Research publications

Contents

Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.

• 1 Background
  • 1.1 Context
    • 1.1.1 Gender Identity and Expression
    • 1.1.2 Human Rights Law
    • 1.1.3 Historical Developments
    • 1.1.4 Provincial and Territorial Approaches to Gender Identity and Gender Expression
    • 1.1.5 Previous Bills
• 2 Description and Analysis
  • 2.1 Amendments to the Canadian Human Rights Act
  • 2.2 Amendments to the Criminal Code
    • 2.2.1 Hate Propaganda
    • 2.2.2 Sentencing Principles
• Notes

1 Background

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, was introduced in the House of Commons on 17 May 2016 by the Minister of Justice, the Honourable Jody Wilson-Raybould.1 The bill is intended to protect individuals from discrimination within the sphere of federal jurisdiction and from being the targets of hate propaganda, as a consequence of their gender identity or their gender expression.2 The bill adds “gender identity or expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act3 and the list of characteristics of identifiable groups protected from hate propaganda in the Criminal Code.4 It also adds that evidence that an offence was motivated by bias, prejudice or hate based on a person’s gender identity or expression constitutes an aggravating circumstance for a court to consider when imposing a criminal sentence.

1.1 Context

1.1.1 Gender Identity and Expression

“Gender identity” and “gender expression” are terms that are already used in several human rights laws across Canada (see section 1.1.6 of this Legislative Summary for further discussion). The terms refer to a person’s understanding of what their gender is and how they choose to express it.

People may identify with a concept of gender that is aligned with the sex they were assigned at birth, or they may identify with a gender that is different from their sex assigned at birth or simply self-identify with a non-traditional or non-stereotypical concept of gender.5 The most commonly used term to describe people who self-identify with a non traditional concept of gender is “transgender,” though some individuals prefer to be described as intersex, cross-gender, gender-diverse, or gender queer, among other terms. The term “transsexual” is often used to describe people who do not identify with the sex they were assigned at birth and seek to have their gender and their sex align through medical intervention, such as by taking hormones or undergoing surgery.

The Canadian Human Rights Commission, among others,6 has noted how transgender persons typically face high levels of discrimination:

Transgender and gender-diverse individuals across Canada face discrimination, exclusion, and hostility in their daily lives – often impacting their access to everyday services that many Canadians take for granted when they, for example, want to see a family physician, travel, or use a public washroom.7

A 2015 study provided the following statistics about “trans (transgender, transsexual or transitioned) people in the province of Ontario”:

• 96% had heard that trans people were not normal;
• 73% had been made fun of for being trans;
• 20% had been physically or sexually assaulted for being trans;
• 13% were fired for being trans, while another 15% had also been fired, but were not sure why; and
• 10% of trans emergency room patients reported having care stopped or denied.8

1.1.2 Human Rights Law

Human rights laws in every jurisdiction in Canada prohibit discrimination against people based on certain listed grounds, such as sex, ethnic origin, religion, disability or sexual orientation. For example, the Canadian Human Rights Act lists 11 grounds for which discrimination is prohibited. These laws provide complaint mechanisms that individuals or groups may follow when they believe that they have been discriminated against in the provision of services, accommodation and employment. The Supreme Court has held that the laws are “quasi-constitutional” and that other laws must be interpreted in ways that are consistent with them.9

The Canadian Human Rights Act prohibits discrimination by federally regulated employers or service providers, including federal departments, agencies and Crown corporations, First Nations governments and private, federally regulated companies, such as banks, trucking companies, broadcasters and telecommunications companies.10 However, because matters involving property, civil rights and local matters have been placed within the jurisdiction of the provinces in Canada’s constitution, most human rights complaints pertaining to the provision of services, accommodation, employment or the management of public spaces and facilities are made under provincial human rights laws.11

While discrimination is generally prohibited by the Canadian Human Rights Act, section 15 does provide for certain exceptions. For instance, section 15(1)(a) states that if an employer can show that an occupational requirement is “bona fide” (i.e., necessary to the job), the requirement is not a discriminatory practice. Section 15(1)(g) adds that there may be a “bona fide justification” for any denial or differentiation made in the provision of goods, services, facilities or accommodation. In addition, section 15(2) states that to establish such a bona fide requirement or justification, it must be shown that the “needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”12 In other words, to avoid a discriminatory practice, persons or groups that have a duty to do so must take reasonable steps to accommodate others, but they may be able to establish that there are valid reasons why the particular accommodation being sought is too onerous or difficult to provide.

1.1.3 Historical Developments

When the Canadian Human Rights Act was passed in 1977, there was no ground included in the list of the prohibited grounds of discrimination that would protect the rights of gays, lesbians or any other sexual minority. Nor did the equality rights provisions in section 15 of the 1982 Canadian Charter of Rights and Freedoms list any sexual minority rights as enumerated grounds for protection. However, in 1992, the Ontario Court of Appeal in Haig v. Canada13 held that sexual orientation constitutes an analogous ground of discrimination under section 15(1) of the Charter and should be considered as an addition to the explicitly listed grounds. The federal government did not appeal the decision, and the Canadian Human Rights Commission began accepting complaints of discrimination based on sexual orientation in 1992. In 1995, the Supreme Court of Canada also confirmed that sexual orientation was an analogous ground in Egan v. Canada.14 It was added to the list of prohibited grounds in the Canadian Human Rights Act in 1996.

The recognition of the rights of gays and lesbians has evolved in some measure through the recognition of the right to be free from discrimination based on sexual orientation.15 Sexual orientation does not necessarily protect those whose gender does not align with their sex assigned at birth, or who do not consider themselves to fit in with conventional conceptions of gender. Bill C-16 seeks in part to add the grounds of gender identity and gender expression to broaden the recognition of the rights of other members of sexual minority groups.

Discrimination against transgender or transsexual individuals has been identified by human rights tribunals and courts on the grounds of sex or disability, though the use of the latter has been controversial. Cases have involved the right of a person to access the gender-specific bathroom of his or her chosen gender,16 the right of a person to volunteer for an organization that provided services to women who were victims of male violence,17 the right to be free from discrimination in housing,18 and the right to claim refugee status in Canada,19 among others.20

In 1999, a panel established by then Minister of Justice Anne McLellan and chaired by former Supreme Court Justice Gérard La Forest conducted a comprehensive review of the Canadian Human Rights Act. The panel’s report, Promoting Equality: A New Vision, included 165 recommendations, including “that gender identity be added to the list of prohibited grounds of discrimination in the Act.” The report noted that while, in practice, “transgendered individuals are protected from discrimination on the ground of sex or the combined grounds of sex and disability,”

to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issues to remain invisible. While these issues are clearly related to sex, this ground may not cover all those encountered in the transgendered experience, especially in the decision to undergo a sex change and its implementation. To say transsexualism is a disability seems to make it a medical matter rather than a matter of life experienced in the opposite gender.21

The review panel indicated that the concept of gender identity should be developed “case by case,” and that, while there may not be “a great many cases” filed on this ground, “gender identity” should nonetheless be expressly added to the Act, since the cases that do arise can cause “substantial harm to those affected, and legal protection is warranted.”22

1.1.4 Provincial and Territorial Approaches to Gender Identity and Gender Expression

Most Canadian provinces and territories now list “gender identity,” and some have also included “gender expression,” among the prohibited grounds of discrimination under their human rights laws. The exceptions are New Brunswick, Nunavut and Yukon. The human rights laws in the Northwest Territories,23 Saskatchewan24 and Manitoba25 prohibit discrimination based on “gender identity,” while the human rights laws in British Columbia,26 Alberta,27 Ontario,28 Quebec,29 Prince Edward Island,30 Nova Scotia,31 and Newfoundland and Labrador32 prohibit discrimination based on both “gender identity” and “gender expression.”

Ontario’s Education Act33 also includes references to both “gender identity” and “gender expression” in the contexts of addressing bullying in schools and promoting positive and supportive school environments. Manitoba’s Public School Act calls on school boards to accommodate pupils who wish to establish activities and organizations that promote “the awareness and understanding of, and respect for, people of all sexual orientations and gender identities.”34

While most provinces have amended their human rights laws to provide explicit protection, as noted above, gender identity or gender expression had previously been implicitly included in some jurisdictions under other explicitly enumerated grounds, such as sex, as a matter of policy or as a result of court decisions.35 New Brunswick and Yukon’s human rights commissions have published guidelines on human rights that indicate that gender identity discrimination is a form of sex discrimination.36

1.1.5 Previous Bills

Various private members’ bills have been introduced in Parliament since 2005 to add both “gender identity” and “gender expression” to the list of prohibited grounds in the Canadian Human Rights Act, and some of them sought to amend the Criminal Code as well. All of these bills died on the Order Paper,37 with the exception of Bill C-204 which, as explained below, is a reintroduction in the 42^nd Parliament of Bill C-279 from the 41^st Parliament.

Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity) was introduced in the House of Commons on 21 September 2011 by Randall Garrison, Member of Parliament for Esquimalt–Juan de Fuca, British Columbia.38 The bill was later amended by adding a definition clause for “gender identity” and by removing the term “gender expression.”39 The bill was adopted by the House of Commons on 20 March 2013 by a vote of 149 to 137.40

This bill ultimately died on the Order Paper before being put to a vote in the Senate upon the prorogation of the 1^st Session and then the dissolution of the 2^nd Session of the 41^st Parliament.41

On 9 December 2015, during the 1^st Session of the 42^nd Parliament, Randall Garrison reintroduced the original text of Bill C-279 as Bill C-204, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).42 This version of the bill does not include a definition clause, and it includes both “gender identity” and “gender expression.” At the time of writing, the bill had received first reading in the House of Commons. This bill is identical to Bill C-16, except that it lists the two terms separately, dividing them with a comma, whereas Bill C-16 places the word “or” between the two terms, thereby linking the terms more closely together.

2 Description and Analysis

2.1 Amendments to the Canadian Human Rights Act

Bill C-16 adds references to “gender identity or expression” to two sections of the Canadian Human Rights Act.

The first amendment is to the purpose of the Act, found in section 2, which currently reads:

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, 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.

Clause 1 of Bill C-16 adds “gender identity or expression” to the list of grounds upon which discriminatory practices may be based.

Section 3(1) of the Canadian Human Rights Act enumerates the prohibited grounds of discrimination for the purposes of the Act (which are the same as those included in section 2 of the Act). Clause 2 of the Bill adds “gender identity or expression” to this section as an additional prohibited ground, after sexual orientation.

2.2 Amendments to the Criminal Code

The bill also adds references to “gender identity or expression” to two sections of the Criminal Code, one dealing with hate propaganda and the other with sentencing provisions for crimes motivated by hate.

As explained below, the amendments add “gender identity or expression” to the identifiable characteristics of a group that are protected from hate propaganda (see section 318(4) of the Criminal Code). The term “hatred” has been considered in several Supreme Court of Canada decisions, including R. v. Keegstra:

Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.43

2.2.1 Hate Propaganda

Criminal offences related to hate promotion are set out in sections 318 to 320.1 of the Criminal Code. Section 318 makes it an offence for anyone to advocate or promote genocide, which is defined as acts committed with an intent to destroy in whole or in part an identifiable group by either killing its members or inflicting on them such conditions as to deliberately bring about their physical destruction. Those found guilty may be punished by up to five years’ imprisonment.

Section 319(1) makes it a criminal offence to incite hatred against any identifiable group where this is likely to result in a breach of the peace. Section 319(2) makes it an offence to communicate, except in private conversation, statements that wilfully promote hatred against an identifiable group, whether by telephone, broadcasting or other audible or visible means.

Prosecutions of sections 318 and 319(2) require the consent of the provincial Attorney General.

Section 319(3) includes various defences that are available for those charged under section 319(2):

• that the communicated statements are true;
• that an opinion or argument was expressed in good faith and either concerned a religious subject or was based on a belief in a religious text;
• that the statements were relevant to a subject of public interest and were on reasonable grounds believed to be true; and
• that the statements were meant to point out matters that produce feelings of hatred toward an identifiable group and were made in good faith for the purpose of removing those matters.

Sections 320 and 320.1 of the Criminal Code allow for judges to issue orders for the confiscation of any form of hate propaganda that if communicated would lead to an offence under section 319. The consent of the provincial Attorney General is again needed for these provisions to be used.

The offences in these sections require that an identifiable group be targeted. Section 318(4) defines an “identifiable group” for all these provisions as being any section of the public distinguished by race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability. Clause 3 of Bill C-16 adds “gender identity or expression” to this section.

2.2.2 Sentencing Principles

Clause 4 of the bill amends section 718.2 of the Criminal Code, which sets out certain principles to be taken into account during sentencing for an offence, including that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” Currently, under subparagraph 718.2(a)(i), the following is deemed to be an aggravating circumstance: “evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.” Clause 4 adds “gender identity or expression” to this list.

Notes

*  Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]