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You know that classic Charlie Brown gag in which he tries to kick a football that Lucy is holding, only to have it pulled away at the last second as he lands flat on his back? The feeling must be a familiar one for the transgender community in Canada, as the government has—once again—thwarted efforts to protect them from discrimination and hate crimes.
The bill, now known as C-279, has been around for more than a decade. Colloquially, it’s known as the Trans Rights Act, and it was nearly passed through Parliament. But thanks to the work of two unelected senators and the inner machinations of the Harper government, the bill has been stuck. And proponents are not optimistic. “It’s dead,” Randall Garrison, the member of parliament championing the bill, told me. “I’ve given up hope.”
The football has been pulled away. Again.
Snakes and Ladders
While the trans community still struggles for acceptance, the bill was supposed to afford them the most basic of rights. The bill aims to protect trans people from getting fired because of their identity, from being kicked out of their home, or from being beaten or murdered.
It’s a pretty simple concept: It would add "gender identity" as a protected group under the Human Rights Act and make it an identifiable group under the Criminal Code.
That means trans people could complain about discrimination against the Human Rights Tribunal, that advocating for the genocide of trans people would be illegal, and that attacking or murdering a trans person would be considered a hate crime.
Adding protections for trans people seems like a no-brainer. But that logic was lost on many who came across the bill during its arduous slog through the parliamentary process.
When it was first introduced in 2004 by New Democratic Party MP Bill Siksay, the bill had no hope of passing. But slowly opinions have changed, despite some heavy opposition from members of the Conservatives and Liberals. Social conservatives have said that the bill will allow men to enter women’s bathrooms. That charge, trans activists say, is entirely inaccurate and wholly offensive.
That sort of obtuseness defined much of the debate. But after an intense lobbying campaign by a handful of NDP MPs, something incredible happened: The bill passed, making it one of very few opposition bills to pass under the Harper majority. Eighteen Conservative MPs, many of them ministers, voted for the bill. Among them: Finance Minister Jim Flaherty, Foreign Affairs Minister John Baird, Labor Minister Lisa Raitt, and Heritage Minister James Moore. Public Safety Minister Shelly Glover also supported the bill, and turned into one of its most spirited supporters.
“When people say it's symbolic only, I disagree wholeheartedly. I want transgendered individuals to feel they can go to a police service, that they can go to a court, knowing full well that gender identity is in the Criminal Code and the Canadian Human Rights Act,” she told a committee.
There was some jubilation. It was passed in March, meaning that it was a sure shot to get passed through the Senate and become law before the House rose for the summer. But it didn’t come to a vote. Nancy Ruth—Canada’s only openly gay senator—introduced an amendment to the bill. Senator Neil Plett, a vocal opponent of the bill, adjourned the debate. A week later, the senators broke for the summer, and the bill never came to a vote.
And when the prime minister prorogued parliament in the fall, the bill had to start over in the senate.
“If you could use a metaphor of snakes and ladders—it goes back a few steps,” one staffer explained to me.
So things started over last October and the interminable march forward for the bill began again. It was referred to committee in early June. There is no chance that the bill will be referred back to the Senate before summer break. There is virtually no hope that it will come back by September. Most don’t think it will be passed before Christmas. Senator Ruth thinks it might not come forward before the next election.
The shady way in which the bill has been punted time and time again is making one thing abundantly clear: Someone important doesn’t want this bill to pass.
A Game About Power and Influence
Senators Plett and Ruth have been the two vocal opponents to the bill.
I sat down with Senator Plett to ask about his objections.
“The pedophiles, the Chris Hambrooks of the world, can use this law to their advantage,” he said. Problem is, the courts decided that Hambrook was not legitimately transgendered, and was sentenced to an indefinite jail sentence for being a dangerous offender.
In practice, adding "gender identity" to the Human Rights Act allows rapists to sneak into women’s shelters in the same way that it allows neo-Nazis to claim that cross-burning is allowed because it’s part of their religion.
But Plett has always positioned himself as thoughtful about the bill. “If we want to look at a bill [that prevents workplace discrimination], I would look at with open eyes,” Plett told me. I pointed out to him that the sections of the bill that amend the Human Rights Act aim to do exactly that. Three provinces and one territory already have similar changes to their provincial human rights legislation, and they have not permitted sexual assault like what Plett describes.
“Then let’s take the Criminal Code aspect out of it,” he responded.
I asked him whether the Criminal Code should cover hate crimes. As one study points out, some 20 percent of trans people report being physically or sexually assaulted. "Do you support making hate crimes against trans people illegal?"
“I entirely, 100 percent support laws that deal with hate crimes,” he added.
I asked which sections of the bill he didn't support.
“The sections that make it absolutely open, or gives the right, for you or me, as a biological male, to go and say, ‘I want to stay in a women’s shelter,’” he said.
Senator Plett is the government’s lead on the bill in the Senate, and he will be sitting on the committee that studies the bill in the fall. Senator Ruth opposes the bill because she’s upset that the bill doesn’t contain protections for women—"sex" is not a an identifiable group in one section of the Criminal Code. “It’s quite simple: There’s no way, as a feminist for many, many decades, I’m going to accept a small group of women having protection in the criminal code without the majority having protection in the criminal code,” she told me.
Ruth also firmly believes that "gender identity" would not include women. She wants the word "sex" in the bill, or else there will be trouble.
“Sex is the word. Stop giving me this gender shit,” she said.
The two senators are the face of the bill. Senator Plett has continuously prolonged the debate, and Senator Ruth’s attempted hijack occurred just as the bill was supposed to come to a vote last year. It promises to do so again, if her concerns are not addressed.
But the two are not the sole reasons that this bill hasn’t passed.
“That this bill has been held up by the parliamentary process is accurate. So have other bills. Is there a discriminatory feeling in the Senate against people who are trans, on some people’s part? Maybe. Is it enough to defeat the vote? I don’t know,” Ruth said. She also identifies some resentment for the pro-Senate abolition NDP as one factor.
“They’ve been smearing us for a couple of years, like everybody else, and they want us to do their business?” She laughs. She also blames the Senate Liberals for dragging their feet.
I asked Senator Grant Mitchell, the Liberal proponent of the bill. He says Ruth’s assertion is “absurd.” Mitchell says he had 18 Conservative Senators ready to vote for the bill. He says the Senate Liberals prioritized the bill, in an effort to get it passed quickly. The Conservatives, he notes, could pass it within a week, whenever they want.
“It’s not us who’s stopping it,” Mitchell says. “The government is stopping it.”
Nancy Ruth put it bluntly. “This is a game about power and influence, eh?” she said. “One of the mistakes that the trans community has is that they think it’s all about them. It’s not really about them.”
It Was a Cute Trick
In what may be the most fitting display of sad irony, Garrison tried to find a backdoor for the changes, only to have the door slammed shut by some of the Conservatives who had helped him pass the bill the first time.
During debate on the Tories’ cyberbullying legislation, C-13 (the one that will give police unprecedented new powers), Garrison saw an opportunity. One section of the bill updates the Criminal Code to expand the definition of ‘identifiable group’ to add: national origin, age, sex, or mental or physical disability.
Garrison introduced an amendment to add gender identity to that list.
Bob Dechert, Parliamentary Secretary to the Minister of Justice, snuffed out that glimmer of hope.
“As Mr. Garrison will know, there was no witness testimony heard by the committee on this point. He's pointed out that this is contained in Bill C-279, which is currently before the Senate. Therefore we believe that it would be inappropriate to bring it here where we haven't heard witness testimony. We should allow the Senate to complete its work on that matter,” Dechert told the committee—the same committee that had studied C-279 twice.
The Conservatives killed a motion to protect trans people from hate crimes in a bill ostensibly about bullying. “If they wanted these provisions to go through, they had that change yesterday,” Garrison said the day after his amendment’s defeat. “They chose to vote it down.”
Garrison says it’s proof that the Conservative government is never going to pass C-279. The bill is dead.
VICE tracked down Conservative MPs David Wilks and Gerald Keddy, both of whom are on the Justice committee and who had supported C-279 when it was in the House of Commons. Wilks, for his part, says it was poor timing. He rushed out of committee just before the vote to watch the memorial for the three RCMP officers killed in the Moncton shooting. Wilks is a former RCMP officer.
Keddy was on the committee, and voted against the amendment. When asked why, he muttered, “Oh, yeah, yeah, yeah,” as he walked away, and into the foyer of the House of Commons.
Dechert, when asked, said it would be “inappropriate” and “unconstitutional” for the House to try and pass the changes in C-13, while C-279 still sits in the Senate. “It was a cute trick,” he says. But added: “The bill didn’t have anything to do with that,” referring to enshrining protections for trans people.
Minister Raitt, when asked, simply said, “You know how I voted last time, right?” before heading into the House of Commons.
Justice Minister Peter MacKay wouldn’t answer questions. Neither would House Leader Peter Van Loan, who is responsible for the government’s legislative agenda.
While it’s tough to divine just why the Harper Government would pull the football out every time, there may be a very simple explanation: money.
If Ottawa did insert gender identity into the Human Rights Act, the door would immediately swing open for trans people to have gender-reassignment surgery covered.
In Canada, the provincial health-care systems are not tremendously accommodating to those who want to undergo the medical sexual-reassignment process—whether it be only hormone therapy or full surgery. It is costly, requires extensive psychiatric evaluations, and has mind-numbing waiting lines. Many fly to Thailand and pay out of pocket rather than navigate the Canadian system. Some have used crowdfunding as a way to defray expenses. Many provinces still require the full surgical procedure in order to update your government documentation.
That’s to say nothing for the groups that the federal government provides health care to—soldiers, veterans, federal inmates, and refugees.
If C-279 passes, it would empower trans people to change the discriminatory hoops that they must jump through in order to obtain necessary medical procedures. Given that the medical procedures cost around $33,000 per person, that ain’t cheap.
Whatever the reason, the government seems determined to hold the bill, further delaying the long-anticipated dream for full, explicit protections for trans people.
Susan Gapka is the founder of the Trans Lobby Group. She’s long been a champion of the bill, and its provincial equivalents. Thanks to its Ontario counterpart—referred to as Toby’s Act—Gapka has been training governments and police services on how to establish trans-friendly policies.
“I was more optimistic, myself, previously,” says Gapka of C-279. “A Stephen Harper majority was the worst-case scenario for this bill.”
The optimism of having the bill passed through the House appears to have dissipated.
“There seems to be someone ordering this stuff,” Gapka says. But she, and other trans activists in Canada, aren’t giving up. She admits, at this point, the only real option on the federal level appears to be to replace Stephen Harper.
So once again, the trans community will have to get up, dust itself off, and take another kick at the football. Follow Justin Ling on Twitter.