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Another take on the 'trans rights' bill

Another take on the 'trans rights' bill

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Does insisting on enumeration actually reduce trans peoples' civil rights?
The trans community has made important legal, political and social advances in the past decade, perhaps best exemplified by the passage last year through the House of Commons of Bill C-389, which added gender identity and gender expression to Canada’s Human Rights Act and to the hate crime provisions of the Criminal Code -- even thought the bill eventually died when the election was called before it was debated in the Senate.
 
On Feb 21, Ontario NDP MPP Cheri DiNovo introduced a private member’s bill to add "gender identity" to the Ontario Human Rights Code. She’s introduced the bill three times before, only for the bill to die on the order paper for lack of support by the governing Liberals. She’s hopeful it’ll pass under the current minority government.
 
"To be a trans person means you are at high risk in society," she says. "We want to close any possible loophole. We want to keep our children safe."
 
But it’s unclear if the bill will actually help trans people. On the contrary, it seems the ongoing debate is doing more harm than good.
 
While Human Rights Commissioner Barbara Hall has been supportive of the measure, it’s also true that the Ontario Human Rights Commission already considers trans people to be protected under the existing human rights legislation on the ground of “sex.” The OHRC even has a page on its website that goes into extensive detail on the duties of employers and others to accommodate trans people.
 
To be clear: it is already illegal to discriminate against trans people in Ontario. In fact, no one has yet been able to point to a case where a trans person was turned away or received a negative judgment from the OHRC when they made a case of trans discrimination.
 
And even though Bill C-389 died last year, a spokesperson for the Canadian Human Rights Commission says that trans people can file federal complaints under the sex or sexual orientation sections of the Act. He also told me there is a plan to overhaul the commission’s website to correct erroneous and outdated information that suggests otherwise.
 
Even if the OHRC weren’t already reading “gender identity” into the category of sex, it could be argued that the necessary protections should already be there, because of the equal protection clause (section 15) of the Charter of Rights and Freedoms.
 
Here, it’s important to recognize the difference between the Canadian and American versions of civil rights. In the US, you have the right to discriminate against anyone unless the law specifically says you can’t. That’s why activists have been pushing a federal non-discrimination act for four decades, and to this day, Ellen could be fired from her job just for being a lesbian in 29 states.
 
 
In Canada, the Charter’s equal protection clause says we can't discriminate against anyone. The listed classes of discrimination in the Charter are given only as examples – “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
 
This is why in the Egan case in 1995, the Supreme Court was able to “read in” sexual orientation as a prohibited ground for discrimination even though it isn’t enumerated in the Charter. In the 1998 Vriend case, the Supreme Court read “sexual orientation” into the Alberta Human Rights, Citizenship and Multiculturalism Act, despite the fact that the legislature had specifically excluded it – excluding gay and lesbian people from human rights legislation was found to be discriminatory and hence unconstitutional.
 
So those rights should already exist for trans Canadians, even in jurisdictions where they’re not specifically enshrined in law or regulations.
 
Engaging in this debate about whether or not we should include trans people explicitly in the OHRC – even the language, calling it a “trans rights” bill that would “protect” trans people from discrimination – confuses the issue by making it sound like trans people don’t have those rights already.
 
It’s actually incredibly disempowering. Trans people don’t need the legislature to assert rights they already have, and insisting they do implies they don’t have rights otherwise. The discourse could have the impact of suppressing rights claims from trans people who erroneously believe they have no civil rights until the legislation passes.
 
Moreover, using the legislature to achieve these rights may actually expose trans people to greater long-term harm. If we concede the legislature has the power to establish these rights, then it would also have the power to take them away. A Hudak majority in the next election cycle could do more harm armed with the belief that rights spring from Queen’s Park rather than the Charter. Have we already forgotten that Hudak tried to turn trans people into the horrible bogeymen coming after your children in the dying days of the 2011 election?
 
And what of trans people in other jurisdictions? Are they best served by fighting individual battles in 11 legislatures, or is a nationwide assertion of already-held Charter rights the best way forward? Wouldn’t it be easier to assert that “gender identity” is covered by the various human rights codes’ inclusion of “gender” or “sex”?
 
Advocates for Toby’s Act rightly claim that trans people face incredible amounts of discrimination. But amending the Code won’t solve this, in the same way that including “race” has not ended racism. Conversely, the absence of a specific reference to sexual orientation in the Charter or Alberta’s HRCMA did not stop the general advance of gay and lesbian people’s social status since the 1990s.
 
So is the bill the best remedy for the discrimination trans people face? I would say no. Government can and should play a role here, by taking even more proactive steps to educate people about gender identity and their duties to accommodate trans people – reinforcing the rights that already exist. Government can also improve the lives of trans people by establishing better medical facilities and clinics for trans people throughout the province.
 
It’s true that passing Toby’s Act may achieve a symbolic victory for trans people. And while I don’t speak for trans people, I’d bet it’s more important to achieve substantive victories.
 

 
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Comments

Separate
It is impossible to enter into a discussion about trans issues without being attacked for having the incorrect take on the issues. I for one am sick of it, and I am not transphobic - a term that is hauled out as a trump card. What is needed is a trans version of "Xtra" so that you can have these vicious internal conversations you so desire without the intrusion of gay men entering the conversation and pissing you off. I think the time has come, PTP. How about a trans site? I'd like to get back to the dyke and faggot issues at hand, the community that built Xtra and which Xtra is primarily supposed to service. We'll never make them happy, let's stop trying.
Nope, nothing wrong here.
Is that a slathering dog coming at me. Oh, no probs--the courts will protect me. Whew. The charter is ICONIC -- let the people (and the slathering rabid dogs) see that gender and sex are separate, and stamp it into their consciousness any way possible. C'mon why not let the itty bitty gender variants have their kind stamped on the Great Charter Wall. Is that too much for you? Even if we say 'Pwetty Pwease'??
Not necessary? As one commenter has already mentioned... Walk the walk dude--then talk the talk and tell me it ain't so necessary. btw, thanks for speakin' down for us... it's so charming. mwah!
you're right
Patrick that did occur to me as well after I posted above, I'm relatively familiar with the Charter of Rights since I studied it in university but that was 18-19 years ago, I've forgotten much of it since then or rather the memories of what I learned are very fuzzy. However its still true that the Charter guarantees the equality of everyone and not just the enumerated groups, I had figured that also applied to provincial gov'ts and since the OHRC is an agent of the provincial gov't it would apply, but in reality it wouldn't since the OHRC deals with citizens not gov'ts and their agencies. I don't see why the OHRC could not be changed to adopt the same language of the Charter to ban discrimination amongst citizens of any group of people. I don't mean this to be rhetorical but is there ever a situation where it would be permissible for one citizen to discriminate against another? I can't think of any reason, so long as hired/fired/evicted for cause is maintained and I don't see why it wouldn't be. It just seems like it'd be much simpler for a MPP to pass a bill that changes the OHRC to make it ban discrimination against anyone by anyone. I suppose there's some reason for it I can't imagine right now. I'm very optimistic that Toby's Act will pass this time around since the Libs have a minority and the NDP are strong supporters of the bill.
Misunderstanding the scope of Charter protection
The Charter only applies to the actions of government. So, even if s.15 were ruled to extend to trans people, it would only protect against discrimination by government. It would not help a trans person who was denied accommodation, or a job, or service in a store, because they are trans. The OHRC rules in those cases, which is why the amendments are needed.
I think I agree
Personally I kind of agree with Rob on this one, although I disagree with some of his reasoning. I disagree that introducing this legislation is dis-empowering or harmful, because I really don't see that. That being said ever since this became a big push by the community I was confused. In terms of priorities, I would say getting explicit protection, when we are already protected should be a very low priority. I highly doubt the extra line on the code will make a big difference in stopping people discriminating against us. Rather than fighting for explicit protection I would rather we advocate for health care for trans people in every province and better health care and access to health care in the provinces that do cover us. Or changes to the prison system that forces trans people to be segregated with the wrong gender. Or make changes to background checks, like the British have, where your old name is not shown to your employer if you clear the check and are trans. And I would also like a bigger fight to be able to amend documents easier, specifically birth certificates and passports. Personally I think these things are much more pressing issue and I think would have a greater impact on the lives of trans people than just getting a line on a paper letting others know we have rights that we already have.
@Rob
{no one can point to a single trans case with merit that's been turned away from the OHRC. }
Huh? You can't point to a case because unless accepted by the commission the complainant has attended, no case file begins. And even at the very beginning stages still nothing will ever show up. I could point to cases of merit, if such a record was kept. I know of such cases that were not followed through with. But good luck finding them within the commission because only those that reach further into the process are accessible in their archive system.
It's sort of like saying that queer people were not being persecuted long ago because there are no written complaints filed and found within the complaint system of the day. That's utter nonsense and typical of your thinking.
I'm a woman of colour and I know what it was like growing up seeing the clear targeting by police of my black sisters and brothers. It wasn't until actual legislation came it that there was a hope to do much about it. For that matter doesn't that sound alot like people who are queer as well? Bath house anyone? Changes happen through education and that happens much easier when laws make it ok. It's much harder to remove a right, regardless of how it became a right. Rob stop being a jerk already.
Of Course...
While true that people born with transsexualism and people who are transgender are vaguely covered within the various human rights codes each person born with ....or who are.... must each time make that case for the coverage and then those who have breached the code will try to make the case why that heading should not cover that person. This clearly means that too many companies/organisations are not aware of said vague coverage when they are going through, with their own human resources, of the protections. Having it explicitly spelled out makes it clear and means organisations no longer have the ability to claim ignorance. (which they do) This includes those in the justice system who for too often will refuse to acknowledge that woman or man because their documents don't yet fully concur.

I wonder of those who think this need not be written in would feel the same way if gay wasn't written in but instead was sorted included within some other grouping.

And Rob not sure how you can get to the idea that having it included specifically is going to cause more harm, because of the Hudat ilk.
As for creating a "movement" to make changes to the Charter takes money. That money which was removed when Harper came to power. It was money like the Court Challenges Program that helped people who are gay make those changes before.

And Rob, it was that money that when a Charter Challenge was in it's beginning back in 99, that EGALE decided would be better used for equal marriage. Of course with that promise of, lets do this one first then.......

People like "yours stupidly" constantly show why protections need to be made concrete. I suspect he was one of those transvestites who tried to get past CAMH but was called on for being what he is. An autogynephilic transvestite. The kind he mentions himself.
OHRC not same as Charter
Its been pointed out to me that the OHRC is not the same as the Charter of Rights. So while trans people do have the same equality guarantees and protection from discrimination at the federal level as anyone else that's not true of the provincial level, at least in Ontario.
trans equality rights do already exist
It is true that the equality rights of trans people is already enshrined in our Charter of Rights. Section 15.1 states "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination", then it goes on to list the enumerated groups as examples only. Section 15.1 clearly states that all Canadians are equal under the law so Canadian trans people are already covered by equality rights in our Charter as is everyone else. This is why equality rights for LGB people were "read into" the Charter, there were no new equality rights for LGB people because of this but it did acknowledged that LGB Canadians do have equality rights since "every individual" has equality rights. Its the exact same for trans people, any trans person or group who launches a discrimination suit will win if they can prove the discrimination because they too are covered under "every individual" just like everyone else. However as I mentioned above I do believe its very important to add gender identity and gender expression to the enumerated classes since our laws have a teaching role in our society. Making it clear and obvious that trans people do have the same equality rights and protections from discrimination as everyone else will, in my opinion, help reduce discrimination against trans people since it would remove any doubt at all that they are covered by the equality and anti-discrimination sections of our Charter. Btw sexual orientation has not been added to the enumerated groups in the section 15.1 of our Charter but the equal marriage debate and resolution still had the effect of using the law as a teacher about the equality of LGB people. But there is unlikely to be as large or wide spread discussion of trans equality as happened with the equal marriage debate so adding gender id/expression to the enumerated groups will accomplish the teaching goal of our laws instead.
a man's paradise (?)
I must say, reading 'yours truly's' epistle is enlightening: a world of gay men without ANY women WHATSOEVER. It must be something that such men, and 'yours truly' can only be a man, dream of. It is always a wonder how fearful some men are of women--and this man's homosexuality seems, in this missive, to pass the boundary of the absurd.

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