Gender Identity Bill (C-279) Backgrounder: Gender Expression
Member of Parliament Randall Garrison (Esquimalt—Juan de Fuca, NDP) has introduced a private member’s bill (the Gender Identity Bill, C-279) in the federal House of Commons aimed at providing equal human rights protections for trans people in Canada. If adopted, the bill as it currently stands would include the phrases “gender identity” and “gender expression” within a) the protected grounds explicitly enumerated in the Canadian Human Rights Act, as well as within the definition of an “identifiable group” for the purposes of b) laying a charge for hate propaganda or c) determining hate as a motivating factor for sentencing provisions with the Criminal Code.
It is clear from past debates and discussions during the current session of Parliament that the bill will not pass while the phrase “gender expression” remains in the text. In order to pass the bill through second reading, Mr. Garrison was obliged to offer a verbal commitment to remove “gender expression” from the bill. As such, Egale Canada sought and obtained a legal opinion on the implications of this approach.
In the opinion of our lawyers, there would be little to no impact on the legal protection provided to individuals who identify as “trans, transgender, transsexual or intersex” if Bill C-279 were passed without including “gender expression” in the amendments to the Criminal Code and Canadian Human Rights Act. The removal of “gender expression” could have some impact on legal protections for those who cross-dress but do not identify with the gender they are expressing. In situations where cross-dressers do identify with the gender they are expressing, even if this identification is not constant, it is likely that they would be protected under “gender identity”.
Canadian Human Rights Act
1) It is likely that “gender identity” will be interpreted broadly by the courts and the Canadian Human Rights Tribunal to include related aspects of gender expression for the amendments to the Canadian Human Rights Act. The Supreme Court of Canada has repeatedly stressed that a “broad, liberal and purposive approach is appropriate when interpreting human rights legislation” in order to advance the broad, underlying policy considerations. Furthermore, there are other jurisdictions that include a concept of “gender expression” within their definitions of “gender identity”, and Canadian courts and tribunals may have regard to those definitions in delineating the scope of “gender identity” in future cases. As such, it is likely that excluding the term “gender expression” from the Canadian Human Rights Act would have no impact on the legal protections added by the Gender Identity Bill.
2) Any risk that cross-dressers who do not identify with the gender they are expressing would not be protected under the Canadian Human Rights Act without the inclusion of “gender expression” would likely be determined on a case-by-case basis. It would be highly fact specific and likely depend on the nature of the alleged discrimination at issue.
3) It is unlikely that the omission of “gender expression” within the Criminal Code hate crime sentencing provisions will have any impact given that the courts are already entitled to consider “any other similar factor” in sentencing, which could include “gender expression”.
4) In the context of the hate propaganda sections of the Criminal Code, there is a risk that “gender identity” alone will not include protection for cross-dressers who do not identify with the gender they are expressing. These sections of the Criminal Code could be interpreted more narrowly in favour of the accused in light of the doctrine of strict construction. This doctrine, when it applies, requires that a penal statute be interpreted in favour of the accused when there is reasonable doubt as to the meaning or scope of the text. Again, such situations would likely be highly fact specific and determined on a case-by-case basis.
5) There is a risk that including “gender expression” in the amendments to the Criminal Code would lead to a constitutional challenge and significant risk that “gender expression” could be struck down for being unconstitutionally vague or an unreasonable limit on freedom of expression for the accused, particularly in the context of the hate propaganda provision. In fact, the hate propaganda provision of the Criminal Code has survived Charter challenges because it is not overly vague and was found to be a reasonable limit on freedom of expression in its current form. This argument would be much more difficult to successfully make with the inclusion of “gender expression”, which is open to many interpretations.
In summary, there is a risk that passing Bill C-279 without “gender expression” could limit the protection provided to cross-dressers who do not identify with the gender they are expressing, particularly for the hate propaganda amendments to the Criminal Code. It is anticipated that the inclusion of “gender identity” alone in the amendments to the Criminal Code and Canadian Human Rights Act would provide legal protection to individuals who identify as “trans, transgender, transsexual or intersex,” and this would not be impacted if Bill C-279 were to be passed without “gender expression”.
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