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FAQ – About C-279

Bill C-279, the Gender Identity Bill

Frequently Asked Questions

What does the Gender Identity Bill do?

The Gender Identify Bill is aimed at providing equal human rights protections for trans people in Canada. If passed, the Gender Identity Bill would accomplish three things:

  1. 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;
  2. It would amend the Criminal Code, making it illegal to advocate genocide, or willfully and publically incite hatred based on gender identity; and
  3. 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.

What does 'Gender Identity' mean?

“Gender identity” refers to a person’s deeply felt internal and individual experience of gender—their internal sense of being a man, woman, or another gender entirely. Everyone has a gender identity, but a person’s gender may or may not correspond with the sex assigned at birth. Since gender identity is internal, one’s gender identity is not necessarily visible to others. Gender identity is not the same as sexual orientation.

Why do trans people need human rights protections in Canada?

Trans people in Canada often face an alarming degree of discrimination, harassment and violence. In a recent nationwide survey, 74% of transgender youth reported experiencing verbal harassment in school, and 37% reported experiencing physical violence.[1]

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.

Aren't the human rights of trans people already protected in Canada?

Every provincial and territorial government in Canada has a human rights code, including the federal government. These codes list grounds under which people in Canada may not be discriminated, such as race, sex and disability. Until recently, most jurisdictions in Canada did not include gender identity as a protected ground.  However, beginning in 2004, certain provinces and territories began to explicitly prohibit discrimination against trans people by amending their Human Rights Act to include gender identity. In these jurisdictions, claims of discrimination on the basis of gender identity may be filed in the same way as any other discrimination claim, in contrast to those jurisdictions in which gender identity has not been explicitly included.

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.

Why do human rights protections need to be explicit?

There are a number of important differences in the ways in which explicit and implicit human rights protections are applied. While explicit protections enable someone who has been the victim of discrimination to file a complaint directly to a court or tribunal based on the relevant ground(s)—such as gender identity—implicit protections require a complainant to first prove that they are covered by that jurisdiction’s human rights legislation. In the absence of explicit protections, this generally has to be done every time someone files a complaint.

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.[3] 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.”[4]

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.

Aren't trans people in Canada already protected against hate crimes?

The hate crime sentencing provisions of the Criminal Code state that a court should increase a sentence to account for aggravating circumstances, including that a crime was motivated by bias, prejudice or hate based on “race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor”.[5] While gender identity is not explicitly included in the list of grounds, many have speculated that the phrase “or any other similar factor” is broad enough that crimes targeting trans people could be covered under this provision.

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.[6] 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.

Who would be affected by Bill C-279?

The Canadian Human Rights Act protects people in Canada from discrimination when they are employed by or receive services from the federal government, First Nations governments or private companies that are regulated by the federal government such as banks, trucking companies, broadcasters and telecommunications companies. In amending the Act, the Gender Identity Bill would affect all of these industries, in that they would be explicitly prohibited from discriminating against trans people, as well as bear an obligation to proactively ensure that trans people are treated equally. This is the same obligation that such entities already bear based on similar grounds as race, national or ethnic origin, colour, religion, etc.

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.

What impact would this Bill have on public bathrooms and other sex-segregated spaces?

In debate over Bill C-279, some concerns have been raised that the amendments it proposes could somehow enable cisgender men to access women-only spaces, such as public bathrooms, putting women and children at risk of sexual exploitation. This is completely false. In no way would Bill C-279 impact existing Criminal Code provisions that protect against harm, abuse and exploitation. It will not enable people to gain access to sex-segregated spaces in which they do not belong, nor will it inhibit the courts’ ability to prosecute and convict those who perpetrate harm, abuse or exploitation.

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.

Have any other countries enacted similar legislation?

In addition to one territory and five provinces in Canada, similar legislation has been adopted in numerous jurisdictions around the world, with more states, regions and international institutions increasingly following suit.

As of May 2012, seventeen countries had enacted laws prohibiting discrimination based on gender identity.[7]

Sixteen US States had laws prohibiting discrimination based on gender identity, and eleven had included gender identity within their hate crime provisions.[8]

Eight countries had enacted hate/bias crime provisions based on gender identity.

 


[1] 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.

[2] XY v Ontario (Government and Consumer Services) (HRTO 726 2012).

[3] CF v Alberta (Vital Statistics), CanLII, 36 (ABQB 237 2014).

[4] Vriend v. Alberta, 1 SCR 493, 98, 100 (C 1998).

[5] Criminal Code, R.S., 1985, sec. 718.2(a)(i).

[6] Cf. R v Gunabalasingam, CanLII 19232 (ON SC 2008).

[7] Lucas Paoli Itaborahy, State-sponsored Homophobia: A World Survey of Laws Criminalising Same-sex Sexual Acts Between Consenting Adults (ILGA, May 2012).

[8] * Indicates states with hate crime provisions based on gender identity in addition to Maryland (2005) and Missouri (2001).

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