The Need for explicit inclusion of Gender Identity and Gender Presentation into the BC Human Rights Code

Based on Nov 19 letter to MLA S. Chandra Herbert

A wonderful aspect of being a British Columbian is that we live in a pluralistic society which enshrines the rights of all persons to hold core beliefs without constraint while, at the same time, protecting us from the actions of others that might harm us for who we are.

Every British Columbian has his, her, or their own sense of innate identity – we instinctively know who we are. British Columbians have our individual ideals, our core beliefs, and our own identity. Thanks to the BC Human Rights Cod, we are able to expect to enjoy equal rights and freedoms with full access to the “economic, social, political and cultural life of British Columbia.”

The tangible outcome of the BC human rights code is that persons in BC are protected against discrimination based on race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.

 

To help protect us, British Columbians rely on public knowledge of the code to stop others from doing actions that we all know are forbidden by the code. We rely on persons around us to help us thanks to their own knowledge of the equal rights afforded by the code. As a result, adding a protected classification into the code serves as more than a guide for a court of law but also as a teacher for British Columbians.

Yet something is missing. Today, gender identity and gender presentation are not classifications that are explicitly protected from discrimination. When physical ability and age were added to the protected classifications of the BC Human Rights Code, it was a signal to all of us that as a society, British Columbians agree to make accommodations such as curb cuts or braille in elevators. We all agreed that age was not an acceptable cause of dismissal from your job.

As a province, British Columbia agreed to explicitly state that British Columbians care about the ability of all British Columbians to fully live their lives in BC and wish to see this ability protected and enforced through law.

But more needs to be done in order to protect all British Columbians. Unacceptably often, transgender and gender-variant persons in BC find themselves squeezed between societal norms and the letter of the law.  Because the law does not explicitly name gender identity or gender presentation to the list of protected classifications, the situation today is that people are surprised to learn that it is unlawful to refuse housing to a transgender person because of their gender identity.

Even though they are protected by the law, transgender and gender-variant British Columbians are forced to fight for fairness on their own and at their own expense because many British Columbians are unaware about the reach of the human rights code in the context of sex discrimination.

This is unfair. It is unfair to ask people to start a human rights complaint every time an employer discriminates unknowingly. It is unfair to ask somebody to challenge police on their actions when the officer doing an infraction is unaware of the subtleties of the law in this regard. It is simply wrong to ask marginalized persons to advocate for their basic human rights. The BC Human Rights Code must be amended to explicitly include gender identity and gender presentation as protected classifications in the BC Human Rights Code.

In fact, in October 2014 parents have launched a challenge in BC supreme court against the Vancouver School Board’s implementation of sexual orientation and gender identity guidelines. These guidelines were specifically written in order to answer criticism that their old guidelines did not go far enough to answer the demands of the law when accommodating transgender persons.

Such avoidable challenges are expensive and draining on our legal system and illustrate the disconnection between public perception and the rule of law when gender identity is protected in a judgment but not specifically named in the law.

The consequences of this lack of knowledge by British Columbians include repeated infraction, incomplete protection, unnecessary court proceedings, and poor enforcement.

It also results in marginalization and real harm

The public service alliance of Canada reported in April 2014 that survey data from both Canada (transgenderPULSE Project) and the United States (National Center for Transgender Equality) illustrates the difficulties experienced by transgender and gender-variant persons:

  •     97% of transgender people have been harassed in their workplace;
  •     26% lost their job because of gender identity;
  •     36% have had suicidal thoughts in one year (2011);
  •     13% said they were constructively dismissed for being transgender;
  •     10% have attempted suicide.

In 2011, Egale Canada Human Rights Trust released “Every Class in Every School,” a report on the first national survey of homophobia, biphobia and transphobia in Canadian schools. The trans students surveyed consistently reported the highest rates of harassment:

  •     74% said they had been verbally harassed because of their gender identity;
  •     49% reported being sexually harassed;
  •     37% said they had been physically harassed.

Explicitly including protection for gender identity and gender presentation in the BC human rights code will assure transgender and gender-variant persons have access to services on an equal level playing field as is intended for British Columbians who pride themselves on pluralistic values.

Morgane Oger
Chair
Trans Alliance Society

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