PARLIAMENT HILL – When the Senate returns from its Easter break, the Senate’s Standing Committee on Legal and Constitutional Affairs will be examining Bill C-16 (transgender rights). There, Senators will hear from witnesses on the issue and consider if amendments should be made to the bill.
At first glance, it doesn’t look like there’s much to amend. The bill adds only four words, “gender identity or expression,” to the Canadian Human Rights Act (in two different places), and then does the same to the Criminal Code.
Besides, most Senators are well aware that trans rights have been recognized in Canada since 1999 and are already protected right across the country both federally and provincially. Bill C-16 will not change this whether it passes or not.
What it will do, as explained by Justice Minister Jody Wilson-Raybould, is make it easier for the courts to interpret these existing protections and raise awareness about gender rights. As far as the Human Rights Act goes, the minister insists that Bill C-16 simply takes protections which are currently implicit and makes them explicit.
This all sounds benign enough, but there are genuine concerns about the legislation which should be addressed.
Like its provincial counterparts, Bill C-16 endorses the concept that gender is disconnected from biological sex. Each individual is free to personally determine their gender, and your gender does not have to match your anatomy.
It’s called “the right to self-identify.” You can be a woman one day and a man the next. You can be a man by day and a woman by night. What you choose is completely up to you because, “gender identity is each person’s internal and individual experience of gender.” It can be fluid and is determined solely by the individual.
This means that, as a prohibited ground of discrimination, gender differs from grounds like race, colour, age, sex, disability or marital status. These grounds are determined objectively whereas gender is determined subjectively on the basis of a personal belief-much like religion.
This is significant because when it comes to rights based on personal beliefs, the state protects the person’s right to believe but cannot endorse those beliefs or impose them on others.
For example, if you are a Christian or a Muslim or an atheist, you are protected from discrimination but your protection does not create an obligation for others to validate your beliefs. You are free to hold your beliefs just as others are free to hold their own similar or differing views.
Furthermore, it is not sufficient to simply claim to have a belief. The courts require that beliefs must be sincerely held and can be neither “fictitious nor capricious.” You can’t just wake up one day and decide you are an Orthodox Jew so that your employer can no longer ask you to work on Saturdays. The need for authenticity makes certain that the law protects those who require it, while not empowering imposters or encouraging claims that the court would consider frivolous or vexatious.
It is very likely that even without an amendment to Bill C-16, the courts will understand gender rights to be belief-based and interpret those rights accordingly. But Parliament needs to make this explicit. By doing so, it would be protecting the rights of trans persons without endangering the rights of others.