2 min

Will Bill C-389 leave sex behind?

Finding a distinction between trans rights and women's rights

Bill C-389 will enshrine trans rights in Canadian law, but some say it will leave women – non-trans women – behind.

“First of all, there’s nothing wrong with the bill,” says Conservative senator Nancy Ruth. “The bill’s fine. But there is an issue for me, in that other women are not included in Section 318(4) of the Criminal Code, and women have tried for decades – at least 20 or 30 years that I can remember – to get themselves into 318(4).”

Section 318 covers hate crimes. “Everyone who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years,” it reads. Subsection four reads that the identifiable groups include “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.”

C-389 would add the terms “gender identity” and “gender expression” to that list. Nancy Ruth, who prefers to be identified by both names, has been calling for “sex” to be included as well.

“Rights should be expanded, but there is a major problem in that you can’t give one group in Canada rights if you don’t give all people within that class the same rights,” Nancy Ruth says. “This is a problem, but I’m not going to kill the bill over it.”

NDP MP Bill Siksay, who authored C-389, says he was aware that “sex” would be left out of Section 318 when he drafted the bill, noting that the issue has been a hot topic for some time.

“It wasn’t my intention to exclude women generally in that clause, but it was my intention to deal specifically with a very marginalized group of women, specifically trans women and all transgendered and transsexual people,” Siksay says. “The private member’s bill was intended to be very specific, so we dealt specifically with the issue of full human rights for transgendered and transsexual people.”

“It is a concern, but my response to that is that my colleague Borys Wrzesnewskyj has a private member’s bill that would include gender in Section 318,” says Liberal justice critic Marlene Jennings.

Bloc MP Nicole Demers’ Bill C-531 would do the same thing.

With his bill way down on the order paper, Wrzesnewskyj says it’s unlikely to make it into law.

“I’ve tried that three times, and every time it’s been knocked down by the Conservative caucus,” Wrzesnewskyj says. Still, he notes, “sex” would almost certainly be read into the law in a Supreme Court challenge.

Nancy Ruth notes that previous Liberal governments also resisted adding “sex” to Section 318(4) when Conservatives tried to get it included.

Vancouver lawyer barbara findlay, who specializes in queer and feminist issues, says including “sex” in Section 318(4) is important but that there are important distinctions between women’s rights and trans rights.

“It is a conceptual confusion to suggest that if people are protected from discrimination on the basis of gender identity or gender expression that somehow gives trans women ‘more rights’ than non-trans women,” findlay says. “It gives all people, whatever their gender identity or gender expression, the right not to be discriminated against on the basis of gender non-conformity.

“Among other things, it protects lesbian women who look ‘too butch,’ and it would protect gay men who are ‘too femme,’” findlay says. “It would also protect trans people who don’t ‘look like’ the gender that they identify with. The addition of protection on the basis of gender identity and gender expression protects all of us who might be targeted for hatred or discrimination on that basis. It does not give any group ‘more rights’ than anyone else.”