Transgender Miss Universe contestant Jenna Talackova made the news recently when she was disqualified because she was not “naturally born” female. The owner of the Miss Universe pageant, businessman Donald Trump, reversed the decision when faced with a possible discrimination claim.
According to gay rights advocacy group GLAAD, the Miss Universe pageant organizers are now changing its rules and will allow transgender women to take part in all of its competitions starting in 2013.
On this side of the border, private member’s Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression) was introduced and received first reading in Parliament on September 21, 2011, and is inching its way to second reading. The Bill aims to amend the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds of discrimination. The Bill will also amend the Criminal Code to include gender identity and gender expression as distinguishing characteristics protected under section 318(4) (hate propaganda) and as aggravating factors to be taken into consideration under section 718. 2(a)(i) at the time of sentencing.
Currently, the Canadian Human Rights Act prohibits discrimination based on a person’s sex and sexual orientation, among other grounds. However, the prohibited ground of sex and sexual orientation is considered by advocacy groups as inadequate to clearly inform the public at large that unreasonable discrimination on the basis of gender identity and gender expression is prohibited; hence, the creation of Bill C-279.
Many members of Parliament opposed to the Bill find the language of the Bill too vague (the Bill does not include definitions of gender identity and gender expression), while others consider that the prohibited ground of sex and sexual orientation currently in the Act and the Criminal Code provisions on hate propaganda are sufficient to protect transsexual and transgendered Canadians. In addition to it being a private member’s Bill, these are some of the reasons why the Bill is slowly plowing through.
In interpreting and applying this act, the Canadian Human Rights Tribunal has already accepted and considered several complaints brought by transsexuals under the ground of “sex”. In fact, the ground of sex in anti-discrimination laws is interpreted broadly and has evolved over the years. It is now understood to cover discrimination complaints based not just on sex but also on gender attributes, pregnancy, childbirth and, more recently, transsexualism. Therefore, for those complaints brought by transsexuals, the tribunal has used the existing grounds already contained in the act.
It is important to note that the writers of the Bill do not think gender identity and gender expression needs to be defined.
What is gender identity and gender expression?
GLAAD offers the following definitions:
Gender identity. One’s internal, personal sense of being a man or a woman (or a boy or a girl). For transgender people, their birth-assigned sex and their own internal sense of gender identity do not match.
Gender expression. An external manifestation of one’s gender identity, usually expressed through “masculine,” “feminine” or gender-variant behavior, clothing, haircut, voice or body characteristics. Typically, transgender people seek to make their gender expression match their gender identity, rather than their birth-assigned sex.
The group also offers other transgender terminology on its website.
To put it simply, gender identity is opposed to gender at birth. For example, gender at birth can refer to individuals whose birth sex is male, but who have an innate sense of being female. It also refers to those who are inter-sexed, or are born with parts of both male and female anatomy. These individuals may experience more complex gender identification, and, unfortunately, can face discrimination and harassment on a daily basis. For example, persons who are going through gender reassignment, requiring they live in the sex they are transitioning to, often encounter discrimination whey they use public washrooms.
During the debate on the Bill, another Member of Parliament, Hon. Irwin Cotler (Mount Royal, Lib.) brought the struggles of transgendered using statistics:
The Ontario Human Rights Commission has noted:
There are, arguably, few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Trans-phobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.
The statistics on trans-phobia, which my colleague from Esquimalt—Juan de Fuca pointed out in his remarks today, speak for themselves. Indeed, 95% of transgendered students feel unsafe at school and 9 out of 10 have been verbally harassed due to their gender expression, according to Egale Canada.
If enacted, amendments will come into force 30 days after the day on which it receives royal assent.
This is one of several failed attempts to protect persons from discrimination by including gender identity as a protected ground under the Canadian Human Rights Act and Criminal Code. Simon Fodden wrote about the last attempt here. We hope this time it succeeds.
Gender identity and expression are very complex issues that many do not understand, and it would not hurt too explicitly state it in the law to help organizations and individuals avoid unreasonable discrimination and put measures in place to support transgendered Canadians, affirming their identity and acknowledging their struggles.