Brenda Cossman is a professor of law and director of the Mark S. Bonham Centre for Sexual Diversity Studies at the University of Toronto. Ido Katri is a doctoral candidate, Pierre Elliott Trudeau Scholar and Vanier Canada Scholar at the Faculty of Law, University of Toronto.
The passage of Bill C-16, which adds protection of gender identity and expression to the Canadian Human Rights Code and the Criminal Code, is a huge step forward towards a right for gender self-determination. This is a historic moment.
The new law, passed in the Senate on Thursday, prohibits discrimination against trans and gender non-binary individuals, and includes them within the protections provided by the hate-speech and hate-crime provisions of the criminal law. With the enactment of Bill C-16, the federal government finally joins the provinces and territories that have amended their human rights codes to recognize and protect gender diversity. It is a long overdue statement of the formal equality of trans and gender non-binary Canadians.
It has been a rocky road. Previous private member's bills had been defeated in the Senate. Bill C-16 became the focus of controversy, with opponents lining up behind claims that the law would violate freedom of expression. Legally and factually dubious claims about the law became the platform to oppose equality for trans and gender non-binary Canadians, cloaking the underlying transphobia that animated the opposition. These messages even got their day on the Senate floor, where they found some sympathetic ears. If not for the tremendous efforts of other senators, experts, advocates, trans people and their incredible parents, these hateful ideas could have blocked bill C-16 from becoming legal reality.
In the end, equality prevailed, and trans and gender non-binary Canadians are now recognized as formally equal citizens.
But the work of real equality has only just begun. Turning formal rights into substantive protections for trans and gender non-binary individuals will be a hard process, and Bill C-16 provides only the simplest of tools.
As the history of movements for racial justice and women's rights has shown, anti-discrimination laws are limited in their ability to tackle structural inequalities. And the structural inequalities that trans and gender non-binary individuals face are monumental.
We need to look at the constant diminishing and loss of trans lives. We need to consider the disproportional rates of incarceration, criminalization and underemployment, as well as the limited access to health care and education, suffered by gender-diverse individuals and communities. We need to confront that these numbers are significantly higher within black and Indigenous communities. We will need to look deeper into the heart of our own legal system if we are really committed to finally addressing the vulnerabilities faced by trans and gender-diverse communities.
From driver's licenses to gender assignment on birth certifications, we need to fundamentally re-imagine the relationship between sex and gender. We need to move forward and join the growing number of countries that have legislated a right for gender self-determination. In 2012, for example, Argentina pioneered the first law for gender self-determination, allowing individuals to self-determine their gender identity and obliging government to respect this, including in its official documents (such as identity cards) and the health-care system (by providing free access to gender-affirmative medical care).
Bill C-16 is a crucial step on the road toward gender self-determination. Its defeat would have been devastating. But the formal protections it provides will remain symbolic if we do not move forward with the harder work. Today, we celebrate equality. Tomorrow, we go back to the work of making it real.