And the transphobia entrenched in Canadian public policy

Bill C-389 was introduced by New Democratic Party (NDP) Member of Parliament (MP) Bill Siskay of riding Burnaby-Douglas in British Columbia. In a telephone interview with Siskay, he explained why this is more than just a 'bathroom bill' – it's a matter of fundamental protection from discrimination at home and in the workplace for trans people.

Beyond the big project of putting Bill C-389 forward, Siskay acts as an ally to the transgender transsexual (often referred to under the umbrella term "trans") community by speaking with the media and at events, as well as supporting other concerns of trans people, such as access to public health coverage, gender reassignment surgery, and related therapies. His opinion on these issues carries weight as he has worked closely with the community and has been a part of their work for social change and for full equality.

The impetus and development of the bill was born out of what Siskay had heard in person from the trans community across the country as well as through online consultations. By his third parliament, he was able to bring forward Bill C-389 to engage in debate last fall.

To amend the Canadian Human Rights Act was the primary priority decided upon between Siskay and the trans community. An amendment to the Criminal Code of Canada regarding sentencing and hate speech was the second priority. Bill C-389 combines both amendments.

To extend the Criminal Code of Canada and the Canadian Human Rights Act to include freedom of gender expression and identity would make workplace and housing discrimination illegal. Such discrimination is very real for trans people, such as Mercedes Allen, who, in support of C-389 states that, "Unfortunately, it becomes necessary for the government to send a signal that it is not acceptable to make decisions that would marginalize or exclude people [on the basis of gender expression]."

When Allen transitioned, the company she worked for in Edmonton did not have a policy on transgender people because they felt that to be in line with Canada's existing human rights legislation was enough. Not only did her company fail to implement a policy once Allen transitioned, but she was demoted and paid less than the new employees whom she trained. After her transition, Allen also suffered housing discrimination. Although the neighbours in her apartment understood and remained friendly, her landlord doubled her rent, while keeping the rent of the rest of the tenants the same.

Some critiques of this bill are born of scepticism of what any legal change can do to truly achieve self-determination for oppressed groups such as trans people. However, Siskay believes that "human rights legislation does have an important place in our society in terms of establishing the parameters of who's in and who's out."

The current Canadian Human Rights Act does not explicitly include transgendered and transsexual Canadians. Although Siskay admits that, "[formal inclusion] doesn't solve all of the problems of trans people, not by a long shot," he stresses the importance of minority groups being able to see themselves directly in national legislation.

Siskay also sees great value in explicitly including trans people in the Criminal Code of Canada "so that there is no question when they feel that they have suffered discrimination, that they have recourse. I also think that it is important that society knows that they are directly included. That there is no guessing."

Through recognition in the Criminal Code of Canada, there would be a framework that recognizes that hate crimes towards trans people are specific and that they merit attention. Within this framework, trans experiences of hate speech, assault, and other criminal offences committed against them can be formally taken into consideration. So, although legal changes are limited in assuring self-determination of oppressed groups, Siskay believes "that it makes a clear statement; I think it gives recourse in some very specific areas in federal jurisdiction where there might be job discrimination or discrimination in government programs."

Although prevalent discrimination and oppression of trans people occurs in our society today, Siskay does not believe that the legal changes proposed by C-389 come before societal changes. He cites many places in Canadian society where trans people have raised and debated the issue and where full equality, rights, and participation has been recognized. Some communities, cities, institutions, corporations, and churches have accepted the place of trans people.

Siskay states that C-389 does not represent law "dragging society along" but society dragging legal institutions as well. "I think there's a bit of both ends going on."

He also reminds us of the human rights complaints from trans people that have been successful, claiming that although it is not perfect, the legal system can catch up on things. With regards to the filing of human rights complaints under the claim of disability, Siskay states that the debate is fully engaged within the psychological, psychiatric, and medical community, and he notes that it is in a manner reminiscent of the debate in the '70s and '80s around whether or not homosexuality was a disease.

Clearly, Siskay does not believe that to be conscious of one's gender is a medical condition, and he hopes that Bill C-389 will help resolve that question. The settling of the medical debate will "move society's understanding and will move the question of equality of transgendered and transsexual people in a very significant way."

Siskay is optimistic about the passing of the bill, although there is still a significant amount of opposition to Bill C-389, largely coming from the Conservative Party. Conservative members have raised two issues as to why they disagree with the passing of the bill. The first question raised was that of redundancy, claiming that trans people are already covered on the basis of sex. Siskay admits that there is some truth to that, as successful claims have been made using sex, however he maintains the great value in making the law explicit.

The second question raised by the Conservative Party was the lack of a definition of the terms "gender identity" and "gender expression." However, Siskay points out that if you look at the Canadian Human Rights Act, other prohibited grounds of discrimination are also undefined, such as sexual orientation. Siskay claims that that was done intentionally.

"They are intended to be what some people call moving definitions [which] draw on common usage, that draw on jurisprudence, that draw on the work of human rights commissions in the courts, that draw on the latest conversation around those aspects of our lives."

Siskay claims that that is why definitions of gender identity and gender expression are not included in Bill C-389. Notwithstanding, Siskay affirms that there is no question about what the current definition of gender identity is, and that there are many appropriate resources for people to look to if they need to make a determination regarding the change of the law.

Siskay also points out that the same argument of the lack of a definition was made when sexual orientation was added to human rights legislation.

With the questions of redundancy and the lack of a definition now accounted for, opponents of Bill C-389 have begun to grasp at straws. This was evident in their coining of Bill C-389 as "the bathroom bill," making the claim that to pass Bill C-389 would cause danger to women and children within gendered spaces, such as washrooms. In response to this claim, Siskay states,

"With the whole question of bathrooms, it is something that came up late in the debate. It is something that comes up in these debates in almost every jurisdiction. I think it's a complete red herring, it's alarmist; there is no evidence that these laws have accommodated or enabled people who are trying to attack women. There's nothing that accommodates pedophilia or voyeurs or exhibitionists as a result of these laws. It doesn't change what's appropriate or inappropriate in a gendered space. It doesn't change the criminal law at all with regard to harassment or assault."

Siskay goes on to state that alarmist arguments such as these are often made whenever the full human rights of a minority are addressed in our society, citing the almost identical arguments made around full equality for gay and lesbian people, and for black Americans in the United States.

Although the claim that Bill C-389 would create danger in places like public washrooms is completely unsubstantiated, Siskay believes that the explanation of why these claims are unwarranted is very necessary. Where there are people who do not have experience with trans people and are left to deal with stereotypes, false information such as that surrounding "the bathroom bill" can seize the argument and it can get stuck there. Siskay firmly states that although untrue, it is an issue that needs to be addressed so that the public can be informed and that appropriate decisions can be made.

As for the fate of Bill C-389, Siskay states that it is not likely to get all the way through parliament before an election is called. However, he hopes to get the third reading done and have the bill pass through the House of Commons before that time. We should know the outcome of the third reading by early March.

Charles McVety, the president of Canada Family Action Coalition, Canada's largest anti-gay lobby group, has ramped up his opposition to Bill C-389. The bill, if passed, will prohibit discrimination on the basis of gender identity, giving transgendered men and women equal rights in housing, employment, and public services.

Without specific recourse to human rights complaints, trans people have filed complaints under the categories of sex and of disability.

Although some cases have been successful, the reality remains that transsexual and transgendered identity does not constitute disability makes appropriate the explicit category of gender in Canadian human rights legislation.

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