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C-279: When a victory for one can be a victory for... one

The second hour of second-reading debate for Bill C-279: An Act to Amend the Canadian Human Rights Act and Criminal Code (gender identity and gender expression) occurred on Friday June 1, and the Second Reading vote is to take place on Wednesday June 6. I missed any indication that the discussion was going to happen, and consequently didn't catch up on things until today when I was preparing to post the Hansard and looked at the discussion that took place.

IF Randall Garrison carries through on his promises to make the amendments stated at the end of Second Reading discussion, then I (as a trans activist) probably would no longer support this bill. I have not decided if I would actively oppose it, but I will express right now why I very likely would not support such a bill.

Here's the good news. Five members of Parliament spoke up and every one expressed support for extending human rights protections to transsexual and transgender people, and in the voice tally that followed, the yeas were deemed in the majority (which makes it better than both tallies during C-389's passage). Here's the bad news:

"If we can get support at second reading to get the bill to committee in the vote next Wednesday, we on this side will support amendments to do two things. We will support an amendment to remove the term "gender expression" from the bill, and we will support an amendment to add a definition for "gender identity" to the bill. I trust that this commitment will secure enough support to move forward on the protection of transgender Canadians."

Maybe there's a master plan. Maybe there's a definition that won't eject anyone, though I'm skeptical that's possible. The problem is, I've seen this before, several times, in the media that I monitor as a blogtivist. In 2011, it became one of the new "ways that you pass trans-inclusive legislation." I'll not name the other one, for fear of giving people ideas, but will say that it starts with "Maryland" and ends with a whole lot of schism.

I'll post the Hansard discussion complete from 1:33 to the end of discussion for Bill C-279 at the end of this article where it is posted at Dented Blue Mercedes, given that the cuts to the Libraries and Archives Canada bring into question whether and for how long Parliamentary debate records will be kept. I have the Hansards for C-279 discussions archived for my use and can locate them for other interested parties upon request as well. I will be doing the same with the previous session's Bill C-389.

This is why I will most likely not support a trans human rights bill with gender expression removed and with gender identity narrowly defined.

Firstly, I want to be clear that I do not doubt Mr. Garrison or question his motives. I believe that he doesn't fully realize the implications of both actions, and in his passion and dedication to secure human rights for trans people, sees these as the means to achieve them. We are all -- during our moments of privilege -- prone to making these kinds of errors. It's the privilege of never having had to experience and cope with the many means that are used to disenfranchise us.

But if you want to be angry, save it instead for bloggers living in the heart of Conservative country who have failed to change the hearts and minds of -- and in most cases, even secure meetings with -- people whose votes would have made the difference on this bill. I have big shoulders. So be it, if it means that we don't burn the bridges we'll need in order to start over.

It's important to recognize the efforts of someone like Randall Garrison (and Bill Siksay before him) who has taken up what is a difficult task in this Parliament, and has by all accounts worked tirelessly on it. I do however strongly urge him to reconsider.

Defining gender identity

We do not define terms in human rights legislation. We never have. The moment we start establishing definitions, we are placing limits and defining who can be excluded from those protections.

We do not define disability, for example, in a way that excludes certain kinds of mental disabilities that we might be uncomfortable with. Whether or not we are comfortable with any group, all humans are deserving of equal rights to employment, housing, and access to services. Whether we are comfortable with any group, all humans are deserving to be judged by the legality and ethics of their actions, and not based on a characteristic that they happen to have.

Classes in human rights legislation are also typically open-ended to be inclusive of all people, in the spirit of granting equality to everyone, rather than defining terms to the point of exclusion.

Too, our understanding of the human experience changes as we learn more about it. To define transsexual people according to a 2012 understanding of transsexuality can easily become a conflict for Canadians in 2030. One very specific way I could see this happening is if the current medical diagnosis and classification of transsexuality -- already a very volatile topic of debate in medical and social communities -- changes and/or if transsexuality is declassified as a mental illness, which is certain to happen at some future date.

Each defining trait excludes -- some fatally. Here are some examples:

Gender identity is the gender a person identifies as, which may not always correspond with their physical sex. This usually refers to operative and non-operative transsexuals. However, in other regions in North America and the world, I have seen legislators attempt to define gender identity in a way that requires surgery. A person who is transitioned and has surgery is no longer between sexes ("trans-sex") and is protected as the man or woman that he or she has become. Definition that includes a surgical requirement essentially excludes absolutely everyone who needs protections via gender identity.

That one is unlikely for Canada, I admit, and I certainly don't believe that Mr. Garrison would abide such a definition. More often, though, I see attempts to define gender identity in a way that requires a diagnosis and some form of paper certification from a medical professional that a person is in transition. This automatically excludes everyone who is:

- on the waiting list to see a therapist regarding gender identity issues (in Alberta, that waiting list is currently at 18 months);

- not currently covered by provincial health care and / or unable to afford private insurance coverage for medical professionals' visits;

- is a landed immigrant or refugee and similarly with limited health care and access;

- has been unsuccessful in finding a trans-aware and trans-friendly therapist who is willing to make such a diagnosis;

- unaware of the medical process and the steps they need to take to secure their human rights protections;

- unwilling to see medical professionals for their transition because of past negative or even traumatic experiences (some have undergone ECT or even psychosurgery in previous attempts to cure them of their gender identity; others have simply had conflicting experiences);

- choosing not to undergo the medical process out of the insistence that transsexuality is not mental illness and not wanting the diagnosis on their medical record (since there is currently no exit provision, although that may change in the 2013 release of the DSM-V);

- believing that they do not need to see a therapist because they do not intend to have genital surgery;

- I could go on.

In theory, this could also introduce a reverse onus on a transsexed person to keep a carry letter on their person to prove their status as transsexed. This creates a "papers please" circumstance that no other Canadian has to endure in order to avail themselves of their human rights protections, and as such, it is an undue hardship. Carrying such papers could expose a person to discrimination or even violence if found by a significantly transphobic person.

In any case, a definition creates a reverse onus on a person to prove that they meet the criteria of the definition, and the opportunity for a court to deem a person unqualified for their own rights.

Gender identity is not a new concept. The term was developed by the Johns Hopkins Medical Center in 1966. It has been in legal use in North America since the 1980s. Gender expression has also been in legal use in North America since the 1990s, for that matter. Inclusion has been made in the Northwest Territories and Cities of Toronto, Vancouver and Ottawa -- as well as many human rights commissions -- without the lack of definition having caused any issues. A definition is simply not necessary, and there is ample case law in Canada, let alone other Western nations, to draw from when sorting out legal implications.

But maybe I'm wrong, and maybe there's a magic definition that won't exclude. I'd like to see it. Unfortunately, I suspect I'll be able to cite examples of people it will disenfranchise.

Dropping gender expression

Although popular nomenclature lumps everyone under the term "transgender," transsexual people are only one of the groups that are popularly included in that term. Also included are individuals who are not transitioning, but consider themselves to be between gender. I've discussed gender expression in full previously. For example:

"... Genderqueer might refer to intentional androgyny, occasionally to hyper-femininity/hyper-masculinity done contrary to genitalia-based expectations, or mixing and matching gender-assumed clothing and/or roles in order to challenge societal assumptions.

Genderqueer can include anyone who feels they don't fit a strict binary of "male" / "female," or people who willfully reject such a binary in defining their own identity. They may refuse to conform to gender stereotypes, or may even snub them emphatically. Gender neutral pronouns such as "zie" (pronounced "zee") or "hir" (pronounced "heer") might be used...."

Without the inclusion of "gender expression," they are most likely left out of human rights law. Even if a definition of gender identity were to have some aspect that mentions gender expression, it would create a reverse onus for someone -- a genderqueer person, for example -- to explain how genderqueer is a gender identity... which means it could be vulnerable to interpretation.

Additionally, without the inclusion of gender expression, transsexed people might still be subject to having their right to employment, for example, made dependent upon maintaining a gender expression that the employer considers acceptable (i.e. if you have a penis, you have to abide by the male dress code). There is at least one U.S. precedent in which a company dress code is given priority over gender identity protections, although since that time there has been a ruling in another state that likely supersedes it -- however, it opens the possibility for such a situation in Canada. Requiring a transsexed person to dress according to their biological sex can be a cause of severe anxiety and distress, and also violate their conditions of a medical transition process.

There is more.

When reparative therapy is used to attempt to "cure" gay and lesbian people of their same sex attraction, it is very often their gender expression that is targeted. It is a part of the discrimination that is levied against many Canadians, some of whom might not identify as trans or even LGBT in any way, but can still be subject to this kind of discrimination. For example, when waitress Stacey Fearnall was fired from her job after she shaved her head to raise money for breast cancer research, that was an objection to her expression of gender.

And with growing attempts by anti-gay/anti-trans individuals and groups to separate characteristic identity from behaviour (i.e. "I don't hate him because he's gay, I hate him because he is shacked up with or married to a man," or "It's not the fact that she's transsexual that offends me but the fact that she dresses like a woman") in order to create a back door in human rights protections, it is prudent to clearly close that potential escape hatch.

Gender expression refers to the way a person expresses their gender, in terms of roles, physical characteristics, mannerisms and dress. The term has been used in legal arenas for at least a decade, and is discussed most notably in the Yogyakarta Principles, a statement on human rights developed by the United Nations, which Canada helped develop for use worldwide.

Dropping a term from legislation does not mean that courts will be required to consider that characteristic excluded, it will simply mean that it will be up to the courts to interpret -- which is currently the status quo. It will however make it more difficult to pass a gender expression -only bill later.

Undue hardship

Human rights legislation already provides a mechanism by which conflicting rights are balanced. Rights are granted up to the limit of undue hardship. This has been an equitable way to balance the rights of individuals with the freedoms of their employers and providers. A special limitation on specifically transsexual and/or transgender people once again singles people out for special additional exclusions.

What now?

Currently, the proposed changes are merely proposed, and sight-unseen. We don't know yet what the proposed (let alone the eventually accepted) definition will be, and what ramifications it will have for Bill C-279. For this reason -- and in the interest of avoiding schism -- I am not actively opposing the bill, for the moment. In some ways, I'm still hoping that I'm wrong, and that there's an equitable path forward. I'm also willing to work with or provide feedback for those crafting a definition (yes, I can do these things in confidence if needed). But it will take some convincing.

In the meantime, I await Wednesday's vote and news about whether the bill will proceed to committee stage.

(Crossposted to The Bilerico Project and Dented Blue Mercedes)

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