Bill C-279, the Gender Identity Bill
Frequently Asked Questions
- It would amend the prohibited grounds of discrimination under the Canadian Human Rights Act, explicitly making it illegal to discriminate on the basis of gender identity;
- It would amend the Criminal Code, making it illegal to advocate genocide, or willfully and publically incite hatred based on gender identity; and
- It would amend the Criminal Code, requiring judges to increase a sentence for a crime when there is evidence that the crime was motivated by bias, prejudice or hatred based on gender identity.
Effectively, Bill C-279 would legally recognize and protect the human rights of trans people in Canada, as well as require courts to recognize and penalize hate crimes against trans people. The Gender Identity Bill does not add any special protections for trans people; it ensures that the same protections that other people in Canada already enjoy are applied equally to trans people.
This kind of daily and systemic discrimination and hate crime across a lifetime can have a significant effect on mental health, and has certainly contributed to the higher overall rates of mental health issues faced by trans communities: rates of depression are as high as two-thirds; 77% of transgender individuals in Ontario report having considered suicide; and 43% have attempted suicide at least once.
The Gender Identity Bill is needed to help address and prevent discrimination and harassment against trans people in Canada. It also enables stronger recourse after hate crimes against trans people have occurred.
There remain provinces and territories whose legislatures have not yet passed bills that would explicitly add protections for trans people to their human rights codes. Nonetheless, most of these do acknowledge gender identity as a form of sex discrimination on their websites or in publications by their human rights bodies.
While these jurisdictions do provide implicit protections for trans people, there are some important deficiencies inherent to this approach to human rights which make it complicit in sustaining the inequality and discrimination that many trans people in Canada experience as a daily fact of life.
For example, in a 2014 case known as CF v. Alberta (Vital Statistics), the Government of Alberta contested the applicant’s claim that gender identity is an analogous ground to sex and is implicitly covered by the province’s human rights legislation. As a result, the Court of Queen’s Bench of Alberta was required to deliberate on this question before it could consider whether CF had been discriminated against. This analysis occurred despite the fact that at least seven human rights tribunals had already determined this, and numerous cases had already been accepted on this ground, dating back close to twenty years. Implicit protections from discrimination based on gender identity place an additional onus on trans people, making tribunal and court cases longer and more costly to complete. It is unjust to require trans people to pay a higher price to access their human rights than other communities in Canada.
Finally, failing to explicitly include gender identity within Canada’s various human rights statutes may in fact have the effect of perpetuating and legitimizing discrimination against trans people. The Supreme Court of Canada clearly recognized this effect over a decade ago in the case of Vriend v. Alberta, when it required Alberta to read sexual orientation into its provincial human rights legislation. The Supreme Court stated that:
“The denial by legislative omission of protection to individuals who may well be in need of it is just as serious and the consequences just as grave as that resulting from explicit exclusion… exclusion, deliberately chosen in the face of clear findings that discrimination on the ground of sexual orientation does exist in society, sends a strong and sinister message. The very fact that sexual orientation is excluded from the IRPA [Individual’s Rights Protection Act], which is the Government’s primary statement of policy against discrimination, certainly suggests that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination. It could well be said that it is tantamount to condoning or even encouraging discrimination against lesbians and gay men. Thus this exclusion clearly gives rise to an effect which constitutes discrimination.”
Arguably, as analogous grounds, the words “sexual orientation” in the above paragraph could be replaced with “gender identity,” and Alberta’s Individual’s Rights Protection Act replaced with the Canadian Human Rights Act. The effect would be the same: choosing to exclude gender identity from Canada’s human rights legislation sends a strong message that trans people are not as valued and not as deserving of recognition and protection as other members of our society. The Gender Identity Bill would remedy this, ensuring that employers, service providers and public officials are clearly educated in their duties and obligations to address discrimination against trans people.
While this argument makes sense in theory, it has not translated into reality. In the history of Canada’s hate crime provisions, there is no apparent evidence of a case in which the provisions have been applied to a hate crime based on gender identity, even where such evidence has been presented to the court and recorded in the ruling. The Criminal Code, as it stands, is not effective in addressing hate crimes against trans people in Canada and it does not provide trans people with protections equal to those afforded to other members of society.
The current hate crime provisions do not recognize trans people at all, making it perfectly legal in Canada to advocate genocide against the trans community.
The Gender Identity Bill would also amend the hate propaganda and hate crime sentencing provisions of the Criminal Code. This means that, when there is evidence that a crime was motivated by bias, prejudice or hatred based on gender identity, a judge would be required to increase the sentence for the crime to account for this aggravating factor. This is already the case for other hate crimes.
Finally, the Criminal Code amendments would make it illegal for anyone in Canada to advocate or promote genocide, or to willfully and publically incite hatred against trans people, as is already the case based on colour, race, religion, ethnic origin and sexual orientation.
These concerns often center on the case of Christopher Hambrook, a man who claimed to be transgender in order to gain access to a women’s shelter in Toronto where he sexually assaulted two women in January and February 2012. While Mr. Hambrook’s actions were horrendous, there was no relation between his crimes and Ontario’s human rights protections for trans people.
As it stands, Mr. Hambrook was duly convicted for his crimes, and sentenced to prison indefinitely. There is no evidence to suggest that the application of the Criminal Code would change in any way should explicit protections based on gender identity be adopted.
As of May 2012, seventeen countries had enacted laws prohibiting discrimination based on gender identity.
Sixteen US States had laws prohibiting discrimination based on gender identity, and eleven had included gender identity within their hate crime provisions.
Eight countries had enacted hate/bias crime provisions based on gender identity.
 C. Taylor et al., Every Class in Every School: The First National Climate Survey on Homophobia, Biphobia, and Transphobia in Canadian Schools. Final Report. (Toronto, ON: Egale Canada Human Rights Trust, 2011), 15–16.
 XY v Ontario (Government and Consumer Services) (HRTO 726 2012).
 CF v Alberta (Vital Statistics), CanLII, 36 (ABQB 237 2014).
 Vriend v. Alberta, 1 SCR 493, 98, 100 (C 1998).
 Criminal Code, R.S., 1985, sec. 718.2(a)(i).
 Cf. R v Gunabalasingam, CanLII 19232 (ON SC 2008).
 Lucas Paoli Itaborahy, State-sponsored Homophobia: A World Survey of Laws Criminalising Same-sex Sexual Acts Between Consenting Adults (ILGA, May 2012).
 * Indicates states with hate crime provisions based on gender identity in addition to Maryland (2005) and Missouri (2001).