Bill C-16 — “An Act to amend the Canadian Human Rights Act and the Criminal Code” — will have its third reading in the Senate on Tuesday and is on its way to becoming law. Newly minted federal Conservative leader Andrew Scheer voted against the bill last fall, along with 39 of his party colleagues. But what is Bill C-16? And why is it so controversial? Here’s a primer on the legislation.
It’s a short bill that seeks to prevent discrimination against trans people in federally regulated workplaces and services (such as banks, airports, and railways). It adds language to the Human Rights Act and to the Criminal Code, stipulating that Canadians should not face prejudice or discrimination on the basis of their “gender identity” or “gender expression.”
“Gender identity” is defined by the Ontario Human Rights Commission (as it will be federally) as the way a person experiences gender: “It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum,” according to the OHRC. “Gender expression” encompasses the ways in which a person presents their gender publicly, including through “behaviour and outward appearances such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.”
Because trans people often experience discrimination, harassment, and abuse. In a 2011 survey, 74 per cent of Canadian transgender youth reported experiencing verbal harassment at school, and 37 per cent reported physical abuse, according to Egale Canada Human Rights Trust, a charity that advocates for LGBT rights.
The problem extends to the workplace, too: 18 per cent of trans Ontarians said they’d been turned down for a job for being trans, and 32 per cent said they were unsure whether they were turned down for that reason, according to the research organization Trans PULSE. Thirteen per cent of respondents said they were fired from a job for being trans; another 15 per cent were fired, but were unsure whether it was because they were trans.
“It’s often quite obvious to trans people what is going on,” says Greta Bauer, an epidemiology and biostatistics professor at Western University, and a researcher on the Trans PULSE study. “The potential employer who all but promises the position based on your resume who suddenly changes tune when you walk in the room, or come out to them; the manager who stops sending clients to you after you transition, and then starts disciplinary action for reduced job performance, et cetera.”
In 2016, the Toronto Police Service reported that hate crimes against LGBTQ people made up 22 per cent of all hate crimes in the city the previous year.
“Amending the Criminal Code will not, on its own, put an end to hate-mongering, although we expect it will have some deterrent effect,” René Basque, president of the Canadian Bar Association, wrote in a letter to Bob Runciman, chair of the Senate standing committee on legal and constitutional affairs, which is examining the bill. “It will send an important signal to the transgender community that Canadians are committed to building a safer society for all.”
Trans PULSE estimates one in 200 people in Ontario is trans. Some advocates believe that figure will rise when trans people receive greater recognition and protections under law, as they will feel safer expressing their identities publicly. “After gender identity and gender expression were added to the Ontario Human Rights Code, the Ontario Human Rights Commission received a rise in reporting and requests for information,” writes Sandeep Prasad, executive director of Action Canada for Sexual Health and Rights. “A bill like C-16 empowers people to come forward.”
The acting secretary general of the Canadian Human Rights Commission stated in 2012 that transgender people were already implicitly protected under the Human Rights Act, but that including “gender identity” and “gender expression” in the Act would make that protection explicit.
If rights are only implicit in the law, that “becomes an access to justice problem for those who have neither the financial or other resources to litigate,” writes Siobhan O’Brien in an emailed statement on behalf of the Canadian Bar Association. “An explicit protection in the law publicly acknowledges rights, provides some deterrence for those who would discriminate or promote hate, and provides affirmation for transgender persons that their inclusion and safety are an important part of our vision for a more tolerant society.”