Christin Milloy:

Rise up and seize equality

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)

Explanation:

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.

Further Reading:

9 Comments

  1. Sheelagh
    Friday, 2012.03.09 at 20:22

    In the riding I live in, both of the provincial and federal representatives are members of the Conservative party. Can you suggest anything I can do to help C279 get passed? My feeling is that it’s a waste of time to try to get the parliamentary sock puppets to do anything. I like to think there is something that can be done. Any suggestions?

    • Christin Scarlett Milloy
      Sunday, 2012.03.11 at 23:03

      I have been putting my mind to this very issue… In fact my MP is Conservative too. I’m going to put together some recommended action and post an article about it in plenty of time for the next debate.

      Christin

  2. nick moat
    Tuesday, 2012.03.27 at 14:33

    I’m afraid I find it bizarre that the Conservative Party position on this issue is more favourable to liberty than Christin’s! The objective of anyone wishing to enhance liberty must be to repeal the Human Rights Act. No further discussion needed.Christin on the other hand states that “repealing– (hate crime and human rights legislation) — is not an option”. But then the job of a Libertarian is surely to make it an option. Libertarian members should use their role to create conditions under which substantive change can happen. There are famous precedents for this particularly in the history of the 19th century British parliament.Whatever the particular issue might be – in this case injustice against the transgendered – is not relevant. Under a libertarian administration, the universal rules of just conduct should be restored to the judiciary, under a revised constitution, so that liberty can be returned to everyone..

    • Christin Scarlett Milloy
      Saturday, 2012.03.31 at 16:24

      Hi Nick,

      If you actually read the bill, you will see that it does not offer any chance to repeal the CHRA. When I say repealing the CHRA “is not an option,” I am speaking in the limited context of whether it is best for liberty to vote “yea” or “nay” on 279.

      If I am elected, I would have the opportunity to introduce my own Private Member’s bills to accomplish Libertarian goals more directly.

      I will point out, however, that at the federal level there are a lot of bigger fish to fry first before we start attacking the Human Rights Act. In my opinion, our bloated government allows companies and groups to take advantage of people and the Human Rights Act is acting as a stopgap measure to try to reduce exploitation. I think we need to fix and downsize the government first, dramatically, before we’re living in a world where it becomes helpful to repeal the CHRA.

      Make no mistake, an eventual repeal is definitely somewhere down the road on the path to complete Liberty, but repealing the CHRA is not something I would focus on doing during my first session in Parliament. There is simply too much else to do that is a much higher priority.

      Christin

  3. Joanna Phipps
    Thursday, 2012.04.26 at 15:53

    As a lesbian I am protected in every province but as a transwoman I have little or no protection. The BC health regulattions are draconian, the lack of access to appropriate federal documentation is discriminatory at best and draconian at worst.

    Come on Canada, get your acts in gear

  4. Joanna Phipps
    Friday, 2012.04.27 at 13:58

    Speaking of frying bigger fish; for those of us who are trans and are immigrants to Canada we are kept in documentation hell by CIC who insists on surgery BEFORE any changes can be made to the Citizenship Certificate and to Immigration records. I have been a Canadian Citizen since 1969 but the government will NOT allow the X (unspecified) gender marker on the passport (source call to passport Canada 4/27/2012). The best I can get is passport with the right name and wrong marker. The same hell exists with my citizenship, I can get the name changed but have to keep the wrong marker because I CANNOT afford the surgery.

    • zoey
      Monday, 2016.01.04 at 00:26

      Wow i cannot believe you just said All trans people are immagrants …I am an Albertan Born Canadian an Just had my member of parliment sign off on haveing the marker changed on my Birth cirtificate …its free for anyone born in canada I currently live In Ontario and All my Id has been changed from name to marker I vote yes on this bill as the sole and only trouble Ive had is 2 Pubs in 10 years have barred me for useing the bathroom ….trans people Need this passed as its a vital step

  5. zoey
    Monday, 2016.01.04 at 00:28

    Plus I flew west jet from Vancover international to Pearson International in 2008 without so much as a batted eye to re connect with my Girlfriend Located in CFB Trenton where I lived comfortably for nearly a decade before moveing to a larger center

  6. zoey
    Monday, 2016.01.04 at 00:32

    BTW.

    I truely love the Starfleet style of this blog …They dont stand for any discrimination of anykind in the prime directive a status of liveing All humanity should strive for …RIP Gene Rodenberry ..a True visionary
    And man that after being a Las Vegas Police officer still maintained his hope for us

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Christin Milloy