Mercedes Allen

Canada's Trans Rights Bill C-389 Passes

Filed By Mercedes Allen | February 10, 2011 12:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: C-389, Canada, rights, trans

Bill C-389, an Act to Amend the Canadian Human Rights Act and Criminal Code (gender identity and gender expression),c389.jpg passed at Third Reading, on a vote of 143 for to 135 against.

Third Reading took place nearly a month sooner than originally scheduled, because Olivia Chow traded her Private Member's Bill spot so the bill could be read earlier. This was due to concerns that a spring election will be called, which would kill all bills still in the legislative process.

After the fold: what they said at debate on Monday, and what happens next (because it's not enacted into law just yet).

Bill Siksay (MP for Burnaby-Douglas), the Member of Parliament who advanced the bill, introduced it once more in Parliament:

At earlier stages of the debate and in committee, the key concerns raised were about the need to define gender identity and gender expression and the question of redundancy.

On the matter of the definition, the Canadian Human Rights Act does not define each of the prohibited grounds of discrimination that it contains. This is intentional. It encourages living definitions, grounds that are defined by common usage, experience, jurisprudence, tribunal decisions and science. In keeping with that feature of the act, there is no definition of gender identity and gender expression in this bill. I hasten to point out that gender identity and gender expression are not new terms or new ideas. They have been in use for many years.

Also, while there have been successful human rights complaints launched by transpeople using the current law's provisions on "sex" and sometimes "disability," we should never forget the fact that successful challenges to discrimination have been made by transfolks using current law, including an explicit reference to gender identity and gender expression, which is still important. It is important for absolute clarity. Transpeople should not have to think their way into protection using other categories originally intended to cover other groups in our society.

It is also important that a group that is marginalized in our society and that suffers significant discrimination and prejudice actually see themselves in the law, and that those who would discriminate against them know, beyond a shadow of a doubt, that their actions are not acceptable.

It is also important that the Canadian Human Rights Commission has an explicit educational mandate on issues related to the experience of transsexual and transgender Canadians.

MP Brent Rathgeber (Edmonton-St. Albert, CPC) restated the Conservatives' position that the terms were undefined and unnecessary:

I respectfully submit to all members of the House that, as a result, we are left with uncertainty and vagueness about what these concepts mean. As all members know, if undefined important terms such as "gender expression" and "gender identity" would create a lack of clarity and a real problem for the bill and for those who will be called upon to interpret the bill...

Our neighbours to the south in the United States at the federal level passed the Matthew Shepard and James Byrd, Jr. hate crimes prevention act and it uses the term "gender identity", which is define, but does not use the separate term "gender expression". In my view, this shows that the bill is deficient by failing to provide definitions of these integral and important terms.

MP Megan Leslie (Halifax, NDP) related several personal stories that had been told to her:

Another constituent of mine wrote: "I am a resident of Halifax and am a transgendered person. While I have spent much of my career advocating for the rights of others (e.g. African Nova Scotians, persons with disabilities, new Canadians, single parents, gay, lesbian and bi) within my community, I have never been able to find the courage to identify that I am transgendered or to advocate for myself. It was only a few years ago that I disclosed to my wife and adult children that I am transgendered. Perhaps the reasons for keeping this a secret have been numerous. For example, not wanting to distract attention from the groups I worked with. Also, there was certainly fear. The fear of discrimination, loss of employment, hurt to my family and friends, etc. There was also the fear of being labelled sick, as I have heard others refer to transgendered people so many times.

MP Marlene Jennings (Notre-Dame-de-Grace-Lachine, Lib.) spoke to what she described as the 8 principal myths being used to oppose the bill, although she was only able to get through 7 before time ran out:

Myth number six is that Bill C-389 is being advanced for a tiny group of sexual activists. Again, this is completely false. Transgendered individuals face an unacceptable amount of discrimination in their everyday lives and are likely to become victims of violence. We have heard it again and again, whether it be from testimonials, which were read by the member sponsoring the bill, or from the letters the member for Halifax has received from transgendered individuals, or from friends or relatives of transgendered individuals expressing the kind of violence that transgendered individuals face in our society today.

Although transgendered individuals constitute a small minority of the Canadian population, all Canadians have an equal right not to be subjected to discrimination. This bill is being advanced in the name of equal rights. It is not because there is one, or ten or a hundred that discrimination is justified. It is not justified. All Canadians, regardless of their sexual orientation, their gender expression or identity have a right to be safe, to work, to equal access to health services, to lodging and to move about in our society without fear of being victims of violence because of their gender expression or identity. If adopted, the bill will go a long way to ensuring that.

(And if you missed it, Hedy Fry's speech from Second Reading in December is still on YouTube).

Before the vote, Xtra columnist Dale Smith tweeted:

Sun Media around the Foyer asking loaded questions about #C389 and "special rights." #cdnpoli #canqueer #trans

Way to go, Sun Media. It seems like every day, the spectre of a FoxNewsNorth draws closer. Don't get me wrong, there are writers with Sun who I do respect. They could get it. They could focus on getting to the facts, instead of giving platforms to fearmongers like Charles McVety, who was dropped by a Christian television network after being reprimanded for distorting and outright lying. Right?

Nope. I guess not.

If Sun is counting on a move toward distortive and wingnut journalism to help with sales, then it's betraying its contempt for mainstream Canadians.

What Happens Now

Bill Siksay is retiring at the end of his term. There is a Facebook-based Thank You Card for the one who did come back.

Bill C-389 now goes to the Senate (h/t to Dale Smith again), where it must go through three readings. Readings in the Senate don't take months-to-years as they do for Private Members Bills in Parliament. However, as far as I know, a Senator still needs to be found who is willing to bring the bill to the floor.

There could be some perils in the Senate. In the past, the Senate has mostly just ratified and tweaked legislation passed by Parliament, but as Harper has packed more conservatives into the Senate (rather than reforming it to create an elected Senate, which he once campaigned on), it has been sometimes used more undemocratically. In one recent such move, he used a lack of attendance of Liberal senators to kill a climate change bill.

It is also still entirely possible that an election call could kill the bill before it is enacted into law. What would happen then is that as a community, we would need to press candidates and parties to pledge to finish what was started, and also to address other glaring omissions such as the absence of sex/gender from the hate crimes provisions from the Criminal Code of Canada.

But that starts tomorrow. For today, we celebrate something historic.

(Crossposted to DentedBlueMercedes)

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Kathy Padilla | February 10, 2011 12:19 PM


Great news.

It's Canada. I don't live there. I am happy for the folks this applies to, though! :)

I used to think, like a lot of liberals tend to, that Canada is a paradise, but I have seen enough posts on T rights there to realize that isn't true, which sucks, 'cause now I don't have anywhere to move as the US is taken over by the right wing nutjobs.

oh, and the ppl hijacking that thread are 'post-transsexual', are just women, so they don't care about, and in most cases are opposed to, trans protections.

Kathy Padilla | February 10, 2011 1:35 PM

Wow - pretty amazed there's no other comments. I guess passing a nationwide civil rights bill for transgender & transsexual people in the House is just not as important as threadjacking a post asking ......what concrete things could be done to improve transgender & transsexual peoples lives.

I really need to get my priorities in order.

Wait, the senate, which used to be more functional and more democratic (though not perfect), is swinging to the right and using procedural power to stifle popular reforms?

We have lots more in common than we thought!


It should probably be pointed out if I forgot that in Canada, the Senate is not elected. Senators are appointed by the Prime Minister. Harper's Conservative government is a merger of the old Progressive Conservatives and Reform / Alliance party. Harper comes from the latter, and Reform had long championed that the Senate should be elected. Since taking office, he's done quite the opposite, trying to stack it with social conservatives.

In the debates on a number of bills yesterday, it was noticed that a number of the Conservatives were referring to "filibusters" to imply that opposition parties were constipating (I'm sure there's a better word, but what the hell) the legislative process by not playing along with everything they wanted. But we don't have filibusters here, don't need supermajorities... and are probably better off for it, based on what I've been seeing in both processes.

What's your assessment of the likelihood of this making its way through the senate?

I have to admit, it's an uphill climb. My partner counts 105 Senators, with 30 appointed by and beholden to Stephen Harper. And the media hasn't really covered much about trans issues during this process, so some of the "bathroom" rhetoric has been all that was given press, and has gone unchecked (we're working on that right now, in fact).

There is also some likelihood of an election call coming soon. So there are a number of ways that this can fail.

That said, no one ever expected it could have come this far. At this point, even if it fails, there is enough momentum to be able to push forward.

Stonewall Girl Stonewall Girl | February 10, 2011 11:59 PM

I think congrats are in order for a very positive step forward.

As far as the complaint that there was no definition in American laws,

for Hate Crimes, "the term
‘gender identity’ means actual or perceived gender
related characteristics."

In the latest version of ENDA that should have passed, "GENDER IDENTITY- The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." which is essentially the same, I am told, as "gender Identity or expression".

They don't know what it means or don't want to know?

I was sure we were doomed to defeat once I got a form letter response from the Justice Minister explaining that he couldn't support the bill in its current form, and that he felt it was unnecessary. What he didn’t mention is that the protection he feels already exists is only as good as the common sense, understanding, and existing prejudices of the person interpreting it. In other words, unless Bill C-389 passes to clarify the issue, that theoretical protection doesn’t exist.

2 important additions:

1) Helen Kennedy at Egale reports:

The Bill is up for 2nd reading in the Senate next week, Tuesday, Feb. 15th.

I assume that this means first reading is a formality and will be done this week or early next? (not sure on this)

2) Does anyone have video or still footage of the third reading vote? I am looking specifically for an image of PM Harper standing while the "Nos" are being talleyed.

I think an image is in order, considering the "It Gets Better" video. (If you have the still or video, I can do the rest)

"Harper: It Gets Better -- Unless You Want To Be Treated Like The Rest Of Us."

And a correction to the update: although it is scheduled for second reading in the Senate on the 15th, that is not a guarantee that it will happen on that day. That is the earliest it could take place, and will depend on how soon a Senator decides to sponsor and forward the bill.