Autumn Getty frets every time she needs to use a public washroom. As a trans woman, she’s never sure which one to pick. “In the male washroom, I’m nervous about violence and in the women’s I fear I will make people uncomfortable.”
This week, she shared her experience with Hamilton city council ahead of a vote on a new anti-discrimination policy that put the southern Ontario city on the leading edge of municipal protection of transgender rights.
The initiative, which passed on March 8, is part of a settlement reached last year in a human-rights complaint filed by an unnamed transgender woman denied access to the women’s washroom by a security guard at a downtown bus station. It codifies the rights of transgender people to access city services and facilities according to their gender identity, including single-sex washrooms and change rooms.
Ontario already protects transgender people from discrimination in its human rights code and with Toby’s Law, passed in 2012. Many other provinces have adopted similar protections. But few municipalities have formalized policies governing how transgender people will be treated. Yet cities are where the “rubber meets the road” on gender rights, Hamilton Councillor Aidan Johnson said.
“The public washrooms of Canada are run by municipalities. We have a very important role to play in the conversation and the move for equality,” said Mr. Johnson, Hamilton’s first openly gay councillor.
“It’s a very important moment of reconciliation.”
And while washrooms are just part of a broader access issue that touches housing, health care and social services, they are, at once, the most visible and the most hidden battleground.
Trans people say the washroom debate isn’t about signs on doors but about their very right to exist in public.
“Just having to do a private bodily function is seen as an act of resistance. And that can turn into violence,” said Will Rowe, a trans man and long-time advocate. He says trans women using washrooms marked for men are most at risk.
The protocol makes it clear that any challenge to a person’s right to access a washroom because of gender would be “unacceptable” harassment. The city would also provide single-stall, gender-neutral washrooms where possible.
Hamilton’s move comes as Canada’s Senate considers Bill C-16, which adds protection for gender expression and identity to the federal human-rights code and makes violence against transgender people fall under hate-crime provisions. An attempt to pass similar legislation under the Harper government failed.
It’s also become a divisive issue in the Conservative leadership race and in the United States, where President Donald Trump recently reversed landmark guidance to public schools to allow transgender students to use the bathrooms of their choice.
An Ontario survey found two-thirds of transgender people have avoided public places because they fear harassment and violence. It contributes to isolation, depression, poverty, addiction and suicide.
According to a 2015 study by researchers at Western University in London, Ont., one in 167 Canadians attempt suicide each year. For transgender people, the rate is one in nine.
“It’s not because we hate who we are but because the world hates who we are,” said Mr. Rowe, who transitioned 10 years ago and was the long-time facilitator of a trans peer support group.
The Hamilton protocol allows individuals to self-identify their gender on city forms, requires city staff to address individuals according to the pronoun and use gender-neutral language (such as people and they) where gender-specific language (men and women or he and she) is unnecessary. It also codifies the rights of transgender city employees and requires sensitization training for all staff.
The backdrop to the city’s initiative also includes a legal challenge from the Christian Heritage Party over its bus shelter ads last year depicting a man about to enter a door labelled “ladies showers” with the words, “Competing human rights …Where is the justice?”
After an outcry, the city apologized and pulled the ads, which many say were a thinly veiled attempt to stoke unfounded fear about male predators lurking in female washrooms by posing as transgender. The CHP and a local riding association have made an application for judicial review, arguing the city violated the party’s freedom of expression.
“It’s rare when you have two important values collide,” said lawyer Neena Gupta, but adds governments have an obligation to shield those protected under human-rights codes from discrimination.
Ms. Gupta, a partner with Gowling WLG, thinks it’s likely a court could find that the city did violate the party’s freedom of expression but that it was a “reasonable limit” under the Charter of Rights and Freedoms.
Jim Enos, a former CHP candidate behind the legal challenge, declined to comment. But Andre Schutten, legal counsel for the Christian and conservative Association for Reformed Political Action, says it’s “dangerous ground” to favour some rights over others.
His group believes washroom use should align with sex at birth and that especially those who don’t clearly conform visually to one sex or the other should use either the washrooms of their birth sex or a gender-neutral one.
“We need a balancing of rights but this [protocol] is out of whack. It is not bigotry for a 10-year-old girl to feel uncomfortable in that person’s presence,” Mr. Schutten said. “It’s not appropriate for a child to have to ask city staff for additional facilities because someone is walking around inside with his penis exposed or her penis exposed.”
This isn’t the first time washrooms have been on the front lines of societal integration, saidMs. Gupta, who co-chairs her firm’s diversity and inclusion council. She cited the years of segregation in the U.S., when blacks couldn’t use white washrooms, or the early years of women’s influx into the work force when there were no bathrooms for them at all.
“The ability to use a washroom is one of those basic markers of dignity. It’s symbolic and it’s important because it says something about who we are as a society.”
While trans advocates are hopeful Hamilton’s protocol can improve lives and repair some of the damage done, they say their community had little role in developing it.
“Why is it that even in drafting policy for transgender people, we still have to beg to be consulted?” said Cole Gately, a trans man and long-time community educator. He says it’s essential trans people lead staff training because that’s where the true power of the protocol lies.
The need for such a policy at all is foreign to indigenous people, who honour “two-spirited” people as powerful spiritual leaders, said Lyndon George, an indigenous justice outreach co-ordinator for the Hamilton Community Legal Clinic.
“We are not about excluding people from our community or putting people in boxes,” said Mr. George. “I can’t believe so much time is being wasted on this. Everyone should feel safe and included in their own home.”
The policy got final approval at council on Wednesday.Report Typo/Error
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