"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Friday, April 29, 2011

Recent News from Canada

I know nothing about transgender law & politics in Canada (making this post tediously difficult to put together, and, as with all posts, if anyone sees any mistakes, please kindly let me know), but three recent news stories that kept turning up on Google news search results made me curious to know more: (1) A transgender anti-discrimination bill before parliament; (2) a transgender woman from Ireland who sought to claim refugee status in Canada; and (3) a teacher fired from a Catholic school in Alberta for being transgender.

The Federal Government

Canada's Human Rights Law explicitly protects sexual orientation, but not gender identity, from public accommodations discrimination, housing discrimination, and employment discrimination.  Bill C389 sought to add "gender identity" and "gender expression" (right after sexual orientation) to the list of protected categories.  It also sought to make criminal offenses motivated by anti-transgender bias into hate crimes.

The bill was introduced by Bill Siksay, a member of the New Democratic Party from the Burnaby-Douglas riding, in British Columbia.  In his address in favor of the bill, I found this remarkably empathetic insight regarding the psychology of closeted or pre-transition transgender people:

"Transsexual individuals describe their experience in this way. Before transitioning it is like never being able to go home, even while knowing exactly where home is. For some it is the clothes and social gender role. For others it is the body and whether it betrays who we are constantly, every minute, so that no matter how hard we try, we are always lying. There is a great fear and anxiety of accidentally giving oneself away leading to a permanent self-vigilance and second guessing, lest some spontaneous random act gives us away. For some this becomes a constant hiding and cutting oneself off from others."

Bill Siksay's remarks are followed in the record by the comments of Sylvie Boucher. Among other criticisms, she pointed out that anti-transgender discrimination is better treated as discrimination on the basis of sex, and is already being treated as discrimination on the basis of sex by some human rights tribunals, thus making the addition of "gender identity" or "gender expression" unnecessary or redundant:   

"First, I would like to point out that the Canadian Human Rights Tribunal has already studied a number of complaints filed by transsexuals, and it found that these complaints were justified based on the ground of sex.  By deciding that transsexuals are already protected by provisions in federal human rights legislation, the tribunal followed the approach of human rights tribunals in British Columbia, Quebec and other provinces, which determined that discriminating against transsexuals is prohibited based on the current ground of sex."

This idea is also discussed in US court cases--that anti-trans discrimination can be regarded as a form of sex discrimination, rather than an independent form of discrimination on its own, because it's discrimination based on a failure to conform to the stereotypes associated with one's sex (one's birth sex, that is).

A statute with "gender identity" in it or a court case interpreting the word "sex"--what's the difference?  Same result, different routes.  Jillian Weiss, a professor at Ramapo College in New Jersey, has thoughtfully pointed out, however, that the latter implicitly affirms your birth sex as your primary identity.  The law isn't saying you're protected from discrimination because you're a girl who had the misfortune to be born a boy.  It's saying you're protected from discrimination because you're a boy who acts like a girl. Nonetheless, though it may not perfectly match transgender sensibilities, Canadian transgender discrimination law seems far more progressive than most US jurisdictions.

C389 drew the same kind of criticism that transgender rights often draw in the United States--that transgenderism is based on fleeting, arbitrary whims, and that social and legal acceptance of transgender people is the cause or sign of the end of Western Civilization.

In any case, though C389 passed the House of Commons, it did not survive in the Senate.

The Provinces and Territories

Bill Siksay said in his address that Northwest Territories is the only province or territory explicitly to include gender identity in its human rights law.  NT and the others:    

1. Ontario regards anti-trans discrimination as discrimination based on sex, as Sylvie Boucher describes, above.

2. Quebec also regards it as discrimination based on sex.  

3. New Brunswick: I don't know yet.

4. Nova Scotia: I don't know yet.

5. Prince Edward Island regards it as discrimination based on sex:

"This ground refers to a person's biological sex, as well as gender.  Gender is a broader notion that includes the social characteristics associated with each sex.  The Act protects against discrimination based on society's expectations of how women or men "should" dress, behave or act, and includes protection for people who are transgendered and transsexual."
6. Newfoundland & Labrador: I don't know yet.

7. Alberta requires a fee to see its human rights act, but the Alberta Human Rights Commission web site lists "gender" as protected from discrimination, and describes gender as including "transgender".  

8. Saskatchewan regards anti-trans discrimination as discrimination based on sex.

9. Manitoba regards it as discrimination based on sex.

10. British Columbia regards it as discrimination based on sex

11. Yukon: A sexual minority advocacy site say it's discrimination based on sex.

12. Northwest Territories includes gender identity in its human rights act:

"For the purposes of this Act, the prohibited grounds of discrimination are race, colour, ancestry, nationality, ethnic origin, place of origin, creed, religion, age, disability, sex, sexual orientation, gender identity, marital status, family status, family affiliation, political belief, political association, social condition and a conviction for which a pardon has been granted."

13. Nunavut: The Nunavut Human Rights Commission web site says it has never issued any human rights decisions yet (because it's relatively young?)  Therefore, of course, there's been no opportunity to define sex to include transgender people.

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