Congratulations, even if I’m annoyed by Massachusetts being left behind in this. We can’t be too far behind you guys, though.
Mine didn’t, which disappoints, but doesn’t surprise me. I hate living where I do every election, when the majority keeps voting the Cons in.
Sorry, I’ll try not to belittle the Canadian government anymore. It’s just so tempting a target.
The argument - well, one argument, the argument that isn’t gross - against C-389 is that it effectively does nothing and has no clear purpose, since precedent has already been set in courts that extend legal protection from discrimination to the transgendered. The courts and human rights tribunals have on a number of occasions interpreted provisions against gender and sexual orientation discrimination to include discrimination against the transgendered. As a matter of fact, C-389 doesn’t even used the terms “transgendered” and “transsexual,” despite the way matt words his OP.
There is something to be said for the argument that Parliament should not be passing laws that are vaguely worded and may not serve any definable purpose.
Of course, the argument against that argument is that if it doesn’t do anything (and truth be told, it doesn’t) it’s still symbolically the right gesture and so, hey, why not? So I say why not, and support its passage. But this isn’t some huge substantive blow for equality; it won’t have any practical effect.
Nice thing to see. Congrats
Knock it off.
No warning issued.
twickster, MPSIMS moderator
No, it’s intentionally worded as broadly as possible to encompass the largest community of people discriminated against, including transsexual, transgender, genderqueer, gender-variant, and gender-non-conforming people. Also, the argument was raised that the terms aren’t defined in the bill, but none of the prohibited grounds of discrimination in the Canadian Human Rights Act are defined.
At certain times, rulings have found that discrimination against transsexual people is prohibited by the ground of sex. What isn’t clear is to what extent that extends to other people whose gender identities and gender expressions are marginalized.
For example, in 2008, a cis woman was ejected from a restaurant in New York City after a complaint was made that she had used the women’s washroom by someone who thought that she was male. She sued for discrimination using the city’s protection from discrimination on the basis of gender presentation and obtained a settlement. A law professor who commented on the case stated that if she had had attempted to use New York State’s ban on sex discrimination, she would not have had as good a chance of succeeding.
In 2000, a report by former Supreme Court Justice Gérard La Forest on the Canadian Human Rights Act recommended adding gender identity to the Act, noting that “to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issues to remain invisible.”
It’s also important because explicit inclusion will make it clear that trans and gender-variant people are protected by the Act, a boon for education initiatives of all kinds, both for trans and gender-variant people about their own rights, and for others about respecting the rights of trans and gender-variant people. As Bill Siksay said, trans people should not have to think their way into protection using grounds that were originally drafted to protect other groups in society; a right that has to be explained isn’t very effective. It’s much stronger to be able to point to it and say “Parliament has explicitly chosen to protect these people” than it is to say “The court ruled in Whoever v. Canada that we’re protected. Probably.”
Senate, let the bill pass. It’s the right thing to do.
These why not use those words and define them?
Look, I’m a pretty smart and well-read guy, and “Genderqueer” isn’t even a word to me. It’s not in the dictionary and my attempts to come up with what it means have been met with a lot of conflicting versions. You’re the only person I’ve ever heard or read use it. Most importantly, though, if that’s the intent, then why isn’t it in the law?
I’m all for equality, as you should know, but I’m simply trying to play an honest devil’s advocate here, if such a thing can be done, and point out that there is a valid argument to be made here about how we legislate against discrimination.
The problem with creating an endless list of things that you can’t discriminate against is that you by extent create a list of things you CAN discriminate against, and you also create an immense grey area where it’s unclear as to what can or can’t be gotten away with, especially when you do a shitty job defining your terms, as this bill does. What I would submit to you is that C-389 accomplishes absolutely nothing except to make people feel better symbolically. Now, that might in itself be a good thing, of course. And your point about the educational value of the Act is a very solid one. Based on those two points, I’d support the passage of this law, though I would have written it a hell of a lot better.
This might be an interesting example but (a) I don’t know what “cis” is and (b) New York City is not in Canada and © you can’t even demonstrate the law failed here, because she won her case. Your point here is that a lawyer hypothesized she wouldn’t have won the case had it gone through a court it didn’t go through and was decided based on law it wasn’t actually decided by.
I absolutely, wholly, 100% agree that the transgendered face discrmination and that the law has failed them in the past. I just don’t think C-389’s going to change that, to be honest, as opposed to existing law.
Of course, my inclination with regards to anti-discrimination law is that it should be heavily reworded and rethought. If you think about it our discrimination laws are, really, a series of patches. Religious tolerance is good, let’s slap some spackle in there… whoa, women can’t vote, let’s fix that… whoa, racism’s bad, let’s fix that with a little patch here… oops, we forgot gay people, let’s throw that in somewhere. I’ve always found it utterly bizarre that it’s rightly illegal for, say, an employer to discriminate based on whether you are black, or pregnant, or in a wheelchair, or a Jew, or any number of protected classes, but in theory COULD discriminate based on any number of positively insane and equally unfair distinctions, such as whether you’re a hockey fan or not, or whether you like Coke or Pepsi, or whether or not you belong to the NDP, and on and on. Of course, the reason those things aren’t part of the legislation as it stands is that they haven’t been identified as social problems worth the effort.
But… I’ve always wondered if there can’t be some way to create legislation worded in such a way as to prohibit discrimination on the basis of any unfair prejudice or distinction.
You answered that in your own post — if by making a laundry list of those who cannot be discriminated against by implication assumes everyone else can be discriminated against, then you obviously need a law to list those who CAN be discriminated against (e.g. the incompetent and the jerks). Anyone else cannot be. I would suggest that this discrimination list be entirely behaviour-based, or even state that you can discriminate based on behaviour but not on identity (real or perceived) or appearance.
That’s easy: because the CHRA is written not to say “Do not discriminate against these groups” but “Do not discriminate on these grounds.” It doesn’t say “It is illegal to discriminate against black, Asian, Native, female, gay, lesbian, bisexual, …” people. It says, “It is illegal to discriminate on the basis of race, sex, sexual orientation…” The identities I named earlier are each differentiated by their gender identity or gender expression. That’s why the bill is written the way it is.
If indeed we wrote “It is illegal to discriminate against transgender or transsexual people,” that would suggest that it is in fact legal to discriminate against anyone who is discriminated against because of their gender identity or expression, but does not identify as transgender or transsexual. (Generalize as necessary.)
Yes, that is my point. The point is she won because the law was written as we propose that it be written in Canada, instead of the way the law is currently written; since that’s a desirable outcome, it militates in favour of the change we wish to make. (Cis means not trans; the majority, who identify with the gender assigned at birth.)
RickJay, you’re asking two different questions: why are the prohibited grounds of discrimination not defined in the CHRA? And, why are there specific grounds at all, rather than a general prohibition on unfair discrimination?
On the first question, it’s always a difficult choice when drafting legislation to determine how much detail to put into the defined terms. It’ a queztion of finding the right balance. Human rights law is a particularly difficult area, because it depends so much on the personal feelings, opinons and self-identification of the individual alleging the discriminating, and that of the person alleged to have discriminated. Discrimination claims also tend to be highly fact-specific. As a result the tendency in Canadian human rights statutes is not to try to define the terms, but to leave them to the ordinay dictionary definitions and common experience. That gives the tribunals and courts th gneral legislative framework, and allows themto develop the law against the facts of the cases as they come up. That’s the traditional common law approach. Legislaures don’t wantto take a highly technical, legalistic approach to human rights, compared to say the Income Tax Act. I would suggest that’s particularly appropriate for sexual matters, given the highly personal nature of the issues and the great range of possible behaviours and self-identification.
With respect to the laundry list approach, rather than a general prohibition on unfair discrimination, I think you answered your own question: the prohibited vrou ds are those which have the most importance to society, and are considered the most harmful to individuals. Bear in mind that human rights acts inter ene in the ordinary activities of th citizenry, which raises the basic question: when is it appropriate for the state to intervene, and regulate the conduct of individuals, enforceable by awards of damages and potentially jail time in extreme cases? That’s why the laundry list approach: legislatures only focus on particular characteistics that pass a certain threshold of social importance.
As well, the laundry list approach answers the concern that you raised I your first question: the need for certainty in the law. Employers, landlords, and businesses providing services to the public need a reasonable degree of certainty to guide them. The laundry list approach provides that, where a general prohibition on unfair discrimination would not.
Note that there is one area where the general prohibition on discrimination is used : s. 15 of the Charter, which applies to governments, not individuals. That open-ended approach was taken for a couple of reasons. One is that it is much
more difficult amend a constitutional provision than an ordinary statute, so it makes sense to leave it open-ended, to take future developments in social values into account. The other mainreason is that since the Cjarter gives rights to individuals against the government, the concern about certainty is not as significant: the government is under a general duty to respect the equality of all it’s citizens, in a way that private businesses are not.
But one consequence of relying on general statements of equality is difficulty in application of the principle. Section 15 is one section of the Charter which has given the Supreme Court the most difficulty in allying since it came into force in 1985. And, in the UnitedStates, which has an even more generally worded equality provision (14th Amendment), the methodological difficulties are much greater. Search for a thread discussing the differences between strict scrutiny and medium scrutiny to seewhat I mean.
The final difficulty with an open-ended clAuse is that it puts greater authority into the hands of the tribunals and courts, as the debate about s. 15and sexual orientation shows.
Just wanted to add my congratulations to the rest. This is wonderful news!
That is a very subtle and important point.
Thanks. I thought as much from context, but it’s nice to have that confirmed.
Considering the terms “transsexual”, “transgender”, “genderqueer”, “gender-variant”, “gender-non-conforming”… I think we need an essay that defines these various terms, for those of us who grew up in bland suburbia where it was under the radar.
Is the basic difference between “gender” and “sex” that “gender” is mental and “sex” is physical? So, a “transsexual” person is one who has changed their physical sex? Would a “transgender” person be one who has changed their mental, uh, gender? (Is that possible?)
A friend who went from male to female, physically, told me that this was basically to make her body match her mind. (I met her before, didn;t see her for a couple of years, then ran into her after. The change was remarkable. People are far more fluid than I ever thought.
I guess this is all in the context of a culture that assumes that there are two and only two overarching ways to be, sexually (genderally?).
I just want to say thanks to Northern Piper - I love your clear, fact-based approaches to discussions like these. Canadian politics and law aren’t something I’ve spent a lot of time learning, but I always feel I’ve learned something from you, and more importantly more about my country. You are part of why I love these message boards!
(all that love…it is Valentine’s Day, after all! )
and yet, you decline to accept my views on the superiority of the Roughriders!
bythe way, sorry for all the typos in that post - still limited to the iPhone.
Laws don’t always use the specific terms used in popular speech. For example, human rights acts in Canada don’t use the terms gay, or bi, or lesbian, or even the more formal homosexual / hetrosexual. Rather they use the term “sexual orientation” to cover all of those terms - a general, broad term rather than specific terms that may not cover all of the different permutations of sexual orientation. As I mentioned in my earlier post, that approach gives the courts the flexibility to apply the general principle to the facts of the particular case.
Similarly the terms “gender expression” and “gender identity” used in the bill seem to me to be general terms that will pick up the wide variety of trans types that matt discusses in his posts.
Thanks, matt. I try to keep up-to-date on CBA positions, but I missed that one.
I said fact-based.