Bill C-16 seems on its way to becoming law. But what makes it so controversial?
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.
What is Bill C-16?
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.”
Why is it needed?
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.”
Why is it controversial?
The bill first became the subject of debate when Jordan Peterson, a psychology professor at the University of Toronto, argued that the bill would limit free expression. He believes the bill would force him to use such pronouns as ‘ze,’ ‘xe,’ or the singular ‘they.’
“I was being asked, as everyone is, to use a certain set of words that I think are the constructions of people that have a political ideology that I don’t believe in and I also regard as dangerous,” he told Steve Paikin on The Agenda.
Basque disputes this: he says nothing in the Criminal Code section of the bill will compel the use or the avoidance of particular words, as long as the speaker’s intent is not to promote hatred against identifiable groups.
Feminist activists, such as Hilla Kerner of the Vancouver Rape Relief and Women’s Shelter, and Meghan Murphy, founder of the website Feminist Current, say the bill neglects the safety of women. By allowing men that identify as women into women’s spaces, such as sex-segregated homeless shelters, transition houses, and washrooms, Murphy says, the bill makes women more vulnerable to male violence.
But this point of view the Public Service Alliance of Canada wrote in its submission to the Senate committee, reinforces stereotypes about the trans community: “This phenomenon is not occurring in any jurisdiction that protects trans people through similar legislation. The Criminal Code already prohibits voyeurism and sexual assault … These arguments are actually evidence as to why it is important to adopt Bill C-16: to dispel myths and prejudices, and to proclaim that we indeed respect the human rights of all persons.”
Conservative Senator Don Plett has also been an outspoken critic of the bill. He argued in a statement delivered in the Senate that including “gender expression” in the list of identifiable groups to be protected against genocide and hate crimes in the Criminal Code is problematic, because unlike characteristics such as ethnicity, age, and sex, “gender expression” is not an “immutable characteristic.”
“Presently, the only protected ground that is not an immutable characteristic and is based on an internal and personal subjective experience, is religion,” Plett said. “There is protection for discrimination based on religion, but the expression of that religion is implicitly covered by this ground. Likewise, gender expression would be covered by gender identity.” He said the term is vague and could lead to constitutional challenges.
What happens next?
The bill passed the House in late 2016, and made it through committee hearings in the Senate on May 18 without any amendments. It now goes to the Senate floor for its third and final reading. If it passes, it will need royal assent before it becomes law.
Advocates of the bill are hopeful that it will pass before Parliament rises for the summer, so that it doesn't’t get stymied by delays or other priorities in the fall. It’s a long time coming: the first bill of this nature was introduced in the House of Commons in 2005.
Correction: A previous version of this article misspelled Siobhan O'Brien's surname.