Mercedes Allen

Trans people may get protections women don't have in Canada

Filed By Mercedes Allen | December 07, 2010 1:30 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Canada, gender reassignment surgery, GRS, trans health care, transgender health

As Canada's trans rights Bill C-389 comes up for its first hour of discussion today, CA_canadian flag.gifthere is one curious aspect about this process that almost went unnoticed until Dale Smith at Xtra remarked on it on Friday. Bill C-389 proposes to add trans people to both the Canada Human Rights Act (employment, housing and services) and to the protections against hate crimes in the Criminal Code of Canada.

But in a bizarre idiosyncracy of Canadian law, if the categories of gender identity and gender expression are included in the Criminal Code, they will have achieved this landmark before the category of sex. Sexual orientation is already included in Section 318(4).

"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)."

It's unfathomable that in the Canada of December 2010, women haven't been included. And yet, 21 years ago yesterday, Canada experienced one of the most heinous hate crimes against women in western civilization in modern memory when Marc Lepine stormed into a classroom at Ecole Polytechnique, singled out the women and opened fire, murdering 14 students.

Monica Roberts reprises her Ecole Polytechnique - We Remember at TransGriot. She notes that:

To ensure that there was no confusion as to why he felt the need to enter École Polytechnique and massacre 14 women, Marc Lepine left behind a detailed three page letter in which he blamed feminists for being "so opportunistic they neglect to profit from the knowledge accumulated by men through the ages. They always try to misrepresent them every time they can". He considered himself to be "rational" and therefore, he felt his rage against feminists was justified. He went on to state in his suicide note, "why persevere to exist if it is only to please the government. Being rather backward-looking by nature (except for science), the feminists have always enraged me. They want to keep the advantages of women (e.g. cheaper insurance, extended maternity leave preceded by a preventative leave, etc.) while seizing for themselves those of men." Lepine was so angry at the perceived loss of unearned male privilege, due to the advances of feminism, his letter also included a list of nineteen other women that he also wished to see dead...

Bloc Quebecois MP Nicole Demers has proposed a private members bill, C-531, which proposes to add women to Section 318(4) of the Criminal Code of Canada. Whether via C-531 or another means (i.e. it's unlikely now that this bill will come up for three readings before Parliament dissolves), this absolutely should not be forgotten. As rumours of an election grow, we need to press each party to pledge to correct this glaring oversight by proposing inclusion via a government bill, if they take/retain power.

Which isn't to say that Bill C-389 should wait:

"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," [Vancouver lawyer and specialist in queer and feminist issues Barbara] 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."

Tuesday's debate on Bill C-389 should happen at or around 5:30 Eastern and I believe ParlVU will have the webcast. MP Bill Siksay adds:

"The second hour won't be scheduled until after Tuesday, but is likely to happen in late February or early March. There will be a final vote on the bill after the second hour of debate. There is still time to lobby MPs to support... the bill."

C-389 Resources:

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SkepticalCidada | December 7, 2010 2:14 PM

This is neither as surprising nor as ominous as this breathless post suggests.

Adding "sex" to hate crimes laws always raises the same thorny question everywhere: Does it instantly turn every single rape and sexual assault into a hate crime? Other crimes--like physical assault or simple vandalism--become hate crimes only in those instances in which the victim is selected because of a protected trait. The vast majority of those crimes do not become hate crimes because they lack the hate motivation. But the concern is that one could argue for a gender motivation in every rape or sexual assault case, which would effectively collapse the distinction between rape and hate crimes. The sense is that it is problematic to specify a penalty for rape and then always automatically enhance it for hate crimes.

The trick has been to try to figure out if there's a way to define gender-motivated hate crimes to get at the Ecole Polytechnique kind of attack but not just merge rape and hate crimes law.

"Does it instantly turn every single rape and sexual assault into a hate crime?"

Well aren't they?

NOTE: Bill Siksay updates #C-389 -- there are a couple different things that could happen today, and the actual discussion may take place tomorrow.

A correction: Monica was reposting an article from Womanist Musings:

Apologies for the error.

Well, while i'm no fan of hate crimes legislation (for all the reasons routinely outlined by groups like the Sylvia Rivera Law Project) rape IS a hate crime. Rape survivors have been saying this for a very very long time.

YaY for Canada... by the way, this law will also protect trans people who do fit desired gender roles as well. Not just those who don't fit or conform to socially constructed gender roles. Btw there are women who identify within the transgender spectrum so don't worry, women will be included.

Trans people have suffered global institutionalized oppression historically, they deserve and are entitled every right that everyone else is afforded, just for breathing. Its sad that in 2010, anyone can be attacked based on gender identity or expression and the root of that stems from ethnocentrism and prejudice which is really what should be addressed, not making more laws to curb the behavior bc we all know laws without enforcement,monitoring and real consequences are not worth the paper printed on.

I'm going to have to think about this one. Not because I disagree on rape being a hate crime, but because I can see how the navigation of judicial implications complicates the question. But personally, I've never thought that sentencing guidelines for rape and molestation crimes were adequate, though (esp. in Canada).

I will try to update when I can, but if it's awhile, here's the C-389 update:

Conservatives attempted to derail the bill on Tuesday, so it went to a vote today (Wednesday) on whether it can pass the reading stage. It passed this vote 143 to 131, and will go up for Third Reading debate and vote in February or March, now. If it passes that, it's on to the Senate.