This article originally appeared on VICE Canada.
New documents obtained by VICE show just how the federal government has gone about blocking a bill that would afford human rights protections to trans people, and their concern with having a "societal debate" over protecting trans people from hate crimes. But Randall Garrison, the bill's proponent, might just trump them yet.
For a piece of legislation that the government said it held no formal position on, the Justice Department put a lot of work into making sure Conservative MPs knew what to think about the bill.
While 18 Conservatives stood to support the bill, and a handful rose with legitimate objections, legions more stood and voted against the NDP's legislation at the government's behest in an effort to shoot down provisions that would amend the Human Rights Act and Criminal Code to ensure that trans people are afforded the same protection that other minorities already enjoy.
The handful of documents obtained from the Department of Justice—the ones that weren't withheld—reveal just what talking points were issued to Conservative MPs and ministers.
But most of Conservatives who supported the bill didn't back down. So, as VICE reported in June, the Conservatives are using the Senate to kill the bill.
This fight, however, ain't over 'til it's over.
"Obviously, there are differing and deeply-held views…"
It's common for departments to draw up so-called "one-sheeters" to prepare government spokespeople to debate legislation in the House of Commons. They're four or five bullet points, set in huge font, that MPs can refer to while they speak about the bill.
When it's a matter of government policy, these talking points lay out the government's line. C-279, however, is a private member's legislation that the government took no formal position on. A smattering of Conservative MPs, in fact, fervently endorsed the bill. So it's curious that the federal government drew up a draft of strongly-worded one-sheeters to dissuade MPs from supporting the bill.
VICE obtained only 49 pages of the documents prepared by the department, many of which were redacted, while the government refused to provide another 94 pages, citing sections of the Access to Information Act that allow the government to withhold documents that include advice to a minister.
C-279, of course, would protect trans people from hate propaganda and violent crimes under the Human Rights Act and Criminal Code. In explaining why that's a bad thing, MPs were issued talking points to riff on four themes: the government does not support the bill; anti-discrimination protections for trans people already exist; the Criminal Code already considers violence against trans people a hate crime; and 'gender identity' is too vague a term, and shouldn't be put into law.
There's been some speculation that political matters may have influenced the government's position on the bill, such as lobbying from social conservative groups who opposed the bill, or opposition from within the Conservatives' own caucus. But, then again, the Harper Government has always ignored social conservative criticism when campaigning for gay rights. The real issue may have more to do with the headaches that could come with empowering trans people to challenge the government to fund sexual reassignment surgery and to let trans people change the gender listed on official documents.
While many Conservatives supported the bill— "the bathroom bill" — in saying it would allow sexual predators into women's washrooms.
The talking points drawn up from the department note that "vagueness of the term 'gender expression'—which is a term that was later removed from the bill—"would likely cover such behaviours as cross-dressing. However, it is not clear how broadly the tribunals and the courts would interpret this novel ground."
In a seeming nod to the social conservatives who railed against the bill and its supposed coverage for pedophiles and peeping toms, one talking point reads: "obviously, there are differing and deeply-held views on this issue… I look forward to the outcome of this debate."
Proponents of the bill have long faced those accusations, and reject them.
It's true that Canada's Human Rights Tribunals have tended to accept complaints from trans Canadians. One such complaint resulted in a tribunal declaring that Ontario must allow trans people to change the identity on their government documentation without needing to have undergone sexual reassignment surgery, so long as they have a letter from their doctor.
Four provinces—Ontario, Nova Scotia, Manitoba and the Northwest Territories—have amended their provincial human rights legislation to include gender identity. In Ontario and Nova Scotia, gender expression is also protected and there have been no rash of sex assaults.
Not all other provinces, however, have adopted this sort of legislation, and changing identification documents can be a real hurdle for trans people in those provinces. Federally, trans people can't change the sex listed on their passport unless they undergo surgery. That can cause problems.
Arguably the bigger issue here is these protections aren't really codified, as it requires a court or tribunal to agree that these protections have been codified. While one judge may read between the lines and find that transgender people suffer from a disability, another judge may not. There's also the obvious problem that labelling trans people as disabled is quite offensive. Other judges have used the grounds of 'sex' to afford protections to trans people, which is also an imperfect fit.
Advocates say that the legislation could act as a bat signal—telling trans people everywhere that they are protected.
To an extent, the government agrees. In a background note for MPs, a lawyer in the Justice Department noted that "adding the term 'gender identity' would not significantly change the state of law, but would have symbolic value and signal parliamentary support for the direction already taken by the Canadian Human Rights Tribunal and other human rights tribunals in Canada."
In these documents there are few mentions of the other critically important aspect of C-279: it would make murdering a trans person, on the basis that they're a trans person, a hate crime.
While there's been a number of cases involving violence against trans people in Canada, including several unsolved murders, there appears to be no instances where a court found the violence to constitute a hate crime.
In one case from last year, Steven Frederickson was acquitted of second-degree murder—though found guilty of manslaughter—after being accused of murdering a trans man, who Frederickson says raped him. Frederickson was convicted of beating him to death and dumping the body in a wooded area.
There's also the 2003 murder of Shelby Tracy Tom, a trans sex worker who was picked up by Jatin Patel and taken to a North Vancouver motel room. Patel confessed that, when he noticed the scars on Tom's body left over from her sex change operation, he strangled her to death. Patel wrapped the body in a mattress cover and dumped the body in a shopping cart behind the motel. Despite the fact that Patel agrees that the scars spurred his attack, the judge rejected the Crown's motion to have the murder considered a hate crime—he was convicted of manslaughter and sentenced to nine years in prison, only four-and-a-half of which he will actually serve.
The judge found that Patel panicked and lashed out, and therefore couldn't be considered culpable for homicide. It's a version of the 'gay panic' defense, where the victim essentially shares blame for their own murder, because they 'provoked' the murderer with their sexuality (or, in this case, their gender identity.)
The gay panic defense has been almost entirely rooted out of the Canadian justice system, with only the infrequent case popping up. That's thanks, in no small part, to 2003 amendments that added sexual orientation as a protected class to the Criminal Code.
The violence that trans people face is not minor. The Trans Murder Monitoring Project identified more than 1,100 murders of trans people over a five-year period, in 57 different countries, and found that the numbers have been rising. The real number, given that the person's gender identity isn't always reported, is likely much higher.
Most Canadian police services don't report the number of hate crimes against trans people — though they would be required to if C-279 ever becomes law — but most studies have shown that trans people in Canada face high levels of violence and discrimination. One study found that one-fifth of trans people surveyed in Ontario faced physical or sexual assault because they were trans.
A trick up their sleeve
The bill's sponsor, NDP MP Randall Garrison, isn't giving up.
Garrison got the bill passed through the House of Commons, and even managed to lobby the Senate to support the bill.
As VICE reported in June, that effort was frustrated by a few ostentatious senators. While those senators maintained that they were acting independently, free of control from the Prime Minister's office, these documents are a pretty clear indication that the government provided lots of direction.
Given that, the bill will likely never pass the Senate.
Even so, Garrison is going to try for a Hail Mary.
He had previously tried to amend C-13, the Conservatives' cyberbullying bill, to include gender identity. The bill, after all, amends the Criminal Code to make it illegal to incite hatred or produce hate propaganda against someone based on their national origin, age, sex, and disability.
Garrison tried to add gender identity to that list when he was in committee. That effort was kiboshed by the Conservatives.
He's taking another kick at the can. When C-13 comes back before the House of Commons, Garrison is going to move the amendment again — something that the Speaker will, likely, tell him is against the rules.
Garrison's defense will be this: the House of Commons has already passed C-279, and expressed their will to add gender identity to the Criminal Code. The committee then rejected it. That meant that the members on that committee were defying the edict set out by Parliament's main body, which is a legislative no-no.
If the speaker accepts that logic, there's a very good chance that the amendment will be supported by the same gaggle of receptive MPs that passed the original version of C-279.
And, while it may not be everything that C-279 promised, it's a first step.
There, however, is one more roadblock. In these talking points, there is an "anticipated question," usually prepared for ministers in order to field any question that may come forward, on the obvious hypocrisy of adding protections for some Canadians, while refusing them for others.
The "suggested answer" is telling.
"The government is seeking to add age, sex and disability to the hate speech provisions in the Criminal Code… because it was felt that hate speech is better addressed through criminal law. Given that this is initiative seeks only to change the source of protections against hate speech, there is no need for a societal debate on the content of three probated grounds of discrimination."
Because apparently we require a "societal debate" before protecting trans people.
Follow Justin Ling on Twitter: @justin_ling
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