Explicitly Add Gender Identity to the BC Human Rights Code List of Protected Designation

Morgane Oger, Chair, Trans Alliance Society chair@transalliancesociety.org  

Issue/Problem and Public Policy Solution

The BC Human Righst Act needs to be updated to provide the same explicit protection for gender identity and gender presentation that it affords for sexual orientation.

In British Columbia it is not widely known that even though gender identity is not explicitly mentioned in the human rights code, it has been interpreted to be synonymous with sex since a BC Human Rights Tribunal decision in 1999.

Unfortunately, because the BC Human Rights Code was never updated to reflect this legally binding decision, it is not widely known that discrimination on the basis of gender identity is in fact against the law in BC. Whereas the protections offered under the Act are widely known, the jurisprudence around it are accessible only to sophisticated organizations and the transgender community.

This omission contributes to a situation where transgender persons who know their rights find themselves in conflict with the British Columbians who do not believe them and have encountered no readily available information on the subject.

As a result, conflicts arising from misperception of what is acceptable behaviour towards transgender persons cause a load on the courts that could be avoided. In addition, knowledge of the law would reduce violence against transgender persons who report significantly higher incidents of violence than cisgender (non-transgender) persons.

Including gender identity and gender presentation would reduce this problem by clearly confirming to British Columbians that transgender persons are worthy of the same protections as everyone else and that being transgender is not an acceptable cause for discrimination. It would confer on transgender persons the clear entitlement to live a normal life free of impedance.

This is the very strategy that the federal government cites as reasoning for including sexual orientation in the Canadian Human Rights Act in 1996, long after it was no longer illegal to participate in “homosexual acts” in Canada:

“This inclusion of sexual orientation in the Act was an express declaration by Parliament that gay and lesbian Canadians are entitled to “an opportunity equal with other individuals to make for themselves the lives they are able and wish to have…”

In other words, the inclusion was not merely procedural, but also informative.

We therefore request that the minister of justice update the BC Human Rights Code to include gender identity to the protected classifications, alongside the other protections that it offers against discrimination on the basis of “race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons”

Research and Evidence

Transgender persons need additional protection

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 transgender 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.

Ongoing human rights violations in BC

In its March 2015 decision against the Vancouver Police Board following a complaint of discrimination from a transgender woman, the British Columbia Human Rights Tribunal issued the following order to the

 The VPB has engaged in systemmic discrimination of trans people concerning their identification. Within one year policies are to be adopted by the VPB that allow identification of trans people without discrimination. Officers are to be trained in the implementation of these policies

The Canadian mindset is already supportive

The protection and inclusion of persons of diverse gender identities is already a priority for a number of institutions and societies in Canada.

British Columbia’s Ministry of Education is working hard to incorporate gender identity into the curriculum in order to teach the next generation of British Columbians how to avoid injustice towards our transgender citizens.

The BC K-12 curriculum includes a social justice component called Making Space Which lists as a core goal of “addressing injustice faced by those who historically have been and today frequently continue to be marginalized, ignored, or subjected to discrimination or other forms of oppression.”

Additionally the Vancouver Board of Education implemented a renewed sexual-orientation, gender-identity policy in 2014, ACB, which clearly supports transgender and gender-variant students, staff, and stakeholders without exception. In Vancouver schools, self-identified gender identity is the only gender identity.

Similar policies which explicitly recognize transgender and gender-variant students according to their self-identified gender are in place in a number of other school districts in BC.

The City of Vancouver’s trans & gender variant working group is currently working to implement the recommendations of the Vancouver Parks Board Board working group recommendations. Already implemented at parks board facilities.

The province of British Columbia allows Birth Certificates gender marker changes since 2013. Citizenship Immigration Canada now accepts self-identification of sex designation (gender marker), blurring the distinction between gender identity and sex designation.

In addition, adult identity documents such as driver’s license and provincial identity cards are being issued in British Columbia to transgender individuals who have a gender designation which may or may not match sex designation on a birth certificate.

Because of this, there is now an enforcement difficulties where a person’s identity documents matching gender identity may not match foundational identity documents. In other words, British Columbia is already in a situation.

The Canadian Bar Association sent a letter in support of federal human rights bill C-279 extending rights to transgender persons in the Charter of Rights and Freedom and the criminal code. This is the federal equivalent of the BC Human Rights Code.

The right thing to do.

The evidence of the need for additional protection is well established, and the ability of human rights law to teach citizens is well understood.

Knowing it would help and that it is needed, explicitly adding gender identity and gender expression to the protected classifications in the BC Human Rights Code is the right thing to do today.

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One thought on “Explicitly Add Gender Identity to the BC Human Rights Code List of Protected Designation

  1. Pingback: Why organizations need to pledge their support for trans equality to march in the 2015 Vancouver Pride | Trans Alliance Society

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