Senator Enverga cautions against amendment to the Canadian Human Rights Act and the Criminal Code to add gender identity and gender expression to the list of prohibited grounds of discrimination and urges thorough committee study on Bill C-16.


Canadian Human Rights Act

Criminal Code

Bill to Amend—Third Reading—Debate

On the Order:

Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Fraser, for the second reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.

Hon. Tobias C. Enverga, Jr.: Honourable senators, today I rise to speak to second reading of Bill C-16, An Act to amend the Human Rights Act and the Criminal Code. As senators know, we debate the principle of a bill at this stage, and I declare my fundamental opposition to the bill in its principle.

First, I want to assure honourable senators that I am in no way opposed to equal rights for all Canadians, and I want to share with you that in my private life there are many transgender- identified persons that I care about deeply. I also want to add that I’m committed to the equal and non-discriminatory treatment of all individuals, and that we need to continue to fight against prejudice and bigotry in our society.

However, this bill, no matter how well-intended, does not achieve its intended and stated goal. The inclusion of a new group in the Human Rights Act and in relevant hate crime sections of the Criminal Code does not improve the condition for those who are discriminated against.

I am of the conviction that our laws, especially those laws which are among our heaviest instruments, like the Criminal Code, are no place for an awareness campaign or to build an understanding for those who do not fit into the colloquial norm.

Honourable senators, Bill C-16, as a government reincarnation of unsuccessful private members’ business, does not establish a new right or a protection from abuse that is not already found in our Charter of Rights and Freedoms.

The essential right that ensures equal treatment for a transgender-identified person is that of sex. You cannot discriminate against a person because of their sex. It is crystal clear, and with some exceptions like affirmative action to restore historical marginalization, as an example.

I say this because once a person is treated differently, denied an opportunity or victimized based on the fact that this person is a man, yet is wearing clothing and accessories usually designed for women or vice versa, he or she is treated this way because of his or her sex. It is very simple. They are treated differently because some members of our society do not think men should wear dresses or women should wear tuxedos.

Let me provide honourable senators with an example that I recall reading about a few years back. Rohit Singh wanted to find a dress for her wedding in 2013. Rohit Singh went into a bridal shop in Saskatoon to try on a few dresses, but was denied the opportunity to try dresses in the shop because Rohit Singh looks like a man.

The shop owner was quoted by CBC news as saying:

“To me it doesn’t matter. He looked like a man. There was quite a few brides in the store. If you see a man trying on dresses, you’re going to feel uncomfortable.”

That, honourable senators, is a clear violation of protections against discrimination based on sex: You are a man, therefore you are not allowed to try on a dress.

I am glad to share that Rohit Singh did get another dress from another bridal shop, and proceeded with the wedding. Congratulations to her.

The Saskatchewan Human Rights Commission, later that year, ruled that the owner of the bridal shop violated Rohit Singh’s rights under section 12 of the Saskatchewan Human Rights Code by denying service to a transgender woman.

However, it is sufficient to determine that this case was discrimination based on sex. Rohit was not allowed to try on a dress because she looked like a man.

Saskatchewan’s Human Rights Code has gender identity listed as a prohibited ground upon which one cannot be discriminated against, but interestingly, section 12, which was used in this case, has an exception. Subsection 2 reads:

“Subsection (1) does not apply to prevent the barring of any person because of the sex of that person from any accommodation, services or facilities upon the ground of public decency.”

My suspicion here is that this would mean that one can deny entry to public washrooms that are designated for either sex on the grounds of public decency. I say “suspicion” because there is no definition of the term “public decency.” It is dynamic, as is society, which brings me to my next point.

Honourable senators, we have a large number of people in this country who are not comfortable with the scenario that my good friend Senator Jaffer spoke of in her speech to this bill. This means that we are looking at two competing rights: the right of an unidentified number belonging to the transgender-identified group, who do not necessarily have any physical characteristics that make it possible to determine who belongs to that group protected by those rights, versus the right of an unidentified number of people, who belong to various groups with common physical characteristics, to go to the washroom without feeling that the security of the person is compromised.

Honourable senators, one of the causes that I champion in this chamber is inclusion. Inclusion for ethnic minorities through our policy of multiculturalism is one, and inclusion of those with disabilities is another. I consider inclusion to be one of the cornerstones of our society, and I have a strong belief that our multiculturalism, and the inclusion it results in, is uniquely Canadian and is what makes our country stand out. It is with inclusion in mind that I oppose this bill.

I am concerned about the rights of those who are not comfortable in the same washroom as someone of the opposite sex, whatever gender they may identify themselves to be. My suspicion is that that group is larger than the group that is transgender-identified.

Honourable senators, it is not necessarily a fear of criminals committing sexual crimes, as Senator Dyck spoke of yesterday, that makes me reluctant to support this bill, although it does concern me. My big issue is that we are pitting two groups against each other. I am not sure if Canadian society has reached the point toward which we, as legislators in both houses, are pushing it. I am concerned about the scenario where women and men can find a person in their change room at the public swimming pool who is, or appears to be, of the opposite biological sex.

If our society has reached that level of acceptance, why do we still have separate change rooms based on sex? Why does nudity in a movie ensure a higher age rating? Why do we have to cover nudity in the magazine racks? Let’s answer all of these questions.

Are we, as individual senators, comfortable being in a situation where a person with the physical appearance of the opposite sex is freely changing and showering right next to us? I am not convinced that is the case.

Honourable senators, our great country prides itself with being open and welcoming to immigrants from all over the world. Those who come to Canada are of different cultural and religious backgrounds. Let us consider Islam as a religion, and the practices that are of utmost importance to those who belong to that faith.

We are aware of the sometimes contentious practice for many Muslim women to wear head coverings, often in the form of a hijab. I do not know the percentage of Muslim women who wear head coverings, but I know that in 2011 there were over half a million Muslim women in this country. The reasons behind wearing a head covering are complicated and not completely agreed upon, but generally we find that it is a symbol of modesty and privacy, or not to show one’s hair to men.

If a person is unwilling, for religious or cultural reasons, to show a man one’s hair, how are we expected to force such a person to share the most intimate of spaces with someone who appears, in all physical and biological ways apparent to the eye, to be of the opposite sex?

By passing Bill C-16 to ensure the rights of an unknown number of persons, we force values that are not part of our social fabric upon a large majority. Is this going to increase acceptance of diversity? I do not think so.

My last concern, honourable senators, is what qualifies a person to invoke these new amendments when going before a tribunal or court of law? This is not defined in this bill. I know that Senator Mitchell has compared gender identification to that of religion, based on the personal nature of faith.

Senator Mitchell: Thank you.

Senator Enverga: Yes, this may be a valid comparison at an individual level, but that is not what we are concerned with here. Religion is highly regulated at a societal level. We have baptismal certificates, membership lists and so forth that have a significant impact on religious practice and the resources that may be available for this purpose.

What will the qualifier be for a person to be able to take their case to the Human Rights Commission? Does a person have to have submitted a provincial gender-redesignation application? Are we going to see the emergence of a gender identity register?

These are all very serious questions that are left unanswered by the proponents of the bill. I hope that the Senate committee that will conduct the legislative study on Bill C-16 can find more answers than we have been presented with in this chamber to this point.