Thursday • 2012.03.08
C-279—An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression)
Summary: Bill C-279 seeks to add protections to the Canadian Human Rights Act for “Gender Identity” and “Gender Expression,” and into the Criminal Code to prosecute crimes motivated by transphobia as hate crimes.
Decision: Christin Milloy would vote YES on C-279. (41st Parliament, 1st Session)
Some fundamental Libertarians take a steadfast position against Human Rights legislation of all kinds, and against the concept of hate crime legislation in particular. However, the rightness or wrongness of such laws, from a Libertarian standpoint, is not the question which is put to us as we consider Bill C-279.
Rather, what is being asked is whether the laws, as they exist today, are incomplete to serve in their intent without the inclusion of “gender identity” and “gender expression” as protected grounds.
To reject C-279 is to declare the laws are preferable as they are, whereas to accept C-279 is to take the stance that the laws would be better if they were amended to include trans, and otherwise gender-variant people as a protected group.
It’s important to understand how human rights work in Canada. Section 15 of the Canadian Charter of Rights and Freedoms defines the nature of “Equality before and under law and equal protection and benefit of law” (emphasis added):
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Note that the guarantee of equality is open-ended. Certain disadvantaged groups which were recognized specifically at the time of the Charter’s drafting in 1982 are identified, however the protections are in no way limited only by those grounds given as examples; the idea here is that all Canadians are equally entitled to protection of their rights, without discrimination.
In other words, per the Charter, it is never okay to discriminate against an identifiable group, even if that group is identified based on a ground that is not (yet) explicitly protected by law.
In recognition of the above, the Canadian Human Rights Act has been amended before. For instance, it did not always explicitly afford protections from discrimination based on the ground of “sexual orientation.”
In 1992, the Ontario Court of Appeal found in Haig v. Canada that the omission of “sexual orientation” as a prohibited ground of discrimination under the Canadian Human Rights Act violated section 15 of the Charter. The Court ordered that sexual orientation be “read in” to the Act. So, even before “sexual orientation” was added explicitly to the Act (in 1996), the courts had already recognized that gay and lesbian people were an “analogous” disadvantaged group, deserving of the same protections already afforded based on race, religion, etc.
I have often advocated for the trans community. It’s no secret that I myself am a trans-identified person. With the lived experience I have, coupled with events I have witnessed in my community, and with many stories I have seen unfold all across this country, there is no doubt in my mind that trans-identified and otherwise gender-variant persons form an extremely disadvantaged group in Canadian society, and are regularly subject to debilitating discrimination due to their status.
In recognition of this, the Canadian Human Rights Commission already accepts discrimination complaints based on the ground of “gender identity,” even though it is not (yet) included in the legislation explicitly. For more information on this, see my human rights case against SIN registration.
Case law indicates that due to the equal protection clause of the Charter, the Human Rights Act must be “read” as though any disadvantaged group identifiable by a specific ground is already protected. Interestingly, it is for this reason that Conservative MPs have argued C-279 is not necessary. In a form letter sent in reply to concerned constituents enquiring about C-279, Conservative MP Mike Wallace (Burlington, Ontario) says (emphasis added):
This government is proud of the fact that Canada is recognized internationally as a country that is deeply committed to the principles of respect of diversity and equality; principles that are enshrined in our constitution and laws.
Please be assured that the Government of Canada remains committed to the respect for and equality of all Canadians, including the gay, lesbian, bisexual, and transgendered [sic] community. Therefore, I do not feel this Bill is necessary and I will be opposing it.
Unfortunately, it is not quite as clear as Mr. Wallace would have us believe that trans people really are already protected.
As yet, the trans community does not have a landmark case analogous to Haig v. Canada which would clarify protections under the law. Meanwhile, even our own federal government is guilty of continued discriminatory practices; practices which they easily defend, since we have no explicit protection. For example, trans people are still barred from access to proper ID in Canada. Last year, new airport security regulations were imposed which technically bar trans people from flying on air-planes, without any consideration being given to how those regs might affect trans or otherwise gender-variant persons.
The fact is, trans people have limited means to challenge these injustices without explicit legislative protections. As I see it, this bill serves three important purposes.
1) To enshrine into law explicitly, leaving no room for doubt or legal challenge, the fact that the protections which already exist for all Canadians do indeed extend to include protection against discrimination based on one’s gender identity (or expression) and,
2) To update the existing “hate crime” portion of the Criminal Code, in acknowledgement of the fact that crimes motivated by transphobia satisfy the same definition of biased motivation as a crime motivated by prejudice against a group based on any of the previously existing prohibited grounds, and,
3) To send a clear message throughout Canada, and to the rest of the world, that trans people are not inferior, and that the rights of trans people can no longer be ignored.
Regardless what the fundamental Libertarian positions may be on either “hate crimes” or on “human rights” legislation in general, it is clear to me as a responsible Canadian politician that repealing all such protections is not an option in Canada. Nor would there be anything to gain, in such a regard, by voting “no” on C-279.
Furthermore, I cannot in good conscience vote against a bill that promotes equality by bringing protections for trans people in line with those which already exist for all other Canadians. And so, in the spirit of equal liberty for all, I would of course vote whole-heartedly “Yes” on C-279.