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Hon. Irwin Cotler: Debate on Bill C-279 – An act to amend the Canadian Human Rights Act and the Criminal Code on the matter of gender identity and gender expression

Posted on April 26, 2012

Hon. Irwin Cotler (Mount Royal, Lib.):
April 5, 2012

Mr. Speaker, I rise today to speak to Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code on the matter of gender identity and gender expression.

 

As my colleagues have noted, Bill C-279 would amend the Canadian Human Rights Act to add both gender identity and gender expression as prohibited grounds of discrimination. In addition, the bill would also amend the Criminal Code in the matter of its anti-hate provisions to include gender identity and gender expression in the definition of what constitutes an identifiable group, as well as adding gender identity and gender expression to the Criminal Code’s list of aggravating factors that affect sentencing.

 

Accordingly, Bill C-279 constitutes an important effort to provide human rights protections to a group that remains the victim of significant discrimination in our society. I would be remiss if I did not note the hard work in previous Parliaments of the former member for Burnaby—Douglas and the current member for Vancouver Centre, both of whom have introduced similar versions of this legislation in previous Parliaments, and the member for Esquimalt—Juan de Fuca today for his legislative initiative and eloquent and comprehensive presentation of this issue on matters of fact and law.

 

The Ontario Human Rights Commission has noted:

     There are, arguably, few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Trans-phobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.

 

The statistics on trans-phobia, which my colleague from Esquimalt—Juan de Fuca pointed out in his remarks today, speak for themselves. Indeed, 95% of transgendered students feel unsafe at school and 9 out of 10 have been verbally harassed due to their gender expression, according to Egale Canada.

 

Further, statistics from the United States reveal the significant incidence of de facto discrimination experienced by transgendered individuals. A recent national survey found that transgendered respondents experienced unemployment at twice the rate of the general population and were significantly more likely to be homeless and low-income earners. In particular, and this is shocking, 97% of transgender respondents in a recent survey reported experiencing harassment or mistreatment at work on the basis of gender identity or expression.

 

By adopting the amendments that have been proposed in Bill C-279, Parliament can send a strong message of support to transgendered Canadians, affirming their identity and acknowledging their struggles. Indeed, this legislation, again as my colleague from Esquimalt—Juan de Fuca pointed out, ensures that they will enjoy the legal protections accorded to other targeted groups. I enjoyed his quote from Oscar Wilde in this regard.

 

It is most appropriate that this debate is taking place on the eve of the 30th anniversary of the Canadian Charter of Rights and Freedoms, the centrepiece of our Constitution, that has promoted and protected rights, particularly those of the disadvantaged and discriminated against. I note with regret that, thus far, the 30th anniversary of our charter has gone without notice from the government. It is clear that the charter has had a transformative impact not only on our laws but also on our lives, not only on how we litigate but how we live. In particular, the charter enshrines equality rights such as we see in section 15. It is in this spirit of equality that I join in the support for Bill C-279.

 

A crucial equality rights issue raised in Bill C-279 is the protection of transgendered individuals against hate speech. Indeed, the promotion of hatred and contempt against an identifiable group results in prejudicial harm to the individual and group targeted by that hate speech. This harm-based rationale, as the Supreme Court characterized the Keegstra, Smith and Andrews and Taylor cases, in which I intervened as counsel on behalf of the intervenant amicus curiae, supports the sanction of hate propaganda as protective of equality. As the court put it, the concerns resulting from racism and hate mongering are not simply the product of its offensiveness, but the very real harm that it causes. Thus, by affording protections to transgendered Canadians under section 319 of our Criminal Code, this House would promote their equality rights under the charter.

 

Fears that the inclusion of gender identity in Canada’s hate speech laws may spark vexatious litigation, thereby creating a chill on free expression, are, simply put, without any foundation.

(1405)

 

The Criminal Code has a built-in filtering mechanism that requires the Attorney General’s consent to prosecutions for the wilful promotion of hatred under subsection 319(2). Moreover, prosecution for criminal incitement to hate under subsection 319(1) is subject to a high threshold whereby the incitement must be “likely to lead to a breach of the peace”.

 

Bill C-279′s proposed amendment to subparagraph 718.2(a)(i) also constitutes a worthy effort to promote the equality rights of the transgendered. The amendment would mandate judges to consider in sentencing whether a hate crime was carried out on the basis of gender identity or gender expression.

 

Given what we know about the discrimination that transgendered individuals face, the failure to recognize them in section 718 would send the courts a problematic message that an attack targeting some vulnerable groups, such as ethnic and religious minorities, is more worthy of the court’s special consideration in sentencing than an attack targeting other vulnerable groups, namely, transgendered people.

 

The proposed amendment to the Canadian Human Rights Act is equally worthy of adoption. To quote Justice La Forest of the Supreme Court of Canada, gender equality and gender identity must be included as a protected ground in the Canadian Human Rights Act because “to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issue to remain invisible.” This is a clear and compelling consideration with respect to the inclusion of this ground.

 

Some members of the House have argued that Bill C-279 is unnecessary because transgendered people are already protected under the existing categories of sex and disability. With respect, this position is misinformed.

 

First, gender identity and gender expression do not refer to biological sex or sexual orientation. Rather, the terms refer to an inner feeling of being male, female, both or neither. Second, gender identity and gender expression are not a disability. Rather, they are a sense of self and a source of identity. To confound gender identity and gender expression with sex and disability is to ignore the unique experiences of discrimination and disadvantage that are faced by transgendered Canadians.

 

Finally, to borrow again the language of Justice La Forest of the Supreme Court of Canada, a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people “invisible”. By amending the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds, Parliament would enable the Canadian Human Rights Commission to keep statistical account of incidents of discrimination against transgendered individuals. The ability to compile and analyze data on discrimination against transgendered persons would be crucial in confronting the scourge of discrimination that they continue to face in our society and might also guide educational efforts in the broader community.

 

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

 

However, the Canadian Human Rights Act will only achieve this remedial purpose if it grants recognition and protection to the most vulnerable groups in Canadian society. I am proud that in 1996, guided by these principles, the Liberal Party amended the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination. I am delighted that members of the House continue to carry on the fight against discrimination on this, as we mark the 30th anniversary of our Charter of Rights and Freedoms, by seeking to add to the prohibited grounds both gender identity and gender expression and provide remedial protection to this most vulnerable and disadvantaged group.

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