Why Bill C-279 has to do with everything but trans rights.

By Laura Shepherd

Bewilderment begat outrage in the blink of an eye this week when conservative Senator Don Plett introduced discriminatory amendments to a Bill intended to outlaw discrimination based on ‘gender identity’.

What Happened?

Manitoba Senator Don Plett introduced two amendments during clause-by-clause debate of Bill C-279, a private member’s bill passed by the House of Commons three years ago, but called for debate only this week before the Senate Legal and Constitutional Affairs Committee.

Plett’s amendments would ostensibly ban trans, non-binary and gender variant Canadians from changing rooms, public washrooms, emergency shelters and similar traditionally binary-gendered spaces. The Manitoba Conservative tacked these caveats on to a Bill amending the Canadian Human Rights Act to include ‘gender identity’ as a prohibited ground of discrimination and the hate crime and propaganda sections of the Criminal Code of Canada to include ‘gender identity’ as grounds specified for protection.

Opposition members of the Committee questioned Plett’s intent, called out his discrimination of those the Bill is trying to protect, and chastised him roundly for using the tired “bathroom defense.”

In case you haven’t heard the trope – it goes something like this:

Trans women are men who never have to pee but go into women’s rooms anyway to look up skirts and generally make women feel uncomfortable. It’s a muddle-headed reasoning, not unlike asking “Does the Pope shit in the woods?”

The unelected senior parliamentarian is, sadly, mistaking trans women for predators who may or may not actually exist. He’s evidently afraid of monsters under his bed, which is understandable for someone with a sheltered life - It is a pretty wild country once you drag your entitled ass out of the National Capital District.

We – trans women - are reputedly really scary people, something I really can’t be objective about myself, but I do know the looks I get. All I know is, sometimes we really, really need to pee. Whether I look like hell has nothing to do with it, and I don’t care who or how many other people have to relieve themselves in the same general space at the same approximate time.

I’m a patient person, but some things just can’t wait.

What the Amendments Mean

In theory, the law would only apply to such facilities in the federal jurisdiction. Transition homes, for example, are clearly within the provincial jurisdiction, and are therefore governed by provincial rather than federal human rights codes. Similarly, most recreational facilities featuring locker and change rooms are municipally operated, again, under provincial authority. The amendments would have effect on Department of National Defense property, for example.

In practice, the amended Bill would almost certainly be struck down by the courts, assuming for one fantastical moment, that by some Parliamentary sleight-of-hand bizarre even by Ottawa standards, the amended Bill actually comes to a final vote before the House prorogues in advance of this fall’s scheduled federal election. Or coup d’etat. Whichever comes first.

What Happens Next?

The conservative majority in the Senate is sufficient to pass the Bill in Third Reading. Amendments adopted at Committee in the Senate are reviewed in the “report” phase that lies between the Committee stage and the final vote (so-called “Third Reading”). Opposition parties in the Senate are expected to oppose the amendments, and the Bill may not return to the House.

If it does return to the House, the Commons could remove the amendments, and return the Bill as originally passed to the Senate – a cumbersome procedure unlikely to take place within the ever-closing window of parliamentary business. Parliament is expected to break for the summer in June, with an election set for October, leaving roughly three months to dot the i’s and cross the t’s on the business of the Commons and the Senate. Things will be left undone.

As a private member’s bill, introduced by NDP MP Randall Garrison (Esquimalt-Juan de Fuca), Bill C-279 currently sits well down a long list of legislation to be called for final vote on the Order Papers– a document updated daily when Parliament is sitting, listing the full agenda of pending business and its scheduled dates of debate.

What is Really Going On?

Trans Canadians are a political football at the moment. Conveniently for the governing Conservatives, we are a small and often hidden minority subject to widespread misunderstanding and, frankly, ridicule. That’s convenient if your strategy is to divide people to further your political ambitions. (Politicians go to Ottawa to further their political ambitions. Governing us, it turns out, is more the excuse than the raison d’etre.) The Conservatives under Stephen Harper have divided Canadians - by region , by belief, by countless social and economic variables – into usses and thems, in the hope that Canadians will believe their depiction of the country, and return the Conservatives to power.

In the last Parliament, a similar private member’s bill died on the Order Papers. Debate of that Bill removed the ‘gender expression’ clause that originally accompanied ‘gender identity’ in the Bill’s wording. MP Garrison’s current Bill, including only the phrase ‘gender identity’, will, in all likelihood, suffer a similar fate.

The reality is, if the current majority Government intended to extend explicit human rights protection to trans, non-binary and gender variant Canadians, they would introduce their own government Bill. That efforts in the federal realm to extend that protection have come, in two successive parliaments, from NDP members sitting in opposition, tells the harsh truth of the matter: neither the Liberals nor the Conservatives want to take the political risk of alienating cisgender supporters, whose assumptions and prejudices are politically inexpedient to challenge, by extending protection to transgender Canadians, a group so small as to make no electoral difference.

Ironically, the Human Rights Act is in some quarters interpreted as already extending protection to trans-identified people. Federal public servants have been supported in workplace transitions, for example, since at least the beginning of the century.

Should the opposition defeat the amended Bill in the Senate, the governing party will claim the opposition sold out on trans rights. Should the opposition hold their noses and pass the Bill, it will return to the House, which is unlikely to preserve the amendments, and the Bill will die a prolonged death on the Order Papers, either by design or neglect.

When trans rights ceases to be a trans issue, when it is regarded as a rights issue –when the body politic moves to the view that failing to explicitly offer trans, non-binary and gender variant Canadians equal protection under the law threatens everyone’s rights, the law will change.

Resisting the strategy that has divided Canadians for a decade, and exacerbated real gaps among us, is becoming the imperative for Canadians cis and trans alike. If ever there was a time for us to work as allies, it must be now. Far from being a glittery fringe on the margins of Canadian society, trans Canadians and their allies find themselves the canaries in our national coal mine. Unity or Divisiveness. Which we choose in October will shape us for years to come.

Recap:

• The original Bills attempted to extend protection under the federal Human Rights Act and coverage under the hate crimes and propaganda sections of the Criminal Code to Canadians based on “gender identity” and “gender expression”.

• In both parliaments in which a similar bill has been introduced, the phrase “gender expression” has been lost to compromise in seeking passage through the House of Commons, reflecting an implicit bias by parliamentarians toward binary-identified as opposed to non-binary identified trans people, those with fixed rather than fluid identities and expressions, and those who seek or have surgery/ies to address gender dysphoria.

• While present in legislation, lost in public and media debate emphasizing the Human Rights protection clauses of the bill are the important clauses which specify “gender identity” (and originally, “gender expression”) as included grounds in hate crime and propaganda sections of the Criminal Code. This measure can be used to prosecute sustained individual and group harassment, and can impose additionally penalty on perpetrators of violence against people who are not cis.

• As has occurred with the ‘gender expression’ clauses of legislation, elements like hate crimes protection can be and sometimes are lost to the political negotiations and compromises that facilitate passage of legislation.

• Supporting full protection of the law for non-binary, trans and gender variant Canadians means supporting both Humans Rights and Criminal Code provisions for both ‘gender identity’ and ‘gender expression’. Less is simply playing one element off against another, and we all know rights aren’t bargaining chips. But when some rights are not universal, all rights are reduced to bargaining chips.