying lewd, inappropriate and criminal behavior.
Have you come across any case in jurisdictions where these kinds of provisions exist now where that has ever been done? Why would we ever think the courts would allow that? Again, the courts are all about determining what is appropriate behaviour and what is inappropriate behavior.
Mr. Dyck: In our research, looking globally — and to echo what Mr. Garrison said earlier — we have found no example of any attempt to use similar provisions in any other jurisdiction illicitly. Even if, for some reason, there were an attempt, this bill in no way impacts existing Criminal Code provisions that protect against harm, abuse and exploitation. In no way would this bill have any impact on that whatsoever.
Second, trans people are exposed to harm quite regularly, often in bathrooms. As I cited earlier from our study, 51.6 per cent, I believe, of trans youth said that their washrooms and change rooms were the most unsafe spaces in their schools. Far from being a risk to others, these are spaces that are often currently risks for trans people.
I cited earlier the example of Newfoundland and Labrador, where a lot of work has been done around this. The response to implementing similar policies at school board levels has been to start developing gender-neutral facilities, which provide greater safety for everyone, for all individuals and communities, whether they are trans or not trans.
We have no reason to believe that adopting the provision at this level would have anything other than a similar impact.
Senator Mitchell: Another implication of this, in a sense, is not providing this community, transgendered people, with these kinds of protections because there may be a possible logical probability — I do not know how I can diminish it anymore — that someone might somehow, in a perverse way, utilize this to try to justify or motivate inappropriate behavior. However, is that not kind of like holding this entire community hostage because someone might do something that has never, to the best of our knowledge and to the best of your knowledge, been found to be done anywhere these provisions exist?
Mr. Dyck: Exactly. I would argue quite vehemently that to take that approach would be, in effect, to establish a hierarchy of rights, to say that one group or one identity is more worthy of protection than another group. That, in our opinion, would certainly be an affront to our fundamental beliefs, as Canadians, in the equality of human dignity.
Ms. Bauer: I would like to add to that. It has been mentioned that we have no good estimates of how many Canadians are trans. However, recently, the first large population-based study in the U.S. to ask this question came out. It was for the State of Massachusetts. They found that half of 1 per cent, or 1 in 200, adults in Massachusetts identified as trans in some way.
I have argued for a long time, through my involvement with the trans community, that there are a lot more trans people out there than people realize. People tend to think that trans people are some kind of unicorns or rare creatures that you will never encounter, and yet I would bet my life on the fact that all of us have used washrooms with trans people. It is not the case that we do not use washrooms regularly with trans people; we just do not know it, because trans people are there to do the same thing everyone else is, which is to use the washroom.
If there were one day where everyone who was trans turned purple for the day — I say that because I think we are at the same place we were with gay, lesbian and bisexual people 20 or 30 years ago, when people would maintain that they personally knew no one who was gay. Now it is pretty hard to find someone who will maintain they do not know someone who is gay, and yet many people think they do not know anyone who is trans. In 20 years, I think that will seem preposterous.
There is this issue of erasure and invisibility. It is this very erasure that allows us to think that we do not go to the washroom with trans people all the time. It seems to me to be the kind of argument that can only be borne out of that type of invisibility, because it is a non-issue.
Senator Munson: I have a point of clarification on your statistics, some of which were quite alarming. You said one in five are born outside of Canada; is that right?
Ms. Bauer: Yes.
Senator Munson: How did you go about getting your statistical evidence on those born outside of Canada? Are there ratios?
Ms. Bauer: Born outside of Canada? We ask people where they were born.
Senator Munson: I know that, but did your statistical evidence involve 2,000 or 3,000 people?
Ms. Bauer: I would be happy to tell you in great detail what we did. We used a newer method, called respondent- driven sampling, which is a way of getting at people who are part of hidden populations, where you cannot get a random sample because the people are not identifiable. Our sample size was 433 in Ontario, which is larger, as per the base population, than any other survey I have seen. It is not the absolute largest sample size but as per the population that it represents.
The Chair: Many of the questions I had were covered by you, but one question I have has not been covered. When listening to this debate, a question raised by commentators is how sex-specific sports teams would be affected by this bill. Could being born as one particular sex be a bona fide requirement for some teams? How would you suggest this concern be dealt with?
Ms. Bauer: I do not have data on sports participation. I know people talk to us about great difficulties they had in participating in sports, because sports are so often sex-segregated as well. For people for whom sports had been a part of how they approached life and dealt with stress, it was a positive role in their life and they were sometimes cut off from that.
This debate often happens at the higher level of sports. The Olympic committee already has policies. There are policies that exist, and they do not require that people participate by their birth sex. They have specific rules, because sex is multi-dimensional. You have a baby, and you look at the genitalia and decide its sex. However, oftentimes athletic ability is more about hormonal sex than it is about organs, which would play virtually no role in most sporting activities.
I cannot give you an idea of what would be a good policy around that. I think it is reasonable to say that leaving trans people entirely out of sports and saying that sports is only the realm of cisgender people at all levels, from lower levels to the highest level of competitive sports, is obviously untenable. It is cutting people out of an incredibly important part of their lives, something that has played an important role and something that we value socially as well.
That might be something where the individual policies have to be hammered out in a way that is respectful of equal protections of trans people within the considerations of specific sports. I cannot give a prime example of how that should be done, only to say that I think it should be done in a way that works for trans people logically to allow their participation.
Senator Mitchell: You mentioned that you have done your Trans PULSE studies in Ontario, and I think you said a sample of 433. Have you been able to do studies elsewhere in Canada, or is it strictly Ontario?
Ms. Bauer: That is strictly Ontario. It would be great if we had more data. We have talked about the lack of data here. There is the Egale school survey and our survey. There are a few. Some qualitative studies have been done, interviewing smaller groups of trans people.
We do not have great data. Part of the issue is that in most large surveys — the kinds of surveys that are done by Statistics Canada, for example — trans people are completely invisible. As we progress forward, and as other measures are added to those surveys, it would be great to collect those.
I think the experience in Massachusetts with including the question on trans people in the Behavioral Risk Factor Surveillance System survey shows you can get enough trans participants to analyze, you can get enough data, and it is worth doing for those large population surveys. That will add to our knowledge.
Senator Mitchell: When you say trans people are invisible in Statistics Canada surveys, is that because they are just not mentioned and the question is not asked, or is it because you cannot get to transgendered people because, for example, many of them may be homeless?
Ms. Bauer: We talk about trans people and homelessness, but let us remember also that most trans people are not homeless. Many are reachable, and there are trans people who are also well off. We have a whole range of people.
Trans people are not identifiable because there is no question to allow trans people to identify they are trans on our health population surveys that we do, generally speaking, in Canada. For those reasons also I have certainly heard voiced often within the trans community that people are not necessarily willing to participate in those because we, as a country, do not care enough to ask or to allow people the space to identify themselves.
For example, I know trans people who have refused to participate in the census or in other forms of federal data collection because there is no place for them to acknowledge who they are.
There are those two things: unwillingness to participate, given the way these are conducted, and part of that being the fact that there is not a space for people to identify themselves or there are other questions that make assumptions about people that may not hold for trans people.
Senator Mitchell: I get your point about the fact that the majority of trans people actually are housed and many are wealthy and so on, but what is the percentage of homelessness? It would be hard to determine definitively, but do you have some idea of that?
Ms. Bauer: I should have this all. We have so many statistics at this point it is not currently in my head, but I could get to you how many people are currently homeless and how many have had the experience of being homeless.
You may know that with homelessness people often cycle in and out between being homeless and living in substandard housing and unstable housing of other types. We have those data; I just do not have them at the top of my brain right now.
Senator Mitchell: Given that the data is Ontario-based, do you anticipate there would be much difference in the statistics, just knowing what you know about the community and about cultures between and amongst the provinces?
Ms. Bauer: There may be. One of our reasons for deciding to do a provincial survey rather than a national one when we first started was because there are some factors that impact trans lives based in provincial policy, specifically policies around health care systems, whether or not things like sex reassignment surgery are funded, things like that.
We have now seen changes at the provincial level in terms of birth certificates, health cards and other identity documents that are handled at the provincial level as well. It is hard to say to what extent. I do expect things vary.
I know some people in other provinces have said there are many more trans-specific services in Ontario. I think that is definitely true for Toronto. I doubt people in the North would argue that is the case. There may be differences, but also differences regionally within specific provinces given the size, geography and cultural differences across Canada.
Senator Mitchell: This is a very powerful presentation and very interesting.
One issue that compounds a lot of public policy debate and difference is how much money everything will cost. In this kind of environment it seems that may underlie some of these things. In fact, these provisions do not specifically involve a great deal of cost to government. The courts, to some extent, might find there are more cases but, really and truly, if there were violence now against anyone they would go to court anyway; they would just go to court on different grounds now.
Second, there is not as much medical cost. The whole question of the medical side of transgender, and people make that decision, but how prevalent is that? Many people do not decide to go that route, do they?
Ms. Bauer: Within the trans community, about 75 per cent of people need to medically transition, based on our data. That can involve different things; it does not always involve surgery. It could involve multiple surgeries, while for some people it may involve just hormones. People do what they need to do to alleviate the gender dysphoria to allow them to feel comfortable with their bodies. Even people who might have preferred to have been born with some different anatomy are not necessarily always willing or interested in going through the hazards of a surgical solution to that.
It varies a lot. We have a report, requested by the Ministry of Health in Ontario, that looks at unmet need for provincially funded sex reassignment surgery, so that is available if people would like to see that. I cannot necessarily speak to the costs.
This is a federal domain, and a lot of those health care costs are at the provincial level. You can all correct me if I am wrong, but I believe you are covering Aboriginal health, military and federal prisons, right?
Senator Mitchell: Yes.
This would not directly address the issue of changing names and driver's licences and all that, but it would elevate this issue to a greater level of prominence so policy-makers could begin to see this is something they need to act on. It would probably have a positive effect in that regard.
Ms. Bauer: I would hope so. We took a look at that for the Canadian Human Rights Commission. We looked at the subgroup of trans people who socially transitioned to live full-time as men or as women, so people who had a fairly conventional gender and were living in it full-time and had legally changed their names, so the group of people who would presumably want to change their sex designations on all documents. In that group only about 30 per cent had changed all of their identity documents.
I think someone mentioned earlier that there are different policies for different types of documents, and there is a huge bureaucratic burden to go through that, and different requirements for different types of documents. At the federal level alone you have passports, Indian status cards, military IDs, permanent resident cards and these different types. At the provincial level you have birth certificates, driver's licences and different types of provincial ID for non- drivers and things like that. That is definitely something that needs to be brought into alignment if people are going to be able to navigate that reasonably.
The Chair: I would like to thank Mr. Dyck and Professor Bauer for being here today. You certainly saw the great interest among senators to learn about this issue and advance the inclusion of trans people.
Thank you both for being here on such short notice.
(The committee adjourned.)