Sunday, June 02, 2013

Reviewing The Senate Debate Speeches On C-279

The Senate debate on Bill C-279 has been bubbling along for the last few weeks.  For a variety of reasons, I haven't had time to sit down and compose my thoughts on what I have observed, but now that the bill has passed second reading and been passed on to committee, we have the full transcripts of the debates posted in the Hansards.
(I find it easiest to find the actual debates by searching for 'C-279' in the page once it is opened)

Senators speaking on C-279:

Grant Mitchell, Liberal, AB
Mobina S.B. Jaffer, Liberal, BC
Hugh Segal, Liberal, ON
Donald Neil Plett, Conservative, MB
Pierre Claude Nolan, Conservative, QC
Nancy Ruth, Conservative, ON
Lillian Eva Dyck, Liberal, SK
Don Meredith, Conservative, ON

As one might expect, the major speeches divide roughly along party lines, with the Liberal senators speaking in favour of Bill C-279; and the Conservative senators speaking against it.

I'm generally in favour of C-279 in spite of some difficulties that I have with the scope of the legislation and amendments that have changed it from its original form.  So, I will not spend a great deal of time on the speeches which are in favour of the legislation - they simply reiterate points that I consider basic to the discussion - namely the reality that Canadian law can, and should, provide protections for all Canadians, and move to act where various groups find themselves subject to discrimination and persecution.

As has been shown many times in the past, the law can be an effective agent of social change - but only where the law is used to ensure greater freedoms for those who are the most disadvantaged in society.  When the law is used to constrain people's rights and freedoms - and reinforces suspect social proscriptions in society, those proscriptions inevitably fail.  For example, until 1967 it was not just immoral to be a homosexual in Canada, it was in fact illegal.  By removing it from the criminal code, Pierre Trudeau started the process of social change in Canada which we see the results of today in a youth which no longer considers it to be a big deal for someone to be openly gay.  It has taken some four decades for that change to take root, but the result is clear and gay people in Canada are much more open about their lives and do not live in fear of being jailed simply for loving someone.

Did the laws which criminalized homosexuality have the desired effect of making homosexuality disappear?  No.  They simply drove it underground, and ultimately made social, economic and criminal pariahs of people.  Homosexuality did not go away, it simply hid itself.

Much of the debates around C-279 is based upon either fear-mongering or the conflation of unrelated issues with what C-279 is intended to address.

So, on to the debates related to C-279:

Opening Discussion:

Grant Mitchell, Liberal, AB
Mobina S.B. Jaffer, Liberal, BC 

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.
Whoever did the research for Senator Mitchell was thorough, and I think in the closing of this paragraph the Senator cuts to the heart of the issue.  Transgender people simply are a fact of life.  This should never be lost sight of.
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.
I have to give Senator Mitchell high marks for being thorough and clear about the very real issues that transgender and transsexual people in Canada face.  This is not trivial, nor should it be seen as an issue that can be swept under the carpet.

While I do not see bill C-279 as being able to directly address the very real economic issues that transsexuals experience, it think it is an important first step to have recognized these groups explicitly in law.  To date, many provincial human rights bodies have "read in" recognition of transsexuals in their interpretation of the anti-discrimination legislation.  However, that is a highly problematic approach because it means that the "read-in" status has to be validated in every single case that is brought forward, and not all transsexuals have the resources and drive to push these complaints through to their logical and necessary conclusions.

Second Discussion

Hugh Segal, Liberal, ON

I want to draw out one particular point of Senator Segal's speech in favour of Bill C-279.  It is important for a number of reasons, but most importantly because it appropriately points out the fallacy of the "slippery slope" argument that comes up later from several Conservative Senators on the matter:

Let me quote Randal Garrison, MP, the distinguished and courageous sponsor of this legislation, from his speech on February 27 of this year:
There were some concerns about "gender expression" being less well defined in law and that this would somehow open the gates to abusive practices on the basis of the gender identity bill. I will be very frank and talk about the main one of those, which was the concern that somehow people could use this bill to gain illegitimate access to public bathrooms and change rooms in order to commit what would always be criminal acts of assault.
I contacted the jurisdictions in the United States that have had these provisions in place for a very long time. Four of those did reply, those being California, Iowa, Colorado and the state of Washington. All of them reported the same thing: there have been no instances in any of those states of attempts to use the protections for transgendered people for illegal or illegitimate purposes — no incidents, zero, none.

Third Discussion

Donald Neil Plett, Conservative, MB
Grant Mitchell, Liberal, AB

Here is where the discussion turns ugly, in my opinion.  Most of the points that are being raised by the Conservative Senators from this point forward are reiterations of the nonsense arguments that have been put forward in the House of Commons by the likes of Rob Anders regarding this bill, but also include some new twists in their attempts to try and render C-279 invalid.

Conservative Argument #1:  Gender Identity Is Ill-Defined
Honourable senators, let me refresh your memories by reading the proposed definition of "gender identity:"
... "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 repeat that:
... 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.
Honourable senators, does this sound like a clearly defined, objective piece of legislation? This provision would add an entirely subjective and self-defined characteristic to the Canadian Human Rights Act and to the Criminal Code. How can a court fairly judge a case based on someone's internal feeling and subjective experience?
This is a red herring claim.  There are many places in law where the understanding of the definitions of specific terms require that practitioners of law turn to domain experts to correctly understand the terminology being used.  This objection fails to recognize that the concept of gender identity is well understood within the mental health professions, and is held to have a coherent meaning.

Complaining that the definition is "too vague" is ridiculous.  Law must turn to domain experts when assessing claims in a variety of circumstances.  Establishing if an engineer acted negligently in the design of a bridge cannot be done by a lawyer.  It requires the expertise of other engineers to assess what caused the bridge to fail.  Was it a result of the bridge's design and materials, or was there an error in building it, or the maintenance of that bridge?  In such circumstances, courts find it necessary to hear from expert witnesses who are domain experts.  It seems to me that the same principle applies when discussing the notion of Gender Identity.

Heck, one might just as well complain that the definition of "weapon" in the charge of "assault with a weapon".  Simply put, just about anything can become a weapon in the right circumstances.  It is up to the courts to assess whether a given object was used as a weapon in a given offence situation.  There is no canonical list of weapons in law for this very reason.

Similarly, when we are discussing topics such as Gender Identity, it is very important to recognize that Gender Identity is a spectrum phenomenon in human beings, and the gradual changes in the psychological literature in attempting to define Gender Identity reflect that growing recognition.  Back in the days of Dr. Harry Benjamin, he attempted to create a "scale" of classification to describe the array of gender identities that he was encountering among his patients.  That has gradually come to be understood as more of a spectrum, with many individuals exhibiting aspects of multiple categories in Benjamin's original scale.

Conservative Argument #2:  Bathroom Panic

Among the transgender community, this is probably the most infuriating argument that can be made.  Sure enough, Senator Plett drags this one out too:

One concerned Canadian citizen sent me an article about a case at a Washington college where a transgender man was walking around a woman's change room, where a concerned parent stated:
He was sprawled out nude in the sauna, exposing himself to women and girls as young as six. The college shares a change room with a local swimming club and a high school. When he was asked to leave by a female coach, the transgendered man said he felt discriminated against. He said this is not 1959 Alabama and we do not call police for drinking from the wrong water fountain, a comparison that I find inconceivable. The coach then had to apologize. She said she had not realized he was transgendered.
Senator Mitchell has discussed time and again, including earlier today, the case of an RCMP officer who had exposed himself to an adult woman and who did not receive enough recourse for it. Under this provision, where a nude man could be sprawled out in a sauna in front of a six-year-old girl, there would be no recourse. The only person who could be penalized under this law would be a person who might ask the individual to leave the change room or to cover up because they would be discriminating based on gender identity.
The college is granting special rights to a transgendered person at the risk of causing trauma to a six-year-old girl. Honourable senators, this is wrong. At this point, we have to ask ourselves, why even have male and female bathrooms and change rooms? The language in this bill is so vague that it begs the question: where do we draw the line?
First of all, "causing trauma"?  Really?  Give me a break.  Seeing another person's naked body is not "traumatic" to anyone of any age unless we are talking about a sexual abuse case.  I'm pretty sure that this is reference to the situation that happened at Evergreen College in the fall of 2012, with some embellishment by adding the notion that six year old children could be involved.

Frankly, I think that Ms. Francis' behaviour was inappropriate to some degree it would not have been difficult for her to wear a bikini bottom while using the sauna facility which would have comfortably sidestepped the bulk of the issue in the first place.  That said, it must be pointed out that Ms. Francis was using the appropriate facility relative to the gender presentation that she is living; and further to that, I must also point out that in no way did she threaten or attempt to assault anyone.  Which pretty much reinforces the point which Senator Segal made previously.

Conservative Argument #3:  Slippery Slope

Building on the "vagueness of terminology", the Senator goes on to argue that the implications of the resulting law are vast and unimaginable:

Honourable senators, I would like to highlight the following questions that have been raised by a number of members of Parliament and concerned Canadians. I ask honourable senators: What does it mean in defined terms to have a bias based on a person's deeply held, internal and individual experience of gender? What kind of speech based on someone's subjective or personal sense of being male or female would be considered hate propaganda? What does it mean to have a bias based on a person's subjective sense of being male or female? How do we single out one gender from the other?
Of course, it doesn't exactly take a great deal of digging around to identify cases where someone has been the subject of discrimination or hate propaganda based on their gender identity.  There are plenty of groups roaming the internet which do just that.  It is even arguable that groups like Gwen Landolt's "REAL Women Canada" qualify when they arbitrarily draw linkages between transsexuals and sexual predators.  That is pure propaganda since there is exactly no evidence to support it.

Conservative Argument #4:  Transgender Is Incomprehensible and Changeable

Senator Plett goes a little further with the idea of terminology being ill-defined:

Further to the case of some people not being known as what they are, the fact of the matter is that is exactly one of the problems I have. The Human Rights Commission has very clearly ruled on transsexuals. Transsexuals I understand, but transgender is saying, "Today in the morning I feel like one thing, and tomorrow I might feel like something else," and innocent victims are impacted by that. I will always yield to the innocent victims, especially if they are children.
I am going to make a couple of points here.  First of all, he has grossly mischaracterized what Transgender means.  People who are transgender aren't waking up each morning and deciding arbitrarily whether they are going to present as male or female; masculine or feminine.  There are a few within these groups for whom their gender is very fluid.  But that is irrelevant to the point of bill C-279.  Whether the good Senator "understands" these variations or not, the point of Bill C-279 is that they should not be subject to discrimination simply on the basis of the fact that they are transgender.

Fourth Discussion

Pierre Claude Nolan, Conservative, QC

Senator Nolan speaks in favour of the bill as it stands and echoes much of the arguments made by Senators Mitchell and Segal earlier.

Fifth Discussion

Nancy Ruth, Conservative, ON
Lillian Eva Dyck, Liberal, SK
Don Meredith, Conservative, ON

Senator Ruth adds some twists to the Conservative arguments made above that are important to examine in some more detail.

I am going to pick those out and explain my problem with the assertions contained therein.

Conservative Argument #5:  C-279 Puts Transgender Rights Ahead Of Natal Female Rights

For 35 years, across numerous bills, Parliament has told the girls and women of Canada that, despite alarming rates of violence against girls and women, violence that typically includes hate speech, they are not worthy of protection. The omission is not an oversight. In 1985, the federally appointed Special Committee on Pornography and Prostitution said that there was "ample evidence" indicating women were the targets of hate material. The committee recommended that the Criminal Code hate laws be amended to extend protection to women, but no Parliament has done that. Why? I have spoken before in this chamber about this gap in the law.
This bill will privilege men who choose to become women over women who are born female. While I do not question the good intentions of the sponsor and the supporters of the bill, I simply do not understand how they could advance this bill without including all women. Passage of Bill C-279 will mean that only if a woman is born a man who later chooses to identify as a woman will she receive protection, but a woman born a woman will not receive the same protection. This legal difference has legal consequences. Clause 2 of the bill does not answer the question of how the new ground of gender identity will affect the rights of women.
While sections 318 and 319 of the Criminal Code of Canada do not include sex as an identifiable category, it strikes me that this is something of a truism, rather than a valid criticism of C-279.

It is spurious to argue that because C-279 doesn't address that criticism of the criminal code provisions on criminal hate propaganda that it should not be passed.  I would be interested in establishing whether there has been any amount of propaganda aimed at women which would be prosecutable under Section 318/319 of the Criminal Code in the last fifteen years.  There have only been a handful of applications of the hate crime laws in Canada since they were enacted. 

That said, Senator Ruth's argument is a conflation of two issues.  Her claim that it "places one group ahead of another" speaks to a hierarchy of rights mentality that should be viewed as invalid in any just society.

I do not think it wise to engage in confusing two distinct issues.  Trying to amend C-279 to include sex as a prohibited category of discrimination under the criminal code is to engage in the same kind of legislative 'sleight of hand' that we see so commonly in the United States where amendments to bills are often made that are utterly unrelated to the bill itself.  This unnecessarily muddies the discussion of the issues that the bill is intended to address and fails to adequately address either set of issues.

Senator Ruth's objections raise a legitimate complaint regarding the language of the Criminal Code, but are spurious relative to the issues of gender identity and discrimination.

However, I do not perceive the Criminal Code modifications as being particularly high value.  The issues of hate speech are generally far better dealt with under the broader rubric of the Human Rights code in Canada, where the degrees of harm or potential harm can be addressed without turning the entire business into an either-or discussion carrying criminal penalties and records with it.

As for the issue of whether including sex as a ground of discrimination under the Criminal Code would address the rates of violence against women, I am somewhat skeptical.  The issue of violence against women is centuries old, and I have seen little that would constitute the kind of hate propaganda that the current provisions are intended to address.  The claims made among those who monitor women's rights in Canada that violence against women is the result of a pervasive cultural misogyny  strike me as intellectually interesting, but not necessarily well substantiated.  I would like to see some better evidence applied to such claims, and more to the point, whether the kind of propaganda that would garner a conviction under that part of the Canadian Criminal Code actually exists.

Anecdotally, I would suspect that there is more to be gained from bolstering the application of existing Human Rights code legislation rather than criminal code provisions.  Ironically, I would argue the same with respect to C-279's proposed amendments.

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