Bubbling away in the United States recently has been a lot of very loud discussion over a piece of legislation currently before the legislative houses called Employment Non-Discrimination Act or ENDA for short.
ENDA has the right-wingnut fundies in a lather to begin with because it extends protections on the basis of sexual orientation, making it difficult for an employer to fire someone who is gay. A secondary debate has emerged as to whether the wording of ENDA should be expanded in scope to include gender identity - and in particular transsexuals.
My natural inclination is that this is a no-brainer. Make the legislation as broad as possible to prevent unnecessary and unwarranted discrimination - period.
However, the debate in the US is much more heated because the US has a much more patchwork set of laws regarding human rights, with regional and local government often having enacted significant protections for various minorities well ahead of the Federal Government, and ENDA would be Federal legislation covering the entire nation. The religious feel that sexuality is all about "moral failings" in behaviour, and they wish to reserve the right not to have to work with or employ someone who they discover is "immoral".
Even the GLB organizations (who often tack the "T" (for transgender) onto the end of their name as an afterthought) have been known to argue that it doesn't matter if transgender people are included or not.
There's a couple of claims around exclusding transsexuals - the more wingnutty of the right wing claim that transgender people are still protected even if they aren't specifically named (based on a bit of illogic that I can only call convoluted). Or, similar claims are made based on existing sexual discrimination laws. Sadly, both are based on flawed reasoning that fails to examine the legal patchwork - you might be able to work in California and be protected, but if your company moves you to say - Texas - the legal framework changes quite dramatically. Not good news for someone who is part of an often-visible and ill-treated minority population.
What galvanizes my opinion on the current ENDA legislation debate is actually secondary to ENDA itself - it is the revelation of the existence of legislation prohibits treatment for transsexual prisoners in the state of Michigan. We aren't talking about inhibiting someone's otherwise peaceful life here, but rather preventing them from getting treatment for a condition that is very psychologically distressing. (Why anybody would want to attempt gender transition in prison is beyond me - I can't imagine a worse environment, but with the world's highest rate of incarceration, the US is going to have all kinds of situations pop up) If this kind of patchwork discrimination doesn't underscore the problem that ENDA addresses, I don't know what does.
In Canada, the legal picture is quite different. Section 15 of The Charter of Rights and Freedoms is quite broadly worded:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The "and, in particular" phrase is vitally important to this clause of the Charter as it clearly takes the following list of clauses from being an "exclusive list" (where terms not already written are simply excluded) to be an "inclusive list" in which new forms of discrimination can be "read in" via the courts.
Additionally, because of the peer relationships between provinces, the interpretation of human rights legislation in one province will influence the others. So, for example, where Alberta's Human Rights Act doesn't specifically include transgender people (or homosexuals for that matter), interpretations such as Ontario's are highly influential. (and, as the Vriend case made so clear ommission in Canada is not exclusion:
Alberta's human rights legislation
* Human Rights, Citizenship and Multiculturalism Act
Note: Although it is not expressly stated in the Act, as of April 2, 1998, sexual orientation is "read in" to the Act by the Supreme Court of Canada as a protected ground of discrimination in Alberta.
Sadly, in Canada, such legal protections only extend as far as people who are affected choose to push them. In provinces like Alberta, it's all too easy for someone to be fired for being transgender and the legal battles that ensue are lengthy and costly. The only subtle bit of hope was shed when the Provincial Government took intervenor status in recent hearings regarding the complaint against Stephen Boissoin and stated that there are boundaries to freedom of speech.
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