Transgender Rights in Canada: Another Letdown Looms

In Canada, in fact all around the world, transgender individuals face some of the highest risks of human rights violations of any sector of society. By any measure, the levels of violence, discrimination and other abuses they face are shockingly high.

It is a grave human rights problem in need of attention. More needs to be done to assure and uphold the equality rights of transgender individuals, and protect them from discrimination. More also needs to be done to keep them safe from hateful acts of violence.

For ten years there have been efforts in Parliament to do just that; but a decade later it remains stalled.

Meanwhile the need is urgent. Just consider this handful of statistics. A recent nationwide survey revealed that 74% of transgender youth experience verbal harassment at school and 37% are subject to physical violence. Transgender Ontarians face three times the national unemployment rate; and 43% of transgender Ontarians have attempted suicide at least once.

There is a need for action on many fronts, including school programs, public education, health care and social services. It also, however, necessitates turning to the legal system. We need laws and legal enforcement to ensure that the human rights of transgender people everywhere are upheld and protected.

Attempts to do just that have been winding their way through the Canadian law-making process in the form of various private members bills, since 2005.

The most recent attempt, Bill C-279, is a clear and simple way forward. If passed into law the Bill would amend the Canadian Human Rights Act to include ‘gender identity’ as one of the prohibited grounds of discrimination and would change the Criminal Code to similarly add gender identity under Canada’s hate crimes laws. In a few short paragraphs Bill C-279 would strengthen equality rights and provide greater protection from hateful attacks for transgender individuals.

But this commendable and sorely-needed human rights Bill has been before Parliament for close to four years, having been introduced by British Columbia MP Randall Garrison back in September 2011, and is still not law. And Bill C-279 is not the first attempt. Going back ten years, before C-279 there have been Bills C-392, 326, 494, 389 and 276. Ten years, six attempts, to fill a glaring human rights gap in Canadian law; and still not there.

Meanwhile, 8 provinces and territories (Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, Prince Edward Island, Newfoundland and the Northwest Territories) have amended their provincial human rights codes to add gender identity. That notable progress stands in obvious disappointing contrast to a decade of stalling and delays federally.

Bill C-279 has come tantalizingly close but seems doomed to disappear (like its many predecessors) when we head into a federal election later this year.

Remarkably, even though Prime Minister Harper and his government, officially, have opposed Bill C-279, it was not a whipped vote in the House of Commons and 18 government MPs (including four Ministers at the time) voted in favour of its adoption. That was sufficient to ensure it passed the House in March 2013, eighteen months after it was introduced.

But two years later it is still in the Senate, where it has faced at least one determined opponent in Senator Donald Plett. It was referred to the Senate’s Legal and Constitutional Affairs Committee for review in June 2014. And finally, at the stage of clause-by-clause review of the Bill in late February 2015, Senator Plett proceeded with an amendment he had long been expected to introduce.

Concerned, apparently, that these changes would increase the likelihood that men might pretend to be transgender and dress as women so that they could gain access to public washrooms and sexually assault women, he brought forward what has colloquially come to be known as the “bathroom amendment”. The change means that the new guarantee of non-discrimination on the grounds of gender identity would not extend to ”any service, facility, accommodation or premises that is restricted to one sex only — such as a correctional facility, crisis counselling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room.”

Why Senator Plett imagines that a man intent on committing sexual assault in a women’s washroom would only do so if he felt confident that the Canadian Human Rights Act would protect his right to dress as a woman is, to say the least, unclear. Meanwhile the Senator has dismissed the real fears and violence that transgender individuals face every single day across Canada; everywhere, not just in bathrooms and changing rooms.

Ironically, extraordinarily and very worryingly, the change adds discrimination to an amendment the very purpose of which is to prohibit discrimination.

The amendment was adopted by the Senate Committee, with a majority of government Senators. The revised Bill now awaits Third Reading in the Senate.

There were two other changes made to the Bill at the Committee stage. One was an important housekeeping change to ensure that Bill C-279’s changes to the Criminal Code hate crimes provisions would be consistent with recent amendments that were part of Bill C-13, the Protecting Canadians from On Line Crime Act. One of the provisions in Bill C-13, which became law at the end of 2014, adds “sex” to the Criminal Code hate crimes provisions. Bill C-279 had to be revised to stay current with that change. The other change, which was not considered controversial, was to delete a provision that had offered a definition of gender identity.

If any of these changes are included in the final version of the Bill adopted at Third Reading in the Senate that means the Bill is no longer the same version that was adopted by the House of Commons and would have to return to the House to begin its journey again. There is no way that would be completed before the 2015 election, meaning Bill C-279 would die with this session of Parliament.

As the sitting days left in this session of Parliament dwindle down, it is not at all clear whether Bill C-279, with or without its bathroom amendment, will even make it out of the Senate and back to the House.

What is clear is that transgender individuals in this country appear to be on the verge of being let down once again. There have been committed and eloquent champions of their rights, in both the House and the Senate. But there have been many opponents and others who simply have not cared enough to make this happen in time and with integrity.

It is a struggle that must continue nevertheless.

That means pushing, now, for the bathroom amendment to be removed from the Bill.

That means seeking commitments from candidates and leaders in the 2015 election that they would be prepared to bring the issue of transgender rights back to the next Parliament and ensure a strong and non-discriminatory version of Bill C-279 does become law, and quickly.

The stalling, the misconceptions and the insensitivity shown by many parliamentarians over the four years of debate about C-279 are unworthy of what Canada stands for when it comes to human rights. It is time to turn that around.


  1. “Bathroom Amendment” as an obstacle to actually addressing the human rights issue. Very informative, Alex: The Bathroom Amendment has been proposed to cover those who were intent on sexually assaulting women in bathrooms, etc., with the knowledge that by dressing as women they would be protected by the Human Rights Act. Bizarre. But, what I find is that spinning and twisting real issues goes on with alarming regularity. The deceits are accepted regardless of how outrageous. Thanks for bringing this forward, Alex.

  2. This topic requires a discussion with significantly more nuance than this polemical article.

    The concern with the original legislation is that it will become basically impossible to restrict people from entering the bathroom (or other sex specific institution) of their choice. I don’t know what experience the author has with transgender people, but reducing what a transgender woman looks like to a man dressing like a lady is embarassing. Transgender includes a spectrum of gender identities. There are people with a female gender who are male sex and dress like males.

    Personally, as a father of two young girls, I support the “bathroom” amendment. I’m not afraid of the ridiculous example of a man assaulting women with the expectation they could rely on the human rights act. My concern would be with a man who lingers in a woman’s washroom where the institution would be powerless to remove him when he states that his gender is female.

    The difficulty with transgender law is the ethereal nature of gender compared to the solidity of sex. When the two diverge, you have one characteristic that can be scientifically determined and one that cannot, resulting in difficult questions. What happens if a male is convicted of sexual assault against a female and convincingly represents that his gender is female? Would he be placed in a female prison? Is this acceptable?

    These are questions that I do not know the answer to. But I do know that articles such as this, which attempt to shut down any discussion by presenting one side as right and the other as ridiculous, will not contribute to a resolution of these issues.

  3. The other side of this discussion is founded on outlandish hypotheticals, and in that sense is ridiculous.

    Matt — where do you get “powerless to remove him”? Speaking as a gay, I would like to live in the world where adding a term to a Human Rights Act renders people “powerless” to discriminate against me. In fact people still somehow manage to shout “faggot” at me on the street when I am holding a partner’s hand. I can’t imagine how they do it.

    If someone is “lingering” in a washroom and there is a complaint, they may well be removed whatever the legislation says. Afterward, if the removed person can prove that the removal was discriminatory, eg because they appeared to be a trans-woman as opposed to a cis-woman, then the institution risks being dinged with a complaint, and rightly so — that’s the point of the bill. If the person was committing sexual harassment in the bathroom, their gender, sex, and gender identity don’t matter. So I am at a loss to see how any of your comments relate to the amendment in question.

    Currently, queer people convicted of sexual assault are placed in prisons associated with their gender — so yes, it is acceptable for someone convicted of sexual assault to be imprisoned with people of their victim’s gender. Note that sexual assault is also perpetrated in prison by people acting outside of their usual sexuality.

    As a father of two young girls, the best way to ensure their happiness, rather than shielding them from the phantom threats of sexual deviants hiding in the bushes, might be to refrain from exposing them to such fears, and to foster a tolerance for and comfort with people perceived to be transwomen in women’s washrooms. There is enough real sexual violence in the world — generally perpetrated by acquaintances and family — for them to worry about.

  4. Are Family Restrooms posing a problem to anyone’s safety? I believe that a single adult whether male or female can accompany a/an child/enfant into these public facilities, there could be devious scenarios to this as well can there not? Or does the word “family” remove the deviants from the picture? If safety is an issue then perhaps surveillance cameras or washroom attendants should be mandatory for all washroom facilities.