Below is the exerpt from the Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs (Issue 27, Evidence – February 25, 2015) during which Senator for Manitoba Don Plett proposed amending the transgender rights bill, derisively dubbed the bathroom bill by social conservative opponents, to exclude transgender persons from using the “correctional facility, crisis counselling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room” intended for the gender they identified with.
I urge everyone to read the exchange and hear for yourself what exactly is happening.
Key Participants (in order of speaking):
- Senator Don Plett, Senator for Manitoba, appointed by PM Harper (parliamentary profile, political web page) – Manitoba explicitly protects transgender persons in its human rights code.
- Senator Grant Mitchell, Senator for Alberta, appointed by PM Chretien (parliamentary profile, political web page) – Alberta explicitly protects transgender persons in its human rights code.
- Senator Mobina S.B. Jaffer, Senator for British Columbia, appointed by PM Chretien (parliamentary profile, political web page) – British Columubia implicitly protects transgender persons in its human rights code.
Excerpt from the session
Senator Plett: Thank you. I appreciate that. It is before clause 3. I apologize to you, chair. I have a new clause, just before clause 3, a new clause 2.1.
That Bill C-279 be amended, on page 2, by adding after line 14 the following:
“2.1 Subsection 15(1) of the Act is amended by striking out “or” after paragraph (f) and by adding the following after that paragraph:
(f.1) in the circumstances described in section 5 or 6 in respect of any service, facility, accommodation or premises that is restricted to one sex only — such as a correctional facility, crisis counselling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room — the practice is undertaken for the purpose of protecting individuals in a vulnerable situation; or”.
Colleagues, this amendment deals with 15.1(g) of the Canadian Human Rights Act, which is a section dealing with exceptions.
As many of you know, my primary concern, and the issue we continue to hear from concerned citizens, is in respect to sex-specific facilities. We know that gender identity legislation in the jurisdictions that we have implemented it have included terms such as gender fluid, agender, genderqueer and neutros in their interpretation. This amendment will protect those operating sex-specific facilities in federal jurisdiction, for example, bathrooms, military base change rooms and shower rooms, and women’s shelters on First Nations reserves if they decide not to allow, for example, a biological male self-identifying as female into a sex-specific facility for the purpose of protecting vulnerable women.
Colleagues, we have a young girl here, and I spoke to her at the break. She had a concern that this bill would impact her in her school. I explained to her it would not because that school is provincial jurisdiction. This bill, of course, deals only with federal jurisdiction, and so I wanted to assure Charlie that this would in no way impact her at school.
We heard, colleagues, from Susan McLeod from the Siksika Health Services, who was supportive of the bill in principle, that women who have suffered physical or sexual abuse often find the experience of being in the presence of a biological male traumatic. This protection will allow health service providers the flexibility to provide separate but equal treatment for trans women when necessary for the protection of vulnerable shelter residents.
If an individual like Christopher Hambrook, the convicted sex offender who falsely claimed to be transgender to gain access to a women’s shelter in Toronto, were to attempt to gain access to a women’s shelter on a First Nations reserve, this would provide protection for the shelter.
In my opinion, this addition to the exceptions section of the Canadian Human Rights Act will afford those operating sex-specific facilities on federal jurisdiction with a reasonable protection. This will no longer allow biological males to self-identify as female and gain unrestricted access to sex-specific facilities.
This in no way hinders human rights protection for the transgender community. They will still be a recognized group by the Canadian Human Rights Act and will not be able to face discrimination most importantly, and this was raised with me, most importantly, in areas like housing and employment, which I know are two of the greatest concerns for the community.
Colleagues, I hope you will support this amendment.
Senator Mitchell: I will not, and my colleagues will not support this amendment. If I could provide the reasoning for that, I will.
First of all, this act and the human rights legislation and the Criminal Code in this respect are designed specifically to avoid discrimination, and this clause is inherently discriminatory. The very act that is designed to prohibit discrimination is actually being amended in a way that would allow for discrimination. That is the first question.
Second, I’m very pleased that Senator Plett pointed out the distinction between the application of this to the federal jurisdiction and to schools, but it is an interesting distinction that he draws. There is now in I believe five provinces legislation that acknowledges gender identity rights and ergo has jurisdiction over schools. There is no evidence, no case that I am aware of, no case that I expect anyone in this room is aware of, where it has ever been a problem, the question of schools, washrooms, et cetera.
Where this kind of bill, this kind of right, has been applied, i.e., in five provinces, in schools, for example, using the Charlie case, there hasn’t been a problem. In fact, a review of North America experience wherever this kind of right has been extended to transgender people, there has not been any clearly or reliably or credibly documented cases where it has been abused by somebody who has gone into a facility and done something inappropriate.
In fact, it’s interesting to note that the same Michael Crystal who Senator Plett used to defend his amendment with respect to taking the definition of gender identity out, and who was very compelling and actually convinced me that that was the right step, went on in his testimony in a number of ways to say that this amendment, the one before us at this particular moment now, the one with respect to washroom facilities and showers, was not necessary.
I would quote him, as Senator Plett did earlier:
In terms of when Senator Plett raises the issue, let’s say an individual, a brazen trans male, walks into a female washroom, maybe to make a statement, maybe to assert her rights. The question is: Do we turn a blind eye to that act if it is without any disregard to the rights of others?
I say no. I say that is not the way our law works.
The law that exists. That’s not the way the law works now.
In fact, if it’s done with a view to create hysteria, there may even be a criminal complaint.
That’s my point. There is a global approach to these issues, and we should heed that.
He is making the point, and he made it a number of times, the same Michael Crystal who said we need to take the definition of gender identity out, which we have done. He made the point that we do not need to include this washroom/shower facility amendment in this bill. In fact, it complicates matters and will not end up achieving the kind of result that Senator Plett is arguing that it might.
If I can use an analogy, many people who argued against gun control said that lawful, law-abiding gun owners shouldn’t be held accountable for the actions of unlawful, non-law-abiding gun owners. In effect, if you put this amendment in, what you’re saying is lawful, law-abiding transgendered people will be held accountable for somebody who could do something unlawful, inappropriate in a bathroom or washroom facility, for example, who may not even be transgendered, who might not even be aware of this particular right and who might not ever use it. It doesn’t prohibit that.
It holds people who are law abiding, who are fully fledged and should be equal members of our society, accountable for the potential, although it’s a very long-shot potential that somebody would misuse this to try to justify a criminal act. That is the same thing that people who are opposed to gun control argued. It’s exactly the reverse argument they used there, which is why would we hold somebody who is law abiding responsible and accountable for somebody who is not?
It’s for those reasons that I would not support this amendment. I simply believe that it’s not necessary and that it weakens the bill in many ways, even in the ways ultimately that Senator Plett is trying to strengthen it.
Senator Plett: Thank you. I won’t belabour this. I will intervene one time. Senator Mitchell and I talked about this earlier, and we didn’t want to make this a back and forth. I don’t plan on doing that, and I appreciate all of his comments.
I want to just read into the record a few of the comments that Ms. McLeod made from the Siksika First Nation when she was here. She was very clear when she said:
We don’t want to turn away transgendered persons coming to our shelter and our transition house simply because of their gender at birth. We don’t want to do that. But we also recognize the fact that we have to protect women and children.
She went on to say:
The lack of clarity within the legislation makes it difficult for us to establish appropriate services and legal and ethical policies. The clarity would help us to make those definitions and policies at the administrative, front-line level.
We simply want to have the choice on-reserve to have a facility that we can offer to both transgendered individuals and to women and children in separate areas.
The last part of her testimony I’ll read is:
We fully believe it is possible to provide separate treatment facilities for men, women and transgendered individuals within the same facility, and the bill should be amended to allow health administrators to provide service in a manner that helps all and harms none.
Gerald Chipeur was here with Ms. McLeod, and was a constitutional lawyer as well. Senator Baker knows him well. He was here and he felt the opposite of Mr. Crystal, that in fact this amendment was very necessary. Some of the wording that he suggested to me was significantly stronger yet than the wording we came up with at the end. He believed it was very necessary.
Those are my only comments, chair.
Senator Jaffer: Senator Plett, this is the first time I’m seeing the amendment, so may I ask for some clarification so I have a better understanding of it?
One thing that concerns me, and you can correct me because I have not studied it as much as you have, is that we are not clarifying other groups that are discriminated against; we’re just doing it for it trans people, people with gender identity issues. We don’t do it for women and we don’t identify or go further to explain. I have a concern that this is more discriminatory. That’s a bigger concern.
I would like you to explain why you set out just a few facilities. It’s just an example, I get that. Why just a few? “Such as,” it could be “others.” Were you advised, or why did you feel it was necessary to put some facilities there?
Senator Plett: Thank you, senator. Initially, as I just finished explaining, when we talked to Gerry Chipeur he suggested a few others, such as sporting facilities. At one point I had it in the amendment.
My personal feeling, Senator Jaffer, was that the facilities that I am using are the ones where it is most likely for people in vulnerable positions to be exposed to people with biological differences.
Also, in crisis shelters, as Ms. McLeod shared, and I’m not going to quote her, I’ll just say what she shared here at committee and with me that when people come to her crisis centre, they are mostly women. The crisis centre isn’t specific to women, but they’re mostly women. They’re mostly women who have been abused by men.
Her concern was not that if a transgendered individual went there that they were a threat to anyone, but her concern in that particular case was here is a woman who has come to my facility. She has been maybe raped, maybe beaten up, abused by her husband, father, brother, boyfriend, and she sees a biological male and it is a traumatic experience for her. She doesn’t identify that that person is of no danger, that that person is transgendered.
Furthermore, Ms. McLeod said that this transgendered individual could apply to work there. Of course, we are not dealing with the employment issue, but she raised a concern there. She said here is a biological male who will now be helping this woman who is already traumatized, and so she had a concern.
I have raised, as you know, senator, the issue of fully grown men walking into a woman’s shower — and I will use men because I believe they are biological men, transgendered, but biologically they are male — walking into a shower room that has either women or girls in it. Of course it could be the opposite. It can be a biological female, but it seems that it’s more often the earlier one.
Those are the reasons. So I chose, for the amendment, the facilities where I thought people would be the most vulnerable. So these are the ones I chose.
Senator Jaffer: Senator Plett, I very much appreciate your explanation. I know how much work you’ve put on it but, with the greatest of respect, I feel that this is discriminatory. We’re trying to take away the discrimination, and then you are putting it back. That’s my challenge with this.
Senator Plett: I appreciate that. I guess I’m saying that if I feel that my daughter or granddaughter is being discriminated against — if she is not allowed into a facility of her choosing and she’s not. I guess we can go back and forth on that, but I respect your opinion.
The Chair: Is there anything further on this?
Senator Mitchell: I want to thank Senator Jaffer and her intervention, and underline that this particular amendment is deeply troubling to transgendered people. I want to acknowledge here, on the record, the deep pain that it causes them. I would like to say that without going back and forth, I could answer some of the points that Senator Plett has made, but this is not the time to do that. We can do that at third reading as well.
There is another complication. What this clause will require is that a trans man — so somebody who was assigned a woman’s physique at birth, but transitions to a man and is on drug therapy and hasn’t been operated on, and looks as masculine as every man around this table, and, in fact, there are probably trans men in this room who we have no idea, were assigned women’s physiology at birth — will be required to use a woman’s washroom. Somebody who looks absolutely masculine and looks like a man, and who knows that he is a man would, could, be forced under this amendment, to use a woman’s washroom. That would be, it would seem to me, extremely unsettling both to the transgender man and to any women who happened to use that washroom at the time.
So there is this conundrum. I’ll leave it at that and say that while we supported the earlier amendment, we simply will vote against this amendment.
Senator Jaffer: I’m really uncomfortable with this amendment. I feel there is a presumption that a transgender person is in an aggressive position and I especially have great difficulty with the protecting individuals in a vulnerable situation. For me, that is assuming that the transgender person is a threat to people. All that we worked for and all this legislation, it’s all for naught. We say we keep the gender identity, but yet we say that they cannot use some facilities because we see them as the aggressor because we are saying the other people are in a vulnerable situation. I have great difficulty with this amendment.
The Chair: I think that exhausts the conversation surrounding the new clause that Senator Plett has proposed. Senators, is it your pleasure to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: On division. The amendment is carried?
Do you want a roll-call vote? I’ll ask the clerk.
Senator Plett: I have been quite under the weather lately and so I apologize.
The Chair: We’re about to have a roll-call vote, Senator Plett.
Shaila Anwar, Clerk of the Committee: The Honourable Senator Runciman.
Senator Runciman: Abstain.
Ms. Anwar: The Honourable Senator Baker, P.C.
Senator Baker: I am against the amendment proposed by Senator Plett.
Ms. Anwar: The Honourable Senator Batters?
Senator Batters: For the amendment.
Ms. Anwar: The Honourable Senator Dagenais?
Senator Dagenais: For the amendment.
Ms. Anwar: The Honourable Senator Fraser.
Senator Fraser: No.
Ms. Anwar: The Honourable Senator Jaffer.
Senator Jaffer: No.
Ms. Anwar: The Honourable Senator Manning.
Senator Manning: Yes.
Ms. Anwar: The Honourable Senator McInnis.
Senator McInnis: For the amendment.
Ms. Anwar: The Honourable Senator McIntyre.
Senator McIntyre: For the amendment.
Ms. Anwar: The Honourable Senator Mitchell.
Senator Mitchell: Opposed.
Ms. Anwar: The Honourable Senator Plett.
Senator Plett: In favour.
Ms. Anwar: Senator White isn’t here.
Yeas, six; nays, four; abstentions, one.
The Chair: New clause 2.1 is carried. Shall clause 3 carry?