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Art Eggleton

The Hon. Art  Eggleton, P.C. Senator Art Eggleton has served the people of Canada and the city of Toronto in public office for over 35 years. He was appointed to the Senate on March 24, 2005, by the Rt Honourable Paul Martin and represents the province of Ontario.

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Second reading of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity)

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Statement made on 16 April 2013 by Senator Grant Mitchell

Hon. Grant Mitchell:

Honourable senators, it is with great pleasure and pride that I rise to support this bill. We Canadians have in the past consistently been able to distinguish ourselves in the pantheon of human rights, equality and anti-discrimination leadership. Unfortunately, there is always a new frontier that needs to be fought and opened up in equality rights. Today, with Bill C-279, we address, confront and hopefully begin to open up yet another frontier. We have done much, and now we have the chance to do more.

One of the first bills that I worked on when I came to the Senate was the gay marriage bill. To this day, I believe it was one of the most interesting and significant bills that I have ever worked on, and one of the most significant things — perhaps the best thing — that I have ever done in politics. It was immensely moving the day that we passed that bill. Once again, we had established Canada as a leader in this world of rights, equality and justice in a way for which people around the world envy us for what we have here and, sometimes, for what we take for granted.

I remember a kind of a funny story, and I will share it with honourable senators. Of course, it was Prime Minister Paul Martin who launched the initiative to pass the gay marriage bill and legalize gay marriage. He was aided a great deal in that effort by Scott Brison, a Member of Parliament from Nova Scotia who happens to be gay. Scott sat just behind and beside the Prime Minister. After weeks and hours and hours of fight, debate and exhaustion, the bill was finally passed. Prime Minister Martin turned to Scott Brison and said "Scott, you had better darn well get married." Sure enough, Scott did get married. I do not know if it was months later or several years later. I was not there, but it was a lovely, wonderful event with a couple of prime ministers and former prime ministers, and premiers and former premiers. It was quintessentially Canadian. Since that time, my wife and I have been able to go to two marriages of gay couples. Again, they were moving, loving, understanding, warm and wonderful events that I think captured the very essence of what we are as Canadians.

Now we have the chance to distinguish ourselves again with Bill C-279, which is the bill that addresses transgender rights and gender identity. So many of us do not fully understand the kind of lives that transgendered people have to live in our country: the discrimination, the hate, the violence — often profound violence — that they are subjected to, and the alienation. In this bill we are simply being asked to help our neighbours, some of our colleagues, and some of our family members. We are asked to help them and give them some respite and acceptance, and to elevate the importance of their issues. They are asking for some protection, so they can live more protected, fulfilled and safer lives.

This bill is specifically designed to do two things. First, it will amend the Canadian Human Rights Act to specify gender identity as a fundamental right and basis for defining discrimination. Second, it will amend the hate crimes section of the Criminal Code to include gender identity as a distinguishing characteristic in defining hate crimes under section 318, and also as aggravating circumstances to be taken into consideration at sentencing under section 718.2 of the Criminal Code.

Bill C-279 will rewrite the purpose of the Canadian Human Rights Act to include gender identity. I want to read the purpose of that act and add in gender identity, because it is such a powerful statement about fundamental Canadian values of equality and justice.

The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, [gender identity,] marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

Honourable senators, this change precipitated by Bill C-279 therefore hinges on the concept of gender identity, which it clearly defines:

... "gender identity" means, in respect of an individual, the individual's deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

Let me take this further. There is a good deal of confusion about this concept of gender identity and the implications of gender identity, though in reality this concept is not all that complicated or complex; it is just not something that many of us are fully aware of.

All of us have a gender identity. The concept of gender identity in the context of rights and the context of this bill addresses the lives of people who suffer often profound discrimination and sometimes violent abuse because of their gender identity. This would include, among others, people who are transgender, transsexual, girls who are tomboys, and women who dress or present themselves in a more masculine fashion and vice versa for men.

This bill will undoubtedly have the greatest impact in protecting transgender and transsexual people, who are the focus of some of the worst discrimination and abuse suffered by the people who fall into our category of gender identity.

Who are transgender or transsexual people? I think many of us often think of transgender people as cross-dressers — men who dress as women and women who dress as men. This is probably one of the most frequent misconceptions. Cross-dressers can often be quite comfortable with their gender and their sexual orientation and simply enjoy dressing in a way that many would see as different or inconsistent with what many hold as social norms for their gender.

On the other hand, a transgender or transsexual person is someone who has moved from the gender assigned to them at birth to the one that they experience in their heart and soul. They dress accordingly, and this is not therefore cross-dressing. For some, being expected to wear clothes associated with their birth sex has always felt wrong, like forced cross-dressing.

For those who say this definition or concept is not reflected, it is reflected in a number of areas of definition, and one is as stated by the Canadian Psychological Association in October 2010:

The Canadian Psychological Association affirms that all adolescent and adult persons have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role. Moreover, all adolescent and adult persons have the right to free expression of their self-defined gender identity.

The Canadian Psychological Association opposes stereotyping, prejudice, and discrimination on the basis of chromosomal sex, genitalia, assigned birth sex, or initial gender role, or on the basis of a self-defined gender identity or the expression thereof in exercising all basic human rights.

A transgender person simply knows that they are of a gender different from the one assigned them at birth and as indicated by the physical and physiological features of their body. In fact, data from the Trans PULSE Project indicates that roughly 60 per cent of trans people are aware that their gender does not match their body before they reached the age of 10. Over 80 per cent have this deeply felt awareness prior to the age of 19. No one knows conclusively why this is the case; it just is.

Transgender and transsexual people do not make it up and they do not fake it. It is not a choice. Why would any people want to inflict upon themselves society's stigma and what follows from it by voluntarily becoming transgender? Those problems are alienation; profound lack of acceptance; fear of bullying, violence, rape and economic discrimination; discrimination in the workforce, housing and medical care; and unprecedented levels of suicide.

It seems to me that it really is unfair in some sense to question or judge something as personal and as profound as someone's appreciation of their own gender identity. Transgender and transsexual people hurt no one because of their gender identity, but they are hurt themselves relentlessly — psychologically and often seriously physically.

Oscar Wilde made a wonderful point that was quoted by MP Randall Garrison, who is the sponsor of this bill. I should point out that this bill follows on from the bill presented some years ago by Hedy Fry. Oscar Wilde's quote was: "Be yourself. Everyone else is taken."

This bill is a step toward allowing transgender people the chance to be themselves, to be, if not absolutely and immediately accepted as they are and as they should be, then certainly not rejected, discriminated against or subjected to violence or any number of other indignities because of it.

Why is it necessary? In some senses, what I have said to this point speaks for itself, but let me go into more detail. The Ontario Human Rights Commission has noted this in a way that summarizes the case that I will build:

There are, arguably, few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Transphobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.

While it is not always easy to tell if someone is transgender and how many transgender people there are, estimates are that in Canada there are from one in 1,000 to one in 200 people who would consider themselves to be transgender. That is somewhere between 34,000 and 170,000 people. That range is not an insignificant number. However, even if it were far fewer, Canadians know it is in our DNA that everyone has a right to acceptance, protection and safety so that harm that transgender people endure because of other people's issues with their gender identity is the profound reason why we need this bill.

I will say it again and I want to emphasize it again: Transgender people suffer alienation, profound lack of acceptance; fear of and actual bullying, sometimes on a daily basis; violence; rape; and serious economic discrimination in the workforce, as well as discrimination in housing and medical care. Research in Ontario has shown that these forms of exclusion, discrimination and violence have led to unprecedented levels of suicide, suicide ideation and suicide attempt.

Here are some telling and frightening job statistics. In recent studies, only one third of trans Ontarians were working full-time and another 15 per cent had only part-time jobs. One out of every five was unemployed or on disability; one quarter was students; and 3 per cent were retired. I want to emphasize that almost 20 per cent of transgender people in Ontario at the time of this study were unemployed. That is two-and-a-half times higher than the unemployment rate generally in Ontario.

Job stability is often limited and those who choose to transition in a workplace often have serious problems in retaining their employment due to hostility either from the employer or others in the workplace. It is interesting, and this is an aside, that related to this is the problem of even getting references and academic transcripts with the correct name, pronoun and sex designation once someone has acted on their transgender identity.

Transgender people are significantly underpaid even if they can get jobs. Over 70 per cent of all transgender people are earning less than $30,000 per year. This is despite the fact that they are highly educated. Twenty-six per cent of transgender people have some post-secondary education; 38 per cent have completed post- secondary education; and 7 per cent have master's degrees or better. In total, 70 per cent of trans people have post-secondary education of some kind, up to highly sophisticated post- secondary education degrees. Yet, 70 per cent of those who are working earn less than $30,000 per year.

Rates of depressive symptoms amongst transgender Canadians are as high as two-thirds. The rate of hate crimes against transgender Canadians is very high. In fact, transgender Canadians are the group most likely to suffer hate crimes involving violence, and the incidence of this type of crime is probably under-reported because law enforcement agencies in this country do not collect statistics based on gender expression and gender identity.

Research in Ontario indicates that 20 per cent of trans people have been physically or sexually assaulted because they were transgender, and only because of that. This is very profound and disturbing. Seventy-seven per cent of trans people in Ontario reported seriously considering suicide; 43 per cent reported they had attempted suicide; and, of those who had attempted suicide, almost 70 per cent tried at age 19 or younger.

Trans youth are twice as likely as their non-trans counterparts to consider suicide. The same study indicates that those who had experienced physical or sexual assault due to being trans were twice as likely to have seriously considered suicide as those who had not had the experience of physical or sexual assault and over seven times as likely to have attempted it.

An Egale Canada survey found that 90 per cent of trans- identified youth reported hearing transphobic comments directed at them, often daily. Twenty-three per cent of those students reported hearing teachers directing transphobic comments towards them and against them. Twenty-five per cent reported having been physically harassed, and 24 per cent reported having property stolen or damaged.

We have a profound belief in equal access to health care in the Canadian identity. It is another part of our DNA. We pride ourselves on everyone having equal access to health care. However, trans Canadians find that in accessing health care — quite apart from surgeries which are not as widespread as some are led to believe — they are often denied medically necessary care by being forced to deal with the issue of their gender before they can access the service. They also suffer from poor access to psychological health care services and sometimes insensitive or hostile treatment from health care professionals based on their gender identity.

In Ontario, 21 per cent of trans people report that at some point when they needed emergency care they avoided the emergency room because of the fear of mistreatment. Clearly, no one should feel that they are safer outside a hospital during a medical emergency.

Education and the elevation of the issue are critical in the consideration of support for this bill. Some, if not most, of the discrimination these trans people suffer is rooted in ignorance and a simple lack of understanding of their circumstances among some Canadians. Canadians are not generally a mean people. We all know that in our hearts and we have consistently risen to the high road of rights issues when we grapple with them and understand them. The issue needs to be illuminated and explained, and this bill help helps to give and shed light on this issue.

As Irwin Cotler, MP, said in the House of Commons:

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

As Justice La Forest of the Supreme Court of Canada said, a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people "invisible."

This bill educates and secures recognition of this issue in a highly visible and significant way. The debate that it has created, the foundation of understanding that it will engender in the future, and the seriousness that it imparts to crimes of violence against people on the basis of their gender identity are all significantly important in elevating and educating so that progress can be made.

Adding this feature to the hate crimes section of the Criminal Code will send a very powerful message about a discriminatory behaviour that is absolutely unacceptable. It will sustain the idea that the rights of transgender people must be recognized and respected and that transgender people must have the right to participate fully in Canadian society.

There is a range of arguments against the bill, of course, as is always the case, and I would like to address those, each in their turn.

One argument is that gender identity inclusion in the bill is not necessary since it is already covered in human rights legislation and in the Criminal Code under sex and disability, and some would also say under sexual orientation. As I say, if that is the case, then there is absolutely no harm, one would think, in simply adding belts to suspenders to make the protections even stronger and elevating and thereby educating on the issue.

Second, gender identity is not a disability. It is what someone simply is. It is who they are. The only thing that remotely "disables" trans people is the discrimination, violence and bullying that inhibits them from having full, safe and fulfilling lives in Canadian society.

Further, sexual orientation does not cover trans people because gender is very distinct from sexual orientation. If a transgender man, who has been born a woman but lives as a heterosexual man, is beaten for who he is, it is not a question of sexual orientation to him. In order to make that designation apply, he would literally have to lie about who he is.

That gender identity is not well defined in the bill is another argument that is used. I believe it to be a spurious argument. It is defined in the bill, as I pointed out earlier in reading the definition in the bill, and it is defined in many other places: medical, legal and psychological. Concessions and compromise were made in the house already on the issue of definitions. The designations of gender expression and gender variance were not included in the bill that has come to us in favour of a clear definition of gender identity.

In fact, gender expression was removed from the bill specifically because it had been there due to concerns about definitions and scope, prominently elevated, I think, by MP Shelley Glover who on receiving that amendment to the bill then voted for it.

This is, therefore, a particularly focused bill, focused on a well- accepted and clearly defined concept of gender identity. The act's definition of gender identity has not been made up in a vacuum nor is it new. The human rights commissions and courts have done much to define it and, in fact, the Ontario Human Rights Commission has defined it in exactly the same way as it is has been entered into Bill C-279.

Gender identity is linked to a person's sense of self, and a sense of being male or female. A person's gender identity is different from his or her sexual orientation, in turn, which is also protected under the code, but people's gender identity may be different from their birth-assigned sex.

There is also the default to disaster defence. That is the defence against this bill that it will lead to the bathroom concern, that somehow men will be able to dress up as women and enter a women's washroom in order to watch or assault women and use this bill as a defence.

In fact, this is simply and utterly not the case. Trans people are way more likely to suffer assault than ever to perpetrate it. Randall Garrison, the author of the bill in the house, contacted the jurisdictions in the United States that have had these provisions in place for extended periods of time. California, Iowa, and the State of Washington replied to him. All of them reported that there had been no instances of attempts to use the protections for transgendered people for illegal or illegitimate purposes. There have been no instances — zero, none.

We only need to consider that any such activity, as is contemplated in this bathroom defence, or bathroom concern, would be so clearly criminal that no court would absolve it on this basis. Put another way, why would we risk discrimination against any law-abiding person on the basis of their gender identity because someone who may not even be transgender might dress up like a woman and undertake a criminal act in a woman's washroom? No one should be held hostage to the actions of someone else, certainly someone whom they do not even know or have the remotest possibility of influencing. Catch and convict those who do perpetrate criminal activities and protect the rest.

There is also this zero sum game concern, that this is a corollary to the disaster defence, that if the protections in this bill are given to transgender people, everyone else will lose, but it is simply is not the case. It simply defies logic that the gender identity of a transgender person can in any way diminish someone else's life, unless someone, as I say — a man dressing up as a woman, whatever their gender identity is — would perpetrate in a criminal way, and that would be clearly criminal and clearly distinct from what would be protected in this act.

There is a point that was made in a letter that many of us are receiving from a certain group. I say that because the letters are always the same. The concern expressed there, again, in an argument against this Bill C-279, is that somehow the definition is too subjective. It relates to a subjective state of mind, a sense of self, and how we could ever enshrine that or capture that in law. Of course, we accept absolutely outright that you cannot discriminate against people on the basis of their religion. Well, that, too, is something that is very, very deeply subjective and deeply personal, and we have had no problem defining discrimination against people on the basis of their religion. Not only that, and this may be an esoteric point, but it is not really the definition of how the transgender person feels about his or her gender identity; it is how the person who is discriminating or even being violent against that person feels about whatever it is he or she thinks that identity is. Of course, that raises a question that so often is addressed and handled in law, and that is the question of intention and of state of mind. Certainly, in the Criminal Code, there is a defence between certain levels of criminal activity based upon whether you had intention or not. The courts are always defining intention.

I set aside the argument that somehow this is too subjective. It is not. It is clearly defined within the law, it is clearly defined within the procedures of law and it will not and has not been a problem.

There is also the fear that the inclusion of gender identity in Canada's hate speech laws may spark vexatious litigation, thereby creating a chill on free expression, but again, that is without foundation. On the contrary, the Supreme Court of Canada has recently narrowed limitations on hate speech in the Whatcott case to focus on the kind of speech that promotes hatred, specifically leading to discrimination, without limiting less intense and less pernicious forms of speech.

The Criminal Code has a built-in filtering mechanism, in addition, that requires the Attorney General's consent for prosecutions for the wilful promotion of hatred under subsection 319(2). Clearly, there is a review of whether a prosecution would be warranted or ruled vexatious.

In conclusion, I would like to ask this question: Why do we not just fast—forward this? We are going to do this one day anyway. History tells us that we go through this cycle of delay with so many of these issues. It took 75 years to get women the vote, and then probably 100 years to get Aboriginal people the vote.

Notably, and most recently, we can see this kind of cycle of delay and overcoming argument after argument with gay marriage, and the default to disaster position was trotted out in that debate by opponents as well. It would ruin the family and the institution of marriage — this went on for years — and helped delay the passage of gay marriage legislation, and, of course, gay marriage has damaged neither marriage nor the family. It has enriched our society, it has enriched our culture and it has enriched many families and the lives of many people.

I remember speaking to an MP recently who voted against gay marriage, and he said to me: You know, of all the things I have done in politics the one I really regret is that I did not vote for gay marriage. That is just short years after having voted against it.

It is instructive to note that 100 years ago a woman wearing pants would have been highly scandalous and how that has changed. Anything that makes for a safer, more accepting society inevitably makes for a better place to raise a family and build a marriage, create a strong community and create a healthier society. We took decades to accord the vote to women and Aboriginal peoples, to get to gay marriage and so many other steps we have taken along, confronting the frontiers of the equality of rights issues, but we always, in the end, get to the right thing. Why do we not just fast-forward past the arguments now, past the barriers, past the obstacles, avoid at least some of the pain and anguish otherwise to be suffered by trans people in the future if this is not passed and give this recognition and protection to these Canadians who are asking us for our help?

At the core of this issue, in many respects, is bullying, and a defence against bullying, elevating once again that it is wrong, needs to be dealt with and understood. We are all suffering the tragedy with the Parsons family, whose daughter committed suicide recently because of bullying. She suffered untold, unacceptable, horrible bullying and worse, and, not to diminish her experience, but trans people experience very much the same thing frequently, often on a daily basis. It is bullying, and it results in the kind of event that has happened to the Parsons family and that young woman.

What we know is that societies have to confront issues of discrimination all the time, that they are richer, safer, more understanding, more loving and compassionate societies if did they do that. Every time we have to confront an equality issue, there is a question of whether it is as important or significant or whether there are irrefutable arguments against it, but that is simply a condition of these issues. There is disagreement about these based on prejudices, biases and misunderstandings, but I reiterate that we have the chance to fix this, and that in the House of Commons they crossed party lines to do that, and 16 members of Parliament on the Conservative side voted with the opposition. Two of them, at least, were cabinet ministers. As I have been polling members of the Senate, I have had a tremendous response, and, to this point, I have spoken to or had email conversations exchanged with 13. I have had 10 say, yes, they will support the bill; I have had 2 say they want to consider it further; and I have had 1 say he is concerned that gender expression is not in the bill, and it is not.

I think the prospect is for us to work together on both sides, all parties in the Senate, to do something that is immeasurably important that will elevate our society once again, that will provide leadership on rights, equality, justice and fairness in Canada and in the world. It will be something we can simply give to friends, neighbours and colleagues who are transgendered people who are asking us for our help. I am asking honourable senators to vote for Bill C-279 and give them that help.

Hon. Mobina S.B. Jaffer: I would like to ask Senator Mitchell a question, if he will accept it.

Senator Mitchell: Yes.

Senator Jaffer: When I came to the Senate, I understood we had two mandates; one was to allow national unity and the second was to protect minority rights. The bill before us today is really a natural evolution of the rights of minorities. The honourable senator was speaking about women and Aboriginal rights. Sometimes we take those for granted now because it has been a few years, but there are many people in our society who are still suffering discrimination.

I would like the honourable senator's opinion. Is it not the role of the Senate, and the responsibility of every senator, to protect the rights of all Canadians?

Senator Mitchell: I thank the honourable senator for pointing that out and emphasizing it. At one point, in developing my speech, I was contemplating beginning to name great senators, many of whom are here today and have fought, defended and been leaders in the fight for equality rights. Then I realized it would just take too long to do it. We have accepted that role historically. The Senate was established for those two reasons.

Now, as they say, the crunch has come, and we have the chance to exercise and fulfill that responsibility in a significant way that will once again enhance, augment and elevate our society. It is a wonderful opportunity, one of the opportunities you get to do the right thing and a wonderful thing when you are a senator.

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