Comment on Bill C-279 Amending CCC, CHRA inclusion of Gender Identity and Expression

On Wednesday the House of Commons will vote for a third time on Bill C-279 . The purpose of this Bill is to amend the Canadian Human Rights Act (CHRA) and the Criminal Code of Canada (CCC) to include the words, gender identity and gender expression. If it passes then it will be illegal to discriminate against people on the basis of gender expression and identity; and it adds this wording  to cover in CCC section 318 "Hate Propaganda" (4) identifiable groups; and section 718.2 CCC on sentencing.

The effect is to protect Trans people from discrimination and hate crimes. If you read the purpose of the CHRA, the amendment is in keeping with the Acts stated purpose. The changes made to the CCC are reasonable as they merely reflect the changes being made to the CHRA.

There is nothing novel in expanding Human rights coverage to Trans people. Since the Acts inception in 1977 it has been altered to prevent discrimination on the basis of Sexuality, amended to include hate communication (recently that was repealed, C-304 also know as "Protecting Freedom"). It was also changed to include First Nations people. I am of the opinion that a Human Rights Act should be as expansive as is necessary to ensure Canadian citizens are as free from discrimination as we can manage.

Great news! As I write this commentary C-279 has passed third reading by a vote of 149-137 and is off to the Senate. My congratulations to the bill's sponsor NDP Randall Garrison. I noticed my MP Rick Dykstra voted nay on second reading, I hope he changed his mind this time around.

This Bill has received some opposition from the likes of the Campaign For Life, a small anti -choice group. Canada Family Action, which should not surprise anyone who reads the Section called "what we stand for",

Canada Family Action Coalition has a vision to see Christian principles applied in Canadian law, politics and society.

Christian principles applied to Canadian Law, I don't blame you for the shiver you just felt after reading that. The Bill to expand Human rights coverage to Trans people has Gained the moniker "the Bathroom Bill from its opponents. The opposition has come at C-279 in two ways an appeal to reason and a panicked shortness of breath. The first and only attempt at reasonable discourse is the suggestion that the new terms are "undefined" and would task Judges to interpret the law, Conservatives religious or otherwise are not happy with Judges interpreting law. I'm not sure exactly how you might misinterpret Gender Identity and Expression. It seems clear Identity being what gender you feel you are and expression being how you show that in your outward appearance. 

They are also concerned over potential "costs" associated with this Bill, additional bathrooms, human rights complaints( these people are not fans of the Tribunals); increased Heath care spending; and violations of the CCC . But these are really a throw away points like when  MPs Warawa andWoodworth  talk about supporting women's rights or science to promote back door anti-choice motions like motions 408 and 312. Their intention is to end Reproductive Choice.

The bread and butter points for this group of religious conservatives, (self described), are the children, women but not so much men. Children might be taught about tolerance or shudder,  understanding and acceptance of trans people. We don't want to confuse children, but I see the confusion arising perhaps from being taught one thing at home and another in school or the wider world. 

All arguments resolve into the meaning behind  the appellation "Bathroom Bill" attached to this amendment by those in opposition. If this Bill passes, women and children, will face assaults in bathrooms and showers across Canada. A  Mr. McVety considers the bill "a danger to our children". He describes a situation, 

If gender identity is enshrined in the Criminal Code of Canada, any male at any time will be permitted in girls bathrooms, showers and change rooms as long as they have an innate feeling of being female,” said McVety. “If I then try to stop such a man from showering with my little girl at the local pool I could be in breach of the Criminal Code of Canada and could face imprisonment.” 

It is quite clear what Mr. McVety thinks of Trans people. We all want to be safe, Children, Women and Men. It is beyond intolerable to conflate Trans people with sexual predators. A low point in political discourse. These are the same people that wished to deny rights to the LGBT community, like protection against discrimination; ability to adopt, marriage rights. This subset of christian believers "knows" what is right and good and true; everything that doesn't meet with that definition must be opposed and the chief tool in opposition is fear; of sexual abuse, societal breakdown and perversion. They fight against expanding rights to the LGBTQ now, but before that came opposition to minority rights, before that and still sadly Women's rights. All change seems apocalyptic. 

They are part of a larger group that understands change brings loss of place and privilege for the formerly dominate people. When you extend equal rights to cover more people or circumstances you don't diminish the rights the dominate group but you do effect their ability to discriminate and so marginalize. This inevitably leads to a transfer of some  power and opportunity to the formerly disenfranchised groups. They won't stop fighting and hopefully won't stop losing.

UPDATE: I just checked the Voting on C-279, my MP, Rick Dykstra Vote Nay on amending the CHRA and CCC to include Gender Expression and Gender Identity. 

A Woman, A Barber Shop and A Human Rights Commission

A story about a Barber Shop refusing service to a patron based on religious reasons is winding its way through the news cycle. This is the first I have heard of the incident, though it appeared to have happened almost two weeks ago. A woman wanted a man's style haircut; the Barber shop she choose is operated by observant Muslims; they refused her service because they are restricted in the manner that they may interact with women. No one in the shop could touch her, no touching no haircut. The women has filed a gender discrimination complaint with the Human rights commission. The relevant section can be found in The Human Rights Code Part 1, Freedom from Discrimination; services 1;

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1 

The barber shop, by refusing service to this women has violated this section. I could find no section where religious obligation exempted adherence to  provisions of the Human Rights Code.

So what do we do when rights conflict? The Human Rights Commission is going to be asked to rule on primacy of Rights. The Charter of Rights and Freedoms guarantees religious freedom; belief and practice. I am not sure if Section 15; equal protection and equal benefit of the law, extends to private citizens offering services to the public. We have seen a slow erosion of discrimination based on race; accommodations or jobs. We expect public and private facilities to be accessible to the physically impaired. The right to discriminate on religious grounds is the present conflict zone. 

What of accommodation? There are many barbers who would happily cut her hair. She was denied the services in one shop, not all shops. Is it in our interest to allow some discrimination an religious grounds? Especially in cases where their is ample alternatives available to the offended party. We already make some  exceptions regrading race, gender and religious discrimination. I would not force an all female only health club to except men. I support affirmative action; on racial and gender grounds,that is discrimination; though towards a positive end.  I certainly would never force a Church, Mosque or Temple to marry a Gay couple. 

The right to refuse a service because of religious reasons versus the right to equal treatment. This conflict has found expression in the case of a marriage commissioner refusing to provide services to gay couples, the Courts ruled that you do your job or your lose your job. The Courts did not recognize religious belief as valid excuse for discrimination. A government has an obligation to uphold fair treatment in the providing of services to its citizens. How well this translate to private persons providing a public service is not always clear. In British Columbia the Human Rights Tribunal ruled against a taxi cab operator who refused, on religious grounds, service to a blind man and his work dog. Again in BC a gay couple, by way of the HRT successfully sued a B&B for refusing them service. 

If you take these cases as indication of a trend it would appear that the Religious defense, an expression of conscience is not sufficient to exempt a business from charges of discrimination. That discrimination if allowed must provide a tangible benefit to the wider community.The HRC has its hands full with this case. in attempting to find a balance between the right of belief with right of access. 

 In Addition: With respect to discrimination rulings, religious or otherwise; the standard applied seems to be that any discrimination that is negative in practice and places an unreasonable burden on an individual, group or class of citizen should not be tolerated. In the absence of such a burden accommodation of some type should be sought.

Inalienable Rights?

On Saturday in New York city a bomb was discovered in Time Square. By good fortune, the bomb did not go off. It has been describes as a poorly made device, of propane tanks fire works and fertilizer. An amazing 52 hours later the man the police suspect to be the bomber was in custody. His name is Faisal Shahzad he is an American citizen originally from Pakistan. When he was arrested he was given his Miranda warnings. The conservatives were angered by this. The theme of the complaint ran like this “if you read him his rights you can’t interrogate him properly”. By “interrogate properly” we can surmise they mean abusive and coercive treatment. This same call to withhold Miranda was made in the case of the underpants bomber, for the same reason. If he isn’t read his rights you can do stuff to him that is normally forbidden.
The difference here is a big one, Shahzad is an American citizen while Abdulmutallab was from Nigeria. The constitution does not contain a Miranda provision , but supreme court up held its constitutionality, so it’s the law. The Constitution provides that citizen and non-citizen face the same standard of treatment with regards to criminal procedure. This is a good thing. The power of the State after all doesn’t diminish just because you are from somewhere else.
The fact that conservatives are asking that rights be withheld for a little while, just long enough to extract the necessary information, tells me they most not understand the what rights are. The Miranda warning is the legal expression of a moral/ethical position. What the Miranda warning is shielding the suspect from abuse of power. The man in custody is facing the full weight and power of the State. It is acknowledged that in circumstances like this abuse is likely and in a nation of Laws protection from this potential abuse is necessary in the interests of justice. The notion of justice is important.
Those angling for temporarily withholding Miranda are telling us that this notion of justice is not impaired as long as the abuse comes before the legal protection. This is a fiction cemented in the belief that the Law is only procedure and underpinned by nothing. You can’t violate a right until it is possessed. This argument defies logic. Miranda like most rights are the distilled product of need. Rights are the answer to the question of how do we ensure Justice, equality and guarantee freedom. Rights delineated in constitutions the world over do not exist because someone recorded them in writing and declared them Law. The right to free speech, association , freedom of religion…. , existed before, some as conventions deeply embedded in our society. Constitutions were the formal written expression of something that already existed, but now had legal force. No longer could the agents of the state apply or deny rights as they wished.
The conservatives in their fear, in their zeal want to do just that. They seem to want to return to those days when whim dictated justice. No state should ever be asked to destroy itself in order to remain pure of principle. Until that time approaches we must remain dedicated not only to the process but of the moral and ethical underpinnings of the Law.