The trans community has made important legal, political and social advances in the past decade, perhaps best exemplified by the passage last year through the House of Commons of Bill C-389, which added gender identity and gender expression to Canada’s Human Rights Act and to the hate crime provisions of the Criminal Code -- even thought the bill eventually died when the election was called before it was debated in the Senate.
On Feb 21, Ontario NDP MPP Cheri DiNovo introduced a private member’s bill to add "gender identity" to the Ontario Human Rights Code. She’s introduced the bill three times before, only for the bill to die on the order paper for lack of support by the governing Liberals. She’s hopeful it’ll pass under the current minority government.
"To be a trans person means you are at high risk in society," she says. "We want to close any possible loophole. We want to keep our children safe."
But it’s unclear if the bill will actually help trans people. On the contrary, it seems the ongoing debate is doing more harm than good.
While Human Rights Commissioner Barbara Hall has been supportive of the measure, it’s also true that the Ontario Human Rights Commission already considers trans people to be protected under the existing human rights legislation on the ground of “sex.” The OHRC even has a page on its website that goes into extensive detail on the duties of employers and others to accommodate trans people.
To be clear: it is already illegal to discriminate against trans people in Ontario. In fact, no one has yet been able to point to a case where a trans person was turned away or received a negative judgment from the OHRC when they made a case of trans discrimination.
And even though Bill C-389 died last year, a spokesperson for the Canadian Human Rights Commission says that trans people can file federal complaints under the sex or sexual orientation sections of the Act. He also told me there is a plan to overhaul the commission’s website to correct erroneous and outdated information that suggests otherwise.
Even if the OHRC weren’t already reading “gender identity” into the category of sex, it could be argued that the necessary protections should already be there, because of the equal protection clause (section 15) of the Charter of Rights and Freedoms.
Here, it’s important to recognize the difference between the Canadian and American versions of civil rights. In the US, you have the right to discriminate against anyone unless the law specifically says you can’t. That’s why activists have been pushing a federal non-discrimination act for four decades, and to this day, Ellen could be fired from her job just for being a lesbian in 29 states.
In Canada, the Charter’s equal protection clause says we can't discriminate against anyone. The listed classes of discrimination in the Charter are given only as examples – “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.”
This is why in the Egan case in 1995, the Supreme Court was able to “read in” sexual orientation as a prohibited ground for discrimination even though it isn’t enumerated in the Charter. In the 1998 Vriend case, the Supreme Court read “sexual orientation” into the Alberta Human Rights, Citizenship and Multiculturalism Act, despite the fact that the legislature had specifically excluded it – excluding gay and lesbian people from human rights legislation was found to be discriminatory and hence unconstitutional.
So those rights should already exist for trans Canadians, even in jurisdictions where they’re not specifically enshrined in law or regulations.
Engaging in this debate about whether or not we should include trans people explicitly in the OHRC – even the language, calling it a “trans rights” bill that would “protect” trans people from discrimination – confuses the issue by making it sound like trans people don’t have those rights already.
It’s actually incredibly disempowering. Trans people don’t need the legislature to assert rights they already have, and insisting they do implies they don’t have rights otherwise. The discourse could have the impact of suppressing rights claims from trans people who erroneously believe they have no civil rights until the legislation passes.
Moreover, using the legislature to achieve these rights may actually expose trans people to greater long-term harm. If we concede the legislature has the power to establish these rights, then it would also have the power to take them away. A Hudak majority in the next election cycle could do more harm armed with the belief that rights spring from Queen’s Park rather than the Charter. Have we already forgotten that Hudak tried to turn trans people into the horrible bogeymen coming after your children in the dying days of the 2011 election?
And what of trans people in other jurisdictions? Are they best served by fighting individual battles in 11 legislatures, or is a nationwide assertion of already-held Charter rights the best way forward? Wouldn’t it be easier to assert that “gender identity” is covered by the various human rights codes’ inclusion of “gender” or “sex”?
Advocates for Toby’s Act rightly claim that trans people face incredible amounts of discrimination. But amending the Code won’t solve this, in the same way that including “race” has not ended racism. Conversely, the absence of a specific reference to sexual orientation in the Charter or Alberta’s HRCMA did not stop the general advance of gay and lesbian people’s social status since the 1990s.
So is the bill the best remedy for the discrimination trans people face? I would say no. Government can and should play a role here, by taking even more proactive steps to educate people about gender identity and their duties to accommodate trans people – reinforcing the rights that already exist. Government can also improve the lives of trans people by establishing better medical facilities and clinics for trans people throughout the province.
It’s true that passing Toby’s Act may achieve a symbolic victory for trans people. And while I don’t speak for trans people, I’d bet it’s more important to achieve substantive victories.
Follow Xtra reporter Rob Salerno on Twitter @RobSalerno.