Kyle Kirkup is an incoming assistant professor at the University of Ottawa Faculty of Law (Common Law Section). Follow him on Twitter @kylekirkup
On Tuesday, Justice Minister Jody Wilson-Raybould tabled new legislation to better protect the human rights of transgender people in Canada.
Timing the announcement to coincide with the International Day Against Homophobia, Transphobia and Biphobia, the proposed legislation would add "gender identity" and "gender expression" as prohibited grounds of discrimination to the Canadian Human Rights Act, along with the hate crimes provisions of the Criminal Code. In doing so, the goal of the legislation is to redress the extraordinarily high rates of discrimination, harassment and violence experienced by transgender people across the country.
In the same moment that we applaud the legislation, however, more work needs to be done to better protect the human rights of transgender people in all facets of Canadian law and society.
While federal human-rights tribunals have consistently found that transgender discrimination is captured by protected categories such as "sex," adding "gender identity" and "gender expression" makes this interpretation crystal clear. Perhaps more importantly, the new legislation serves a crucial symbolic function – it tells members of transgender communities that they can use the law to respond to pervasive inequality.
The legislation is expected to make its way through the House of Commons with relative ease – Prime Minister Justin Trudeau committed Ms. Wilson-Raybould to introducing the legislation as part of her mandate as Minister of Justice and Attorney General of Canada. The NDP and Green Party, along with a handful of Conservatives, are also likely to support the legislation.
The more unpredictable question is what will happen when the legislation makes its way to the Senate – Conservative Senators Don Plett and Nancy Ruth have a long history of opposing Bill C-279, a precursor to the current legislation. After the legislation passed through the House of Commons in March, 2013, with support from all parties, including 18 Conservative members, it stalled and eventually died in the Senate last summer.
The tactics that killed Bill C-279 – a cynical series of amendments, adjournments and delays – embody everything Canadians dislike about the Senate. In 2013, Senator Nancy Ruth introduced an amendment to the bill, and Mr. Plett quickly followed by adjourning the debate. The Senate then took its summer break and never held a vote. After former prime minister Stephen Harper prorogued Parliament in the fall of 2013, the legislation was forced to make its trek back through the Senate.
When the Senate finally got to its clause-by-clause reading in early 2015, Mr. Plett introduced an amendment prohibiting transgender people from accessing "sex-specific" facilities such as washrooms (but only the small number captured by federal law, such as those on military bases). Echoing many of the arguments made by Republican lawmakers in states such as North Carolina, Mr. Plett suggested that affording transgender people basic human rights would somehow encourage men to enter women's washrooms.
The argument is both offensive and empirically misleading – in fact, there is a large body of evidence to suggest that transgender people are uniquely vulnerable to discrimination, harassment and violence in washrooms and other public spaces.
When the election writ dropped in August, 2015, Bill C-279 died on the order paper.
Canadians should be hopeful that the new legislation will not experience the same fate as its predecessor. If the legislation succeeds, the federal government will join Alberta, Ontario, Saskatchewan, Manitoba, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and the Northwest Territories, in passing similar protections over the past 14 years (and, it should be noted, these jurisdictions have spotless records on bathroom safety).
After the photo opportunities are over on Tuesday, however, Ms. Wilson-Raybould and others in the Liberal cabinet must do more than simply pay lip service to transgender human rights. They need to get to work on a range of federal laws and policies.
Take, for example, the legal regulation of transgender women in federal prisons – a portfolio overseen by the Minister of Public Safety and Emergency Preparedness, Ralph Goodale. In prisons across Canada, transgender women who have not undergone gender-affirming surgery are forced to be housed in men's institutions. Prison administrators know that placing transgender women in men's facilities is likely to make them vulnerable to violence and sexual assault. Administrators often place them into solitary confinement – a practice that has devastating mental-health consequences. While Ontario and British Columbia recently enacted policies to remove surgical requirements, the federal government has failed to show the same leadership.
Moving forward, the new human-rights legislation is just the beginning of a larger conversation about how we build communities that allow all our members to flourish, regardless of their gender identities and gender expressions.