Bill C-16: Canadian Human Rights Act - Third Reading
Honourable senators, I rise to speak at third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code by adding the words "gender identity" and "gender expression" as prohibited grounds of discrimination.
Colleagues, as I said in an earlier speech in support of Senator Plett's amendment to Bill C-16, I support this legislation and its virtuous intent to provide protections to transgender persons.
However, I note, once again, for the record, that there are no explicit protections for transgender people in Bill C-16, nor does the word "transgender" appear anywhere in the legislation. Instead, Bill C-16 creates protections for "gender identity" and "gender expression," vague, loose concepts with no precise legal definitions.
While I do intend to vote in support of this legislation, I would like to register my sincere concerns about the potential negative impact that these imprecise and vague words will have on the rights of women and girls once they are enshrined in our Criminal Code and human rights code.
While it is unquestionable that transgender individuals should enjoy the same protections as every member of society, such protections must not come at the expense of the rights of others, particularly women and girls. Unfortunately, because of the way that Bill C-16 is drafted, there is cause to be concerned.
For example, during committee hearings, we received testimony from Hilla Kerner, Collective Member at the Vancouver Rape Relief and Women's Shelter, the oldest rape relief centre in Canada. She described her organization's 12-year legal battle over their policy to only allow female-born women to serve as volunteers.
The case of Nixon v. Vancouver Rape Relief Society was fought all the way to the Supreme Court. The court ultimately ruled in favour of the shelter and deemed that their right to freedom of association trumped other rights.
The case cost the shelter $200,000 to defend, but at stake was the issue of whether or not female-born women have the right to congregate in sex-segregated spaces reserved only for themselves.
The Supreme Court found that they did, even in the case of Nixon, which involved an individual who had undergone sex-reassignment surgery and who had fully transitioned from a man to a woman.
With that standard in mind, we now have Bill C-16, whose legal language protects the extremely vague category of "gender expression," which amounts to a statutory protection of an individual's choice of fashion, makeup and hairstyle. I'm not being flippant. There can be no other definition for "gender expression." Expression is your appearance, your look, your air, your manner and countenance.
By amending the Criminal Code and the Human Rights Act to include the words "gender expression" as protected grounds, as opposed to the word "transgender" as protected grounds, Bill C-16 redefines what it means to be a woman from something biological to something defined by external appearances.
This is a tremendous diminishment. Women have struggled for centuries to unshackle themselves from a value system that apportions a woman's worth based on her physical characteristics and her sexual allure.
What an astonishing setback for women's rights in Canada that we are changing, by statute, a woman's status from something chromosomal to something that is based on how one presents oneself in public.
Because of its loose, vague language, it is guaranteed that it will only be a short matter of time before Bill C-16 triggers litigation that will place a financial and legal burden on women who will need to prove they have a right to women's-only safe spaces and sex-segregated activities.
Be it prison cells or elder care facilities, abuse shelters or other residential situations where a woman may desire a female-born woman roommate, be it an athletic or a spa facility where women wish to be protected from the male gaze, or sports teams where women segregate themselves for the purpose of ensuring fair competition. This was the basis of the testimony our committee heard from Diane Guilbault of the Québec Women's Rights Association.
Like Hilla Kerner and another witness, feminist writer Meghan Murphy, Guilbault referenced the need for a gender-based analysis of the impact this legislation will have on women.
In the words of Ms. Guilbault:
The issue of women's rights is intrinsically linked to gender identity. The fact that there are three to four times as many men as women who claim a gender identity contrary to their birth sex shows that this is a gendered phenomenon. For these reasons, it is critical that a gender-based analysis (GBA) is completed and made public before putting such legislation into effect.
Colleagues, for years our friend and former colleague, the feminist icon, Senator Nancy Ruth, insisted that every piece of legislation passed by government should be subject to a gender-based analysis.
Her call was taken up by the Trudeau government which pledged that no piece of legislation it proposed would ever pass without a full and proper gender-based analysis. Yet here we have a bill that effectively redefines the meaning of "gender" itself, and there is no government GBA for us, as legislators, to analyze or assess. The government has been clear on their position regarding gender-based analysis for legislation.
Prime Minister Trudeau said:
We recognize that public policies affect men and women in different ways, and it is important that government understands these impacts. Liberals are committed to ensuring meaningful gender-based impact analysis in Cabinet decision making. A new Liberal government will also ensure that federal departments are actually conducting the gender-based analysis that has been required of them for the past 20 years.
Very nice words, but let me ask: How many of my colleagues have studied or even seen the government's GBA on Bill C-16? I know the answer. The answer is none. Because the government's GBA is not available to the likes of you or me.
No, the GBA on Bill C-16 is too confidential and too private to share with the public who will be affected by Bill C-16, and it's too classified to share with you, the parliamentarians who are expected to consider gender-based analysis before casting your judgment on any bill.
It is disappointing, to say the least, that this government, elected on a promise of conducting "meaningful gender-based impact analysis," refuses to release that very same meaningful gender-based impact analysis for us to consider and weigh. And why is that? In the case of Bill C-16, a bill on gender, we can only wonder.
However, honourable senators, as much as I fear the potential negative consequences of Bill C-16 have not be taken into account by the Minister of Justice when her department drafted this bill, I recognize that the bill has taken on a symbolic significance far beyond pragmatic concerns.
I recognize the history of violence and prejudice that this bill seeks to redress. And I understand that Parliament seeks to denounce that history with this bill. I will stand in favour of Bill C-16 out of respect for the historical pain and suffering of the transgender community. However, I would like to take this opportunity to call on the Leader of the Government in the Senate and the sponsor of this legislation, Senator Mitchell, to demand that the Minister of Justice make the gender-based analysis of Bill C-16 public and to reassure us that when the rights of gender expression and the rights of women and girls come into conflict in the future, as they will, it will not be women and girls negatively impacted, as they so often are.