Criminal Law Bill to outlaw transgender hate speech recognizes everyone is equal
OTTAWA – For years, transgender Canadians had to come up with creative arguments in front of courts and commissions to link discrimination against them with existing human rights laws.
The human rights laws extend some protections to transgender people under the sex discrimination category, but there have been few cases before the federal human rights tribunal, so the scope of the protections themselves has not been all that clear.
The same situation exists for hate speech and hate crime laws: violence against transgender persons may have been captured before, but it wasn’t clearly spelled out.
Legislation the government introduced Tuesday would clarify all of that, adding gender identity and expression to human rights and hate crime laws.
“Thank goodness this bill is passing because it will protect us from … hateful propaganda, assaults, rape – stuff like that,” said Charlie Lowthian-Rickert, who was born a boy but identifies as a girl.
“It could protect us and stop the people who would have just gone off and done it in the past and discriminated or assaulted us. Now it could be stopping them and then basically punishing them if they actually do it,” the 10-year-old said during a morning news conference alongside the federal justice minister.
The bill still has numerous steps before it becomes law. The NDP tried unsuccessfully to fast-track the measure through the House of Commons on Tuesday, arguing it was similar to a private member’s bill the Commons approved in the last Parliament with cross-party support.
That bill, from New Democrat Randall Garrison, languished in the Senate before it was ultimately gutted and died when the election was called.
Interim Conservative leader Rona Ambrose said she’s prepared to vote for the new bill, but opposition remains in the Senate where Conservative Don Plett said he’s not ready to support the measure.
On his way into the Commons, Prime Minister Justin Trudeau said he expects the Senate to recognize the rights contained in the bill.
The legislation would, if passed, make it illegal under the Canadian Human Rights Act to deny someone a job or to discriminate in the workplace on the basis of the gender they identify with or outwardly express.
It would also amend the Criminal Code to extend hate speech laws to include gender identity and expression.
Criminal laws would be changed to make it a hate crime to target someone because of their gender identity or gender expression, meaning judges would have to consider it as an aggravating factor in deciding on a sentence.
“We live in a time when discrimination in any form is completely unacceptable,” Justice Minister Jody Wilson-Raybould told a news conference after introducing the bill.
“This is a message of hope to ensure that we recognize gender identity and gender expression and provide the ability in our country for people to feel safe and secure in who they are.”
She said it is necessary to make it unequivocal in law that transgender persons have the right to live free from discrimination, hate propaganda and hate crimes.
In an interview with AdvocateDaily.com, Toronto criminal lawyer Roots Gadhia applauds the government for its approach to equal rights for transgender individuals.
“I think in principle and in a perfect world it’s amazing and to a certain extent expected,” she says. “Every person under the law should be equal and given the same benefits, rights and privileges.”
Reality, however, is far more complicated and the definition of gender, just like the definition of common-law spouse as it was defined over again in family law cases, and how gay partners had to fight to get spousal privileges, all have to go through growing pains, says Gadhia.
“Even something as simple as using a bathroom becomes a contentious issue when one side says they feel uncomfortable having their wife or daughter share a bathroom with a transgender male,” she says. “How do you ensure that an individual is truly transgender and not someone accessing a woman’s bathroom for nefarious reasons?
This may seem extreme and unlikely, but still a valid concern that has to be taken into account by legislators.
“How do you protect a transgender male who is forced to enter a male bathroom?
Throw alcohol into the mix at a bar or club and Utopian ideals go out the window.”
Gadhia says this law highlights the importance of balancing the rights of transgender individuals with protecting the rights of others.
“It’s similar to the debate that is undertaken on issues such as euthanasia,” she says.
While lawmakers begin with a principled ideal to achieve the fairest condition for the general population, Gadhia notes that “idealism has to be tempered with practicality and consideration.
“Once variations need to be made and accommodated then conceptually every possibility has to be considered and not every computation or variable can be anticipated,” she says. “Something as simple and right as giving equal rights and protection under the law can have grave consequences.”
The law was introduced on the International Day Against Homophobia, Transphobia, and Biphobia.
Wilson-Raybould wouldn’t say whether Liberal MPs would be allowed to vote their conscience on the bill or be forced to support it. But she said she hopes for support from all parties.
The minister also said the law, when passed, would ensure data is collected around violence against transgender people.
A survey conducted by Trans Pulse Project in 2010 showed that out of the almost 500 transgender respondents in Ontario, 20 per cent reported having been physically or sexually assaulted, though not all of them reported the assaults to police.
The respondent-driven sampling survey found 13 per cent reported being fired and 18 per cent refused a job because they were transgender.
Groups including Trans Equality Canada, Amnesty International, the Centre for Israel and Jewish Affairs and the Canadian Association of University Teachers all praised the move by the Liberals, calling it long overdue in the path towards equal rights for all.
Once passed, the Canadian Human Rights Commission would likely provide detailed guidance to employers and employment lawyers about what the new laws mean and raise awareness among the general public.
“It’s a good first step because that allows for the ability at the federal level to challenge things in court if needed,” said Talia Johnson, an Ottawa-based counsellor.
“Any human rights legislation only goes so far, so we need to also work on education so that cases don’t have to come forward in the first place.”
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