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Before Trudeau: How NDP Parliamentarians Softened the Ground for Gender Identity as National Policy

Updated: Apr 7, 2023

By Blue Jay

Thomas Mulcair and Randall Garrison (NDP)

The Conservative Party lead by Stephen Harper governed Canada from 2006 to 2015. During this time two Members of Parliament (MPs) from British Columbia (BC) attempted to pass Private Member Bills in the House of Commons to add gender identity to the Canadian Human Rights Act (CHRA).

William (Bill) Siksay

The first of the two MPs was Bill Siksay who represented the BC riding of Burnaby-Douglas for the New Democratic Party (NDP). He first introduced Bill C-389 to amend the CHRA to prohibit discrimination based on gender identity or expression and the Criminal Code regarding hate crimes, in May 2009.

He had already introduced Bills C-392 (2005), Bill C-392 (2006), Bill C-494 (2007) to amend the CHRA to add gender identity, all of which failed to make it past the first reading in the House of Commons.

Bill C-389 was reintroduced in February 2011. It made some progress through the House of Commons where it was debated and opposed by the Conservative Government. They opposed it because several provincial human rights bodies had accepted discrimination complaints brought by transsexuals under the category of sex, and to a lesser degree disability. As for the Criminal Code amendment, the hate crimes sentencing provision already contained a non-exhaustive list of criteria that may be used to increase the penalty of any hate-motivate crimes.

In a nutshell, the Conservative Government opposed Bill C-389 on the basis that it was not necessary to achieve most of the protections that advocates sought, as existing grounds in the CHRA and Criminal Code already covered the grounds in question. The government was also concerned about the definitions of ‘gender identity’ and ‘gender expression’ and if these definitions included cross-dressers.

Supporters of the bill felt that specific protections were desirable for greater certainty and for symbolic reasons.

After passing the second reading, Bill C-389 was referred to the Standing Committee on Justice and Human Rights for review where Mr. Siksay spoke about the legislation he introduced. In his speech, he referred to The Yogyakarta Principles, which is an international document, a United Nations document, that's well known in human rights circles, which defines gender identity as referring to:

each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

Mr. Siksay spoke about the definition he generally uses for gender expression, which is that gender expression refers to how a person's gender identity is communicated to others through emphasizing, de-emphasizing, or changing behaviour, dress, speech and/or mannerisms.

That may be Mr. Siksay's definition, but there are no definitions for gender identity or gender expression in any Human Rights Act in Canada.

Although Mr. Siksay referred to the Yogyakarta principles, they did not take women’s issues or rights into account during their drafting. Robert Wintemute, a Professor of Human Rights Law at Kings College London, was one of the co-authors of the Yogyakarta Principles, and has admitted that women’s rights were not considered during the meeting where the principles were written and the authors ‘failed to consider’ that fully intact males would seek access to female-only spaces.

Although these principles were referred to in order for MPs to legitimize their legislation, these Principles as outlined in the YP document are designed to replace sex, which is a biological fact, with ‘gender identity’, which is a socially constructed fiction, according to Dr. Geoff Holloway, an Australian sociologist who has written extensively on the subject. The YP are not legally binding on the United Nations or any government on the planet, according to Outright International.

This bill was passed by the House of Commons but died on the Order Paper in the Senate when an election was called. This means that the bill had not received Royal Assent (the final step to becoming law) before the parliamentary session ended.

Randall Garrison

The second MP was Randall Garrison, who was first elected as an NDP MP for Esquimalt-Juan de Fuca, BC in 2011 and has been the NDP MP for Esquimalt-Saanich-Sooke since 2015. He too was an openly gay MP, hence his interest in this topic. He sponsored Private Member’s Bill C-279 as the NDP Critic on Sexual Orientation and Gender Identity, shortly after he assumed office in 2011.

The Conservative Party was still governing Canada and since Bill C-279 was the same as Bill C-389, they maintained their opposition as previously detailed. This bill was sent to the Standing Committee on Justice and Human Rights but the Committee’s allotted time to study the bill ran out and it was returned to the House in its original form.

During one of the Committee’s debates in the House of Commons on Bill C-279, David Anderson (Conservative MP – Cypress Hills – Grasslands, SK) stated in his opposition to the bill, “There were no definitions offered for either gender identity or gender expression. The member has come back now and dropped “gender expression” and tried to redefine “gender identity” in a way that ties it to people’s feelings. As I explained last time, that is not adequate, and it seems to have been done deliberately...”

Rob Anders (Conservative MP – Calgary West, AB) presented a petition signed by thousands of people who opposed Bill C-279, who felt that the duty of the House of Commons is to protect and safeguard our children from any exposure and harm that would come from giving a man access to women’s public washroom facilities.

The key arguments invoked by MPs opposing Bill C-279 in the House of Commons were:

· Unnecessary – Canadian Human Rights Act is already interpreted to prohibit transgender discrimination. Criminal Code hate-crime sentencing provision is already capable of protecting transgender persons.

· Vague – No definition of ‘gender identity’ in original Bill; concept is obscure and expansive (Definition unwanted by sponsor but added later as a compromise).

· Unrealistic -Canadian Human Rights Act cannot abolish gender categories and norms from Canadian society.

· Dangerous – “Bathroom Bill” would give sexual predators’ easier access to women’s spaces.

However, on March 20, 2013, the Bill was passed by the House of Commons. 149 members voted in favour of the bill including all Opposition Parties and 18 Government MPs. 137 members voted against the bill with their position being that the protections already exist for transsexual people.

It was sent to the Senate where it was reviewed by the Standing Senate Committee on Legal and Constitutional Affairs. It was during this review that the Honourable Senator Don Plett (Leader of the Opposition in the Senate) moved that Bill C-279 be amended to exempt single sex spaces like prisons, crisis centres, and public washrooms and change rooms from the bill. The amendment was accepted by the Senate.

In response to the Senate’s amendments to the bill, Randall Garrison was vocal in the Canadian press about the transphobes in the Senate. He was quick to attack anyone who disagreed with this bill even though some of the concerns were about the impacts of these amendments on the rights of women and girls. The CBC reported, “Transgender rights bills gutted by ‘transphobic’ Senate amendment".

Regardless of Garrison’s public outcry, Bill C-279 died before it received Royal Assent.

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