SUMMARY:

The ongoing debate about gender identity rights has given voice to numerous concerns and anxieties. While no one wants to deny legitimate human rights to trans persons, there are very real questions about the implications of separating sex from gender and enshrining this in law.

The two primary concerns center around safety and privacy in spaces which were formerly segregated by sex, along with the concern regarding compelled speech — where people would be forced to use certain pronouns when addressing trans gendered persons.

These concerns are not trivial and need to be addressed. Spaces which used to be segregated by sex are now segregated by gender. Yet because gender is deemed to be fluid, this means there is no segregation. Anyone can now enter these spaces which used to provide some assurance of privacy and security.

With respect to compelled speech, the Ontario Human Rights Commission has clearly stated that, “misgendering is a form of discrimination”. The BC Human Rights Tribunal already ruled on this in 2015, removing any doubt on the question. Refusing to use a trans person’s preferred pronouns may not land you in jail, but it could bring a human rights complaint resulting in fines and damages.

Rather than ignoring these issues, Bill C-16 needs to acknowledge that gender rights are based on a personal belief, much like religious rights. As such, they must be subject to the same checks and balances as religious rights.

These checks and balances are two-fold:

  1. Verification: With belief-based rights — such as religion — it is not sufficient to simply claim to have a belief. The belief must be verifiable. This ensures that the law protects those who actually need it while not empowering impostors who would abuse this protection.The verification requirement does not prevent individuals from pretending to be trans in order to access private spaces which they would not otherwise be entitled to. But it does ensure that the law differentiates between those who are authentically trans and those who are not, so they can be legally refused entry or restricted from filing frivolous claims of discrimination.
  2. Government Cannot Compel Belief: Bill C-16 embraces the idea that gender is determined by a personal belief. But while each person is free to have their own beliefs, Parliament cannot mandate others to comply with a belief system in word or deed. This means that any law compelling the use of certain pronouns for trans persons would be unconstitutional as it forces compliance with a certain belief.

While seeking to protect rights, Bill C-16 crosses the line and imposes a belief system which many Canadians do not share. In doing so, it threatens to trample on existing rights. This is a serious concern which must be corrected.

FULL TEXT OF SPEECH:

Honourable senators, I rise today to speak to Bill C 16. First of all, I wish to state clearly and unequivocally that in our country there is no place for hate or intolerance directed against anyone. Protection against such behaviour is already established in law, including protection for trans persons.

In 1999:

“The Ontario Human Rights Commission took the position that the ground of sex under human rights law could be interpreted to include the right of transgender people to be free from discrimination and harassment.”

That was almost 20 years ago. Since then, every human rights commission across the country federal, provincial and territorial has either implicitly or explicitly affirmed the protection of trans rights.

Gender Identity and Expression

With Bill C 16, the federal government is following in the footsteps of the majority of provinces and territories. By amending the Canadian Human Rights Act to add “gender identity or expression” to the list of prohibited grounds of discrimination, Bill C 16 makes these rights explicit.

Bill C 16 also amends the Criminal Code by adding “gender identity or expression” to the definition of “identifiable group” and also adds it to the list of aggravating factors to be considered in sentencing. What Bill C 16 does not do is define “gender identity” or “gender expression.” Instead, it leaves it to be determined by the commission, the tribunal and the courts.

However, these terms are already defined by provincial human rights commissions across Canada. They’re all very similar to the Ontario definition, which says the following:

Gender identity is each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum.

Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance, such as dress, hair, makeup, body language and voice.

In other words, human rights commissions across the country define gender identity as a subjective, inward belief, while gender expression is the objective outward manifestation of that belief. These definitions are important because they tell us that gender identity and expression are based on a personal and subjective belief. As many others have noted, there is no objective means to determine if someone is transgendered. It is a person’s deeply felt internal experience.

Concerns about Bill C-16

Recognizing that gender is now based on belief helps to define the parameters of these rights and addresses a number of concerns that many Canadians have. I will touch briefly on two of these concerns.

1. Privacy and Security

The first is that of privacy and security. During our lifetimes, facilities such as washrooms and change rooms have always been segregated according to biological sex. We are now told that they are segregated according to gender. Yet, to the average person, sex and gender have always meant the same thing. This is no longer the case.

Gender is now supposedly disconnected from your biological sex and it is fluid. You can be a man one day and a woman the next day, depending on how you feel, regardless of your anatomy.

The practical implication of this is that anyone can access any washroom or change room at any time. There is no longer any segregation of these spaces. Many feel, including children and the elderly, that this presents a risk to both their security and their privacy. Few people would advocate for washrooms or change rooms without walls. And yet this is essentially what Bill C 16 endorses, by removing the only barrier which determines who is allowed to enter these spaces.

Let me be clear: This concern is not about preventing trans women from accessing women’s spaces but that we are allowing anyone to enter women’s spaces.

Honourable senators, this is a monumental shift in societal norms which must not be minimized.

2. Compelled Speech

The second concern to which I draw your attention is that of compelled speech. You have no doubt received the same letters in your office as I have in mine claiming that Bill C 16 does not impact free speech and does not criminalize the misuse of gender pronouns. This is misleading and incorrect.

While it is true that misgendering someone will not land you in jail, misgendering is considered actionable before human rights tribunals and courts.

By not using someone’s preferred pronoun, you could be subjected to fines, damages, termination of employment or other so called remedies.

The Ontario Human Rights Commission says this plainly. On their website, they have a page titled “Questions and answers about gender identity and pronouns.”

It says:

Is it a violation of the Code to not address people by their choice of pronoun? The law recognizes that everyone has the right to self identify their gender and that ‘misgendering’ is a form of discrimination.

The commission then notes that in 2015 the BC Human Rights Tribunal ruled misgendering was discriminatory in a case involving a trans woman and the police.

Colleagues, this is not a baseless concern, as some have suggested. You can read it for yourself on the Ontario Human Rights Commission website or in the decision of the BC Human Rights Tribunal in Dawson v. Vancouver Police Board.

These provincial policies and decisions concerning the use of pronouns are important, because Bill C 16 does not define these parameters.

The justice minister explained that Bill C 16 relies on legal interpretations which either have been or will be made by courts, tribunals and commissions. In the same way that provincial policies and rulings already compel the use of certain transgender pronouns, Bill C 16 will do the same at the federal level.

Addressing These Concerns

These concerns about privacy, security and compelled speech are not trivial. They need to be addressed. I believe this can be done without compromising anyone’s rights.

We are told that gender is now subjectively determined by one’s personal belief. It is not objectively determined like sex, race, ethnic origin, age or colour.

This shows that gender rights are very similar to religious rights. Both are protected based on a personal belief and thus both must be subject to the same checks and balances. It is these checks and balances which address some, although not all, of the concerns about gender rights.

Allow me to explain.

1. Rights based on religion or belief are protected only if the belief is sincerely held

First, because gender rights are based on a belief, the belief must be sincerely held. This is already true with religious rights.

In 2004, in Syndicat Northcrest v. Amselem, the Supreme Court of Canada noted that:

Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice.

In 2015, in Mouvement laïque québécois v. Saguenay (City), the Supreme Court wrote:

To conclude that an infringement has occurred, the Tribunal must be satisfied that the complainant’s belief is sincere . . . 

With belief based rights it is not sufficient to simply claim to have a belief. The belief must be verifiable.

Regarding trans rights, the need for verification of gender identity is not without precedence. In 2006, the Human Rights Tribunal of Ontario acknowledged that gender identity may need to be verified. They established six steps which could be taken by law enforcement officers in order to do so.

In 2015, the BC Human Rights Tribunal in Dawson v. Vancouver Police Board, which was a case involving a trans woman and the Vancouver Police, affirmed this, stating:

To demonstrate prima facie discrimination, complainants must show that they have a characteristic protected from discrimination . . . 

The requirement for complainants to verify that they have a characteristic needing protection from discrimination ensures that the law protects those who actually need it, while not empowering impostors who would abuse this protection.

This will not prevent individuals from pretending to be trans, in order to access private spaces which they would otherwise not be entitled to do. But it does ensure that the law differentiates between those who are authentically trans and those who are not.

To put it plainly: Trans rights belong to genuine trans persons, not those who would pretend to be trans in order to harm someone.

In my view, if Bill C 16 explicitly affirmed this fact it would help address, not all, but a significant portion of the privacy and security concerns.

2. The state can neither impose nor endorse religion or belief

The second reason it is important to note that gender rights are based on belief is: Canadians have a constitutional right to belief or non belief and Parliament is forbidden from legislating or endorsing belief.

In the Supreme Court of Canada’s 2015 decision on Mouvement laïque québécois v. Saguenay (City), the court said the following:

. . . the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief and this same holds true for non belief.

The court ruled that the state is obligated to create neither coercion nor exclusion through state endorsement of a religion or a belief. In other words, discrimination against trans persons is prohibited in the same way that discrimination is prohibited against Christians, Muslims, Jews, atheists or other beliefs. Each person is free to have their own beliefs and to express them.

Furthermore, neither federal nor provincial legislation can mandate others to comply with a belief system in either word or action. The state protects the right to believe but does not endorse or compel belief.

This means that the state cannot constitutionally require people to use certain pronouns, and yet without amendment that is exactly what Bill C 16 will do.

Crossing the Line

Fellow senators, this is where Bill C 16 crosses the line: In seeking to protect rights, it threatens to endorse and impose a belief system that many Canadians simply do not share.

In so doing, it will trample on existing rights which will undoubtedly lead to future Supreme Court challenges.

It is my hope that the Senate committee examining Bill C 16 will consider the merits of amending the bill to correct this serious problem.