10 March 2015
Hon. Grant Mitchell: Honourable senators, I wish to thank Senator Runciman for a number of things: one, for outlining this bill and its amendments very clearly. I hadn't ever before sat on a committee that he chaired, and I would like to recognize his expertise as a chair and the dignity and expertise with which he conducted what was a difficult study on a difficult and contentious issue that at times certainly raised emotions.
I also would like to thank all of my colleagues on both sides in the committee for the importance with which they approached this issue. Clearly, it reflects on the Canadian set of values. The rights, inclusion and acceptance of all people are important, and the intensity of that debate I think was very clear. Everybody involved, I think, came from a place of great sincerity and great effort to make this bill an important step in improving the recognition of significant rights of a significant group of Canadians.
The fact is — I've said this many times and it's been said many times — that gender identity addresses very serious issues that are felt by the transgender community. Transgender people, in their lives, experience, almost to a person, a great deal of abuse, both physical and verbal. Particularly in youth, but throughout the life of a transgender person, the likelihood of suicide is greatly elevated over others in their comparative demographics, others in the population. They are often denied housing. They are often denied jobs. Despite the fact that they are well educated — ahead of the average levels of education of Canadians as a whole — they are underpaid significantly compared with the pay that is received by Canadians of commensurate education and experience.
It has been a remarkable experience for me to have undertaken this and to have met many people in the trans community and their parents and relatives. It shouldn't be surprising, but probably to many of us it is, that most families, most people, in one way or another, know or are actually related to somebody who is a transgender person. I was very moved by many of the personal stories that I encountered, as I know others have been as well.
We had Jesse Thompson, a young transgender man who fought the fight under provincial legislation in Ontario so that he could join his fellow hockey players in the locker room. He was a very articulate witness and reminded me in many ways of our three sons, who played sports and hung out with their buddies. That's what Jesse Thompson wanted to be able to do. That's what that legislation in Ontario ultimately allowed him to do.
I was particularly moved as well by the story of a mother, Wendy Kauffman from Alberta, Edmonton, and their trans son, Wren Kauffman, 12 years old — a remarkably articulate young boy and a wonderful mother and father who so deeply love this child — and their experience of what that child was going through. They have supported Wren in such a way that he has become so well adjusted and articulate. Support was underlined in their relationship with their son. Support is underlined in all of the studies; namely, those who are transgender and who are supported adjust so much better and have less likelihood of trauma, depression and suicide and are then able to contribute so much more productively as fully-fledged, equal Canadians in our society and in our economy. It has been a remarkable experience for that reason.
To this point the bill has accomplished a great deal — not quite enough, but a great deal. While it has taken a long time, it certainly has provided a number of very important and, if I can use the word, teachable moments. It isn't enough to have a piece of legislation. Canadian society needs to open up and understand what these rights mean and who trans people really are in our society. I believe that a great deal of progress has been made over the last several years, coincidentally but perhaps causally as well because of the debate that has surrounded this bill.
I think it's very important to note — and congratulations to Senator Nancy Ruth — that in the process of refining this bill, we have accepted, as a country, sex into our Criminal Code. That was a breakthrough, and that certainly recommends very strongly the one set of amendments that Senator Runciman mentioned and that the report mentions.
The second amendment that we're accepting is the change in the definition. Michael Crystal was an excellent witness, a lawyer who clearly has a well-trained legal mind, who argued that, amongst other things, to define "gender identity," which would then be the only identifiable characteristic that is defined in these pieces of legislation, would be in itself discriminatory and inappropriate. That's not contentious, either.
What is contentious is another amendment, and Senator Runciman alluded to the fact that it is.
However, as another great accomplishment of this bill, when you count up all the stages between the House of Commons and the Senate, we're actually seven eighths of the way through the two houses of Parliament of Canada, recognizing in two of the most significant pieces of legislation in this country, the Canadian Human Rights Act and the Criminal Code, gender identity as an identifiable characteristic. That is not insignificant. It would be nice if we could get to the eighth step and pass it into law, but two houses have gone seven eighths of the way, and that is not insignificant.
Unfortunately, and I say this with a good deal of reticence, the amendment to the legislation that would allow discrimination in locker rooms or in certain kinds of facilities, federal facilities, shelters, and so on, and washrooms, really is a contradiction of everything that that bill is designed to establish. While the recognition of gender identity in itself is a huge recognition, the impact at both a practical and an emotional level for people in the trans community and for people who are concerned deeply about this issue, and on their behalf, is so powerful as to really take away the ultimate benefit in recognizing trans rights, gender rights. This amendment simply takes away the value and the impact of the bill that it would otherwise have. It's very unfortunate. For that reason, I would like to amend this report.
I will get to an amendment in a moment, but I'd just like to explain why this amendment, 2.1 I'll refer to it as, the one that allows, I would argue, discrimination against transgendered people in the use of washrooms and locker rooms in certain facilities, isn't appropriate and why it doesn't work.
First, it's inherently discriminatory. Trans people are who they are. A trans man believes in their heart of hearts as deeply as any of us believes about our gender that they are a man. A trans woman believes, as deeply as any of us believes in our gender, that they are a woman and that it would be inappropriate for them to use a washroom that does not correspond to their gender identity. So it is inherently discriminatory on the one hand to say, "We recognize your gender identity" while, on the other hand, not allowing it to be expressed in one of the most personal of ways that one could imagine. That is in the use of washrooms or locker rooms.
The second point is that it really is difficult to understand how it will actually work. There was a very powerful picture in a newspaper article of, clearly, a woman, a transwoman. It turned out she was a transwoman. I don't mean to be patronizing, but she was very attractive. If you walked by her on the street, you would not for a moment believe that she was anything other than a woman. That is who she is. She's pictured in a men's washroom with urinals across the way. That transwoman, under the force of this amendment, would have to use that men's washroom. How would that work?
The flip side is, of course, that transmen — and there could be transmen in this building; there probably are; we don't even know — with a full beard, a three-piece suit, well-muscled, every bit as masculine as any man in this room today, would be forced to use a women's washroom. How would women who are in there respond to that? They would have no idea. That person is a man. That's who that person is, and they would see that. How would we monitor the use of washrooms? How would it be that we could ever actually apply this particular amendment in any way, shape or form?
The third point is that, in a way, it comes from a place where there is a concern that, somehow, somebody in a washroom, perhaps a young child, might be approached or might see something inappropriate, if I can use those words. It's difficult to find the words. But it's really piling on, legislative piling on. We already have legislation that covers inappropriate activity by whomever in a washroom or any other public facility, or any other private facility, for that matter. We don't need this piece of legislation to provide greater protection. We already have it in the Criminal Code.
Not only that, but, if you look at wherever this particular legislation has been applied provincially — and there are at least five provinces — there have been no problems whatsoever. Schools in my province of Alberta have worked out policies that have worked just fine and that allow transgender people and non-transgender people absolute access to these facilities without a problem.
We need to understand that there isn't something that needs to be protected from. In fact, quite often and usually, if not always, it is the trans people who do not want to be exposed in any inadvertent way. They are the ones who bear the brunt of the abuse so often.
Senator Jaffer made a very powerful point that implicit in this amendment is, somehow, that the transperson would be the aggressor, whereas that's almost never the case. In jurisdictions where these rights have been extended legally, as I've said, there just isn't evidence of that being the case.
I use an example, a parallel argument to the argument that was used so frequently against gun control. It was said that law-abiding gun owners shouldn't be held accountable for the activities or actions of non-law-abiding gun owners. But, in effect, that's what this bill will do. It will hold accountable law-abiding transgender people for the potential — although not often realized, that we know of — inappropriate actions in a bathroom or a locker room by somebody who might not even be transgender. It could just be somebody who has decided that they will infiltrate a locker room inappropriately.
It seems to me that, if you make the argument in gun control and can't hold somebody who isn't responsible accountable for the unlawful activities of somebody else, you can't make the argument in the case of this amendment, which is exactly what this amendment essentially amounts to.
One witness we had was a witness from an Aboriginal women's shelter. Her concern was that men might be allowed in. Transwomen, who, she would argue, in some senses, were men, would be allowed into that shelter and, not necessarily physically, but just by being there —
The Hon. the Speaker: Senator Mitchell, do you need more time? Is five more minutes granted to Senator Mitchell?
Hon. Senators: Agreed.
The Hon. the Speaker: Five more minutes.
Senator Mitchell: Thank you.
They might pose a threat. Again, in jurisdictions where these rights have been extended provincially, there haven't been issues like that that can't be dealt with in policy. In fact, if we actually recognize transgender rights, policies will begin to flow from that even more aggressively and more will be done. I think we'll find, as we did in the case of gay marriage, that, once it was done, we just made a lot more people happy and society was only better for it.
I think that this piece of legislation almost gets there. It's almost exactly right. It does a great deal in recognizing transgender rights in those two pieces of legislation. On the one hand, it gives that and, on the other hand, it just takes all of that away with this amendment that really won't work, that really is discriminatory, and that really is — to use the oft-used statement — a solution looking for a problem that doesn't, in fact, exist. We are at a moment where we can literally make rights history in this country and, again, send around the world the message of what Canadians are in the sense of our acceptance, our understanding and our inclusiveness and reflect deeply held Canadian values.
If we could have a vote, even today, against that amendment, it would be — I will offer you the opportunity and the vehicle by which to do that — by moving a motion that would amend this report.
Hon. Grant Mitchell: Therefore, honourable senators, I move, with respect to the Twenty-fourth Report of the Standing Senate Committee on Legal and Constitutional Affairs:
That the Twenty-fourth Report of the Standing Senate Committee on Legal and Constitutional Affairs be not now adopted, but that it be amended by deleting amendment No. 3.
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