Gender Expression in Canada: Analyzing Bill C-16
"Dublin LGBTQ Pride - anonymous lady" by STANDARDBLANC.COM is licensed under CC BY 2.0
The last few years have seen gender expression increasingly addressed in mainstream media. Accordingly, public views have begun to shift to become more accepting of different gender identities, and some governments have followed suit. For example, Canada passed Bill C-16 in 2017, which aimed to promote gender identity rights across the country. This refers to the rights of people of all gender identities to be treated equally and in a non-discriminatory way. However, while passing laws protecting marginalized groups is a way to ensure their safety in the legal world, this does not always translate to safety from discrimination and microaggressions in their day-to-day lives. The purpose of this analysis is to consider how Bill C-16 protects the LGBTIA+ community, but does so against a backdrop of societal norms and attitudes that are not always welcoming to minority groups.
Bill C-16 was passed in June 2017 with the intention of protecting people from discrimination in federal jurisdiction and from being targets of hate propaganda because of their gender identity or expression. To enforce this, the bill proposed to add “gender identity or human expression” to the list of prohibited grounds for discrimination in the Canadian Human Rights Act and to the Criminal Code. Its addition to the Canadian Human Rights Acts recognizes gender identity and expression as one of the grounds upon which discriminatory practices may be based.
Its addition to the Criminal Code has several implications. On the one hand, it has been added to several sections dealing with hate propaganda. Section 318(4) is the section that lists the groups against which it is an offence to engage in acts included under section 319. Section 319(1) makes it a criminal offence to incite hatred against a group where this may disrupt peace, and Section 319(2) makes it an offence to communicate statements that intentionally promote hate against a particular group unless this is done in a private conversation. “Gender” has been added as one of the groups under Section 318(4), thus making it an offence to engage in hate propaganda based on people’s gender identity or their gender expression. The terms were also added to Sections 320 and 320(1), which give the justice system the power to confiscate any form of hate propaganda that constitutes an offence under Section 319. In addition to these sections, which deal with offence, the terms were also added to a section of the Criminal Code that deals with sentencing for hate crimes. Under this modification, gender identity has been added to the list of groups for which, if there is sufficient evidence that an offence is motivated by prejudice, bias, or hate, sentencing can be increased.
Bill C-16 was not the first of this nature to be presented to parliament. Several bills had been proposed to bring about these changes, with the earliest dating back to 2005. Unfortunately, they were not successful. The one that came the closest to being passed was Bill C-279 in 2013, which had the same primary provisions as C-16. It advanced to the stage of a committee report being presented to the Senate, but it died on the Senate order paper. Some of the backlash faced both by the predecessor bills and by Bill C-16 included arguments that the bill would pose a threat to women in women-only spaces and that the bill was an attack on freedom of speech. The argument about women’s safety stemmed from a notion that this bill would allow men to threaten women’s safety in women-only spaces such as public washrooms. The second argument was that this bill would limit legitimate discussion of personal beliefs. It was seen as an attack on the right to disagree. The fears surrounding washroom use were in part quietened by the #WeJustNeedtoPee movement, in addition to other forms of advocacy on the part of the trangender and non-binary community. The argument surrounding free speech was denounced by lawyers, law professors and activists as being unfounded. Moreover, the Canadian Bar Association also took a stance against both of these arguments, supporting Bill C-16.
In a paper published by the Organization for Economic Cooperation and Development in 2020, Canada was ranked as a top-performing country in terms of legal inclusivity for LGBTI people - i.e. lesbians, gay men, bisexuals, transgender and intersex individuals. Bill C-16 contributes to this legal inclusion. However, despite the successful passing of the bill, the situation for the trans and non-binary communities in Canada remains problematic. The passing of this bill symbolized a step forward in the promotion of gender identity rights, but it does not mean that Canada has become completely safe for non-binary and trans people. Several incidents of discrimination have been reported in the media in recent years. According to an article published by Statistics Canada in 2019, about half of students in Canadian post-secondary institutions witnessed or experienced discrimination on the bases of gender, gender identity, or sexual orientation.
These staggering statistics and reports that occurred after Bill C-16 was passed demonstrate the limited reach of policy when it comes to deeply entrenched societal attitudes towards minority groups. Some examples of policies that could be implemented to promote gender identity rights include creating and maintaining popular support for LGBTQIA+ inclusion (for example by educating the general public and raising awareness around issues faced by these communities) and the enforcement of anti-discrimination laws in areas such as education, employment and healthcare.
Hate speech and discrimination are realities faced by all minority groups in society. Bill C-16 is an example of policy that can be enacted to protect these groups. However, no single policy is able to eradicate the negative social perceptions that some people have of these groups. There is always room for improvement when it comes to human rights. Bill C-16 does the important job of recognizing that trans and non-binary people face hate speech and discrimination and gives the legal system the tools to fight this injustice. Changing the way these groups are treated and live in society will remain an ongoing battle, with Bill C-16 representing an important milestone in Canada’s journey to do so.