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Senate committee rejects motion to narrow trans bill’s scope

Bill C-16 on track for final vote after long debate on pronouns and feminism, but summer break approaching

Trans advocate Joshua M Ferguson poses at a rally on Parliament Hill in support of Bill C-16 on May 11, 2017.

Credit: Dylan C Robertson/Daily Xtra

A bill aimed at enshrining protection for transgender people into Canada’s human-rights code is headed back to the Senate for what should be a final vote, after eight hours of testimony that included heated arguments, apocalyptic predictions and racially charged language.

On May 17, 2016, the federal Liberals introduced Bill C-16, which would encode both gender identity and expression into Canada’s human-rights and hate-crime laws. The bill follows similar legislation either tabled or passed in every province and territory.

A year later, senators on the legal affairs committee have sent the bill back to the red chamber in its original form in a 12-3 vote. After hearing from 24 witnesses, the committee rejected an amendment that would have narrowed the bill’s scope, as well as a formal observation expressing concern about forced speech.

The Senate resumes sitting May 30, and will have five weeks to hold a third reading of Bill C-16, alongside a handful of other bills. Senators could still propose amendments to the bill, which the federal Liberals could reject and send back to the red chamber. The Liberals might also prorogue Parliament this fall, which would kill the bill entirely if it hasn’t yet been made law.

The bill’s sponsor, Liberal Senator Grant Mitchell, told the Hill Times he’ll fight to get the bill passed before the June 30 summer break, even threatening to use time allocation — a parliamentary motion that curtails debate and forces a vote, but often prompts opponents to delay other bills in retaliation.

“It’s a hill I’m prepared to die on. This has to be passed before the summer break,” Mitchell said.

Here’s a rundown of the issues senators deliberated over five contentious sittings:

Forced pronouns?

Most of the committee hearings centered on whether people could face fines or jail time for using the wrong pronouns. Bill C-16 would protect trans people from discrimination in federal jurisdictions. The human rights tribunal that hears such discrimination complaints generally negotiates settlements and fines federal agencies found guilty. In rare cases, people who don’t comply with tribunal rulings can be jailed.

The Senate first heard from Justice Minister Jody Wilson-Raybould, who said “there is nothing within Bill C-16 that would compel somebody to have to call somebody by the pronoun ‘he’ or ‘she’ or otherwise.”

But she also suggests that people could be punished for intentionally using the wrong pronouns: “Harassment involves speech or conduct that is persistent and serious enough to create a hostile or poisoned environment,” she said.

Her comments were echoed by Brenda Cossman, a University of Toronto law professor specializing in sexual diversity studies, who said tribunals could sanction people who intentionally misgender someone.

She pointed to the Ontario Human Rights Commission’s policy, which already includes gender identity and expression. “It requires that you don’t use the wrong name, and if you don’t like the right one, then just use a person’s name,” Cossman said.

Opponents maintain that Bill C-16 is vague and can be interpreted as forcing people to use gender-neutral pronouns.

And though the justice minister promised to provide her department’s analysis of how the bill doesn’t impede Charter rights, senators complained they hadn’t received it by the time their hearings ended two weeks later. 

‘An ideological war’

University of Toronto psychology professor Jordan Peterson told the Senate he rejected the “unbelievably dangerous” bill because it would lead to jailing people for rejecting “government-mandated speech.” 

Peterson painted a dystopian picture of radical groups using dubious anti-bias training to erase both the concept of gender and the acknowledgement that most people identify with the gender and sex they’re assigned at birth.

“There’s an ideological war that’s tearing campuses apart,” he claimed. “The ideologues who are pushing this movement are using unsuspecting and sometimes complicit members of the so-called transgender community to push their ideological vanguard forward.”

While stressing he is “not a discriminatory person,” Peterson said it would be “unbelievably dangerous” to implement into law the idea “that human identity is nothing but a consequence of socialization.”

At one point, Peterson held up an illustration marked Gender Unicorn, which he called “particularly reprehensible” for targeting children.

Gad Saad, a Concordia University marketing professor who uses evolutionary science to explain decision-making, claimed that campus activists alleging “systematic violence” for not using the proper pronouns have created a “stifling environment” in universities.

Gad Saad (right), a Concordia University marketing professor focusing on evolutionary behaviour, speaks with a trans advocate in an East Block committee room on Parliament Hill after testifying on Bill C-16 on May 10, 2017.
Dylan C Robertson/Daily Xtra

Saad claimed Bill C-16 would encourage activists to expand “the trajectory of victimhood” in anti-discrimination laws to tackle fatphobia and protect “transracialism” (where people self-identify as another race, like Rachel Dolezal).

“The slippery slope of totalitarian lunacy awaits us,” he said. 

Theryn Meyer, a trans YouTube blogger who has contributed to the far-right site Breitbart, accused the Liberals of “playing the role of social justice activists with their political power.” She claimed the legislation would limit speech and make employers see trans people as a legal liability.

“The bill will also send the impression to Canadians that trans people are too weak to defend and make the case for their identities in a free society, and that the only way for us to exist amongst others is to restrict by draconian law the freedoms of others,” she said. “Bill C-16 is a sure way to engender resentment and intolerance and true transphobia.”

These assertions led Senator Don Plett to suggest the committee add an observation to the bill — a note that would inform judges when issuing rulings — that some witnesses “raised serious concerns . . . with respect to the compelling of gender-neutral speech from persons who may or may not subscribe to this particular theory of gender.” Plett’s motion failed 10-5.

In 2013, Plett controversially moved to amend a similar bill to exempt trans protection from jails, shelters and bathrooms.

Feminists decry ‘a trend’

A member of Vancouver Rape Relief told the Senate why her group’s shelter still doesn’t house trans women. Trans volunteer Kimberly Nixon filed a complaint against Rape Relief in 1995 after the organization excluded her. While the BC Human Rights Tribunal sided with Nixon, two BC courts later ruled against her.

Hilla Kerner said the Nixon case caused a “witch hunt” against Rape Relief, and explained the incident while referring to Nixon as “he.”

“I don’t know what it means to ‘feel like a woman’ — I know what it is to be a girl and to be a woman,” she said. “We know the embarrassment of having our clothes stained with blood from our period, the anxiety of facing an unwanted pregnancy and the fear of being raped, and we know the comfort of grouping with other women.”

Her comments were echoed by Meghan Murphy, founder of the website Feminist Current, who said Bill C-16 would “reinforce stereotypes and oppressive ideas” by “treating gender as though it is either internal or a personal choice,” instead of a social construction.

“The rights of women and girls are being pushed aside to accommodate a trend,” warned Murphy.

But it was the president of the Québec Women’s Rights Association, Michèle Sirois, who left some senators speechless, by raising the spectre of men claiming to be women to compete in sports competitions, or predators accessing private spaces.

Sirois specifically brought up the case of ex-Colonel Russell Williams, who photographed himself in stolen women’s underwear before killing two women and raping others.  “Why would he not decide that he’d be better off in a women’s prison?” Sirois asked. “Bill C-16 will result in the elimination or weakening of women’s rights.”

Senator Betty Unger cited these concerns in tabling an amendment to the bill, which would have changed it to “gender identity and expression,” instead of “or,” arguing it would ensure non-trans people don’t take advantage of the legislation.

The amendment failed in a 5-10 vote, after some senators argued that provincial laws use “or,” and claimed it would make it harder for trans people to access justice.

The bathroom argument

As with similar bills in the past, social-conservative groups argued Bill C-16 would lead to gender-neutral washrooms that could expose women to a higher risk of predators.

Paul Dirks, a Baptist pastor who started the WOMAN Means Something Campaign, presented his research on 255 incidents of alleged “male violence against women in public spaces,” including voyeurism in changerooms and 29 cases “where males have expressed a female gender and perpetrated violence in women’s safe spaces.”

Senator André Pratte challenged Dirks on not having data on assaults in sex-segregated spaces. “There always have been predators, and I would submit that your data is not scientifically reliable,.” he said.

Devon MacFarlane, the director of Rainbow Health Ontario, told the Senate that trans people are far more likely to be the people harassed in bathrooms.

Two trans activists — Devon MacFarlane (left), director of Rainbow Health Ontario and diversity consultant Marni Panas (right) — pose in an East Block committee room on Parliament Hill after testifying on Bill C-16 on May 11, 2017.
Dylan C Robertson/Daily Xtra

Two-thirds of trans people avoid public spaces like bathrooms for fear of harassment or violence. Most of the trans people here in the room today have likely had bad experiences in bathrooms and keep mental maps of where to pee in peace,” MacFarlane said.

“With this comes significant discomfort, if not outright pain, from holding it when we can’t find a safe washroom,” he said. “This has health consequences. In a US study, 54 percent of trans people developed problems like dehydration, urinary tract infections or kidney infections; six per cent had to seek medical care.”

Greta Bauer, a professor of epidemiology and biostatistics at Western University, echoed similar points, noting that “the majority of the trans people who had experienced transphobic assault were avoiding a large number of public spaces.”

Bauer led the 2009-2010 Trans PULSE survey of 433 trans Ontarians, which documented lower incomes and frequent discrimination. It also found 70 percent of respondents struggled to get identity documents that matched their gender. Bauer argued this leads to trans people avoiding driving or going to bars because they fear unsympathetic police or bouncers.

‘The real disconnect’

Witnesses also spoke in favour of the bill, including legal experts and trans people.

Marni Panas, a trans woman and diversity consultant from Edmonton, told the committee about living “in a society that would often we rather not exist at all.” She recounted her divorce and family isolation.

“I am a woman, I am a daddy, I am transgender. I was assigned male at birth but I have always been a woman,” she said. “I’m not pretending anything that I am. I’m finally living who I am, and that is the real disconnect.”

Melissa Potvin spoke about struggling to understand her child, Warner Schaettgen, who at age two declared she felt like a girl. 

“We read everything we could to try and understand and meanwhile we allowed Warner to wear dresses and female clothing in private. The fear of social rejection and inevitable bullying kept us hiding this secret for six years from the closest family and friends,” said Potvin, who identifies as a Catholic conservative.

Warner Schaettgen, 9, speaks at a rally on Parliament Hill in support of Bill C-16 on May 11, 2017.
Dylan C Robertson/Daily Xtra

“Through medical guidance, reading research, and with love and faith we were able to see that supporting Warner to be herself gave her the best chance of growing up healthy and happy,” Potvin recounted. “This uncomfortable and sad little boy became this beautiful, happy, outgoing girl almost overnight.”

“If I could change this, I would. The big guy upstairs has reasons for everything and we are all equally deserving of love and respect.”

Senator André Pratte argued that using chosen pronouns was “a matter of pure respect,” and used an analogy with racial slurs:

“Some people may think that Blacks should not be referred to by their name, that they should all be addressed: ‘hey, nigger.’ But you don’t address them as, ‘hey, nigger;’ you call them by their names because that is what you do,” said Pratte, who later apologized for using the word.

During the four days of testimony, senators raised their voices and rolled their eyes, while some trans people left the room.

Senator Murray Sinclair proposed affixing a note to the bill, that the witness’ views “while strongly and legitimately held, were not well-founded.” That left his colleague Plett shaking in his chair, loudly responding that “to suggest that these witnesses were not credible is mind-boggling to me.”

Outside the Senate, roughly 125 people gathered on Parliament Hill for a rally on the International Day Against Homophobia, Transphobia and Biphobia, moments before Peterson’s testimony.

“Trans people aren’t just these people that can be talked about without us being present,” Fae Johnstone, a non-binary femme who organized the rally, told Xtra, saying many witnesses were “speaking from a place of bigotry.”

Trans activist Joshua M Ferguson told the rally Bill C-16 was long overdue.

“We’ve been waiting with our lives hanging in the balance for a decade now,” they said. “This is more than just pronouns; this is about our very lives that are at risk everyday we walk into public.”