A controversial Private Member’s Bill coming to the Justice Committee in November is Bill C-279, An Act to provide gender identity and gender expression protection in the “Canada Human Rights Act” and in the “Criminal Code”. The sponsor of the Bill is the NDP’s British Columbia MP, Randall Garrison.
I voted against the Bill at Second Reading and spoke against a similar Bill introduced in the last Parliament. These are complicated and sensitive matters and my opposition to this Bill is based entirely upon legal analysis, not on any particular bias.
The flaw in Bill C-279 is that the terms “gender identity” and “gender expression” are not defined. This flaw is fatal in my view and has led to the misimpression that the Bill is aimed to provide protection to cross dressers and transsexuals. Although there may be some overlap between some of these terms and some of these groups, they are in fact quite separate and distinct.
As I understand it, the term “gender identity” refers to an individual’s inherent feelings of gender, which may or may not correspond to the sex assigned to them at birth. Meanwhile “gender expression” refers to how a person’s gender identity is communicated to others through many factors, such as behaviour, dress, speech and mannerisms.
Regarding transsexuals (people who have had or are in the process of changing their gender), it is my understanding that such individuals already enjoy Human Rights protection because “sex” has always been a prohibited ground of discrimination. Certainly, at all times, regardless of the stage of completion of gender reassignment, a person has an identifiable gender. Moreover, although a person interested in changing genders presumably is struggling with gender identity, not all people with gender identity issues have any interest in changing gender. The terms are separate and distinct.
Now, cross-dressing may be an expression of gender identity or gender expression or may be unrelated to either. Nothing precludes a non-transgender person from occasionally dressing up in drag to attend a theme party or event. The terms are simply not interchangeable.
Accordingly, the lack of definitions with respect to the terms creates a huge ambiguity as to who or what activities are to be protected and arguably is a fatal flaw.
But a more philosophical objection to the Bill is the attempt to expand “Human Rights Code” Protection beyond the traditional ascriptive criteria. Generally, the Code’s aim is to protect characteristics that are ascriptive rather than chosen. These are matters defined by birth and/or over which one has no control: race, national or ethnic origin, colour, age, sex, sexual orientation and disability all fall neatly into the category of ascriptive criteria. Admittedly, “religion, marital status, family status and pardoned conviction” are tricky because one does have considerable control over all of these matters.
One can debate whether gender identity and expression are chosen or ascribed. Regardless, another interesting term which currently and appropriately attracts Human Rights Code protection is “sexual orientation”. Although strictly speaking this term refers to which sex one is attracted to, it is arguable that an orientation is broad enough to include a variety of lifestyle choices and expressions.
All of which brings me back to my original proposition that I remain uncertain as to what any of these undefined terms really mean, and who and what activities are to be afforded protection. The lack of specific definitions to what are clearly not well understood terms, in my view, constitute a fatal flaw with respect to Bill C-279.