Tag: Protections to Transgender

June is Pride Month, when we celebrate sexual diversity and gender variance in the context of gains made by the Lesbian Gay Bisexual and Transgender (LGBT) communities. It is thus fitting that the Canadian Senate last week passed Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code to protect gender identity and gender expression.

Gender identity is broadly defined as one’s personal experience of their own sex, their internal sense of being male, female, a combination thereof or neither. Gender expression is the public expression of that identity, through markers such as clothing, speech and body language.

Now that better acceptance and legal protection has been secured, after years of advocacy, for the LGB communities, issues facing the T(ransgender) community have moved to the fore. Issues of gender identity and expression have recently featured prominently in the news, particularly south of the border with the introduction of “bathroom bills” that restrict use of a washroom to one’s biological sex. These issues have highlighted the discrimination, isolation and violence faced on a daily basis by trans and gender diverse people.

To address the vulnerability of the trans/gender diverse community, the Bill amends:

1. sections 2 and 3 of the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination; and

2. subsections 318(4) and 718.2(a)(i) of the Criminal Code to include gender identity and expression in the definition of an identifiably group and to extend the protection of hate propaganda to persons who are distinguished by gender identity and gender expression. Evidence that violence or hate was aimed specifically against transgender or other gender diverse persons on account of that identity or expression will now constitute an aggravating circumstance court can take into account when imposing a sentence for the crime.

Bill C-16 began life in 2005 as a Private Members Bill. After languishing for such a long period of time, it was taken up by the current federal Liberal government as part of the government’s legislative agenda to facilitate its passage. Even still, approval by the Senate was not a sure thing in the face of criticism that the amendments infringed on freedom of expression and/or promoted a lifestyle not every Canadian supported.

The argument that protecting minority groups infringes on free speech is often used when those rights are new to our social fabric. Once established, we wonder why there was ever an issue. Indeed, the protections afforded by Bill C-16, in the view of this author, serve to promote freedom  of (gender and sexual) expression. In moving to better protect gender diversity and expression Canada again proves its global leadership in the promotion of human rights and dignity. It will make celebration of sexuality and diversity this year particularly sweet.

Happy Pride!

Marc Kemerer practices fertility and reproductive law at Devry Smith Frank LLP