Senator Enverga defends rights of those who seek security and privacy in washrooms, fitting rooms and dressing rooms 

The Honourable Tobias C. Enverga Jr., Ontario Senator, rose in the Senate this week and delivered a speech defending the privacy and security rights of those Canadians who would be placed in uncomfortable and potentially unsafe situations resulting in the passing of Bill C-16. This Bill seeks to amend the Human Rights Act and the Criminal Code, making it possible for those who are transgender identified to access the washroom, fitting room, or dressing room of the gender they identify with. Concerned for the rights of those who may not feel safe or comfortable sharing such a private and intimate space with someone of the opposite sex, regardless of the gender they may identify themselves as, Senator Tobias C. Enverga Jr. delivered the following speech in the Senate Chamber:


Hon. Tobias C. Enverga, Jr.: Honourable senators, today I rise to speak to third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code. I had the opportunity to speak on this bill at second reading, and I would like to once again declare my fundamental opposition to this bill.

Many of my colleagues here have given passionate speeches in this debate, and I thought it would be important for me to speak again as this bill inches closer to its third reading vote.

I would like to reaffirm to honourable senators here that I am in no way opposed to equal rights for all Canadians. Quite the contrary: I am committed to the equal and non-discriminatory treatment of all individuals, and I firmly believe that we need to continue the fight against prejudice and bigotry in our society.

However, colleagues, although well-intended, this bill fails to achieve its intended and stated goal. The inclusion of a new group in the Canadian 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 would like to reiterate strongly that our laws, including the Criminal Code, are no place for an awareness campaign to assist in building understanding for those who do not fit into the colloquial “norm.”

It is important to remind honourable senators that Bill C-16 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. This protection is afforded in section 15(1) of the Charter, which states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Honourable senators, I would now like to acknowledge the fact that we have a large number of people in this country who are not comfortable with potential scenarios that this bill might present. As this is the case, we are now looking at two competing rights.

On one side is the right of an unidentified number of people, 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 and thus, who should be protected by those rights.

On the other hand, there is the right of an also unidentified number of people who belong to various groups without any common physical characteristics to go to the washroom, fitting room or dressing room without feeling that their security of person is compromised.

Honourable senators, I have always been an advocate of inclusion through my work in this chamber: inclusion for ethnic minorities through our policy of multiculturalism, and inclusion of those with disabilities, to name a few. I consider inclusion to be a cornerstone of our society. I have a strong belief that the inclusion resulting from our multiculturalism is uniquely Canadian and is what makes our country a global leader in diversity and tolerance.

It is with inclusion in mind that I once again raise my opposition to this bill. I would like to reiterate my concern about the rights of those who are not comfortable in the same washroom, fitting rooms or dressing rooms 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 some have voiced in this debate, that makes me reluctant to support this bill, although it does concern me to some degree. My reluctance springs from the fact that we are pitting two separate, disparate groups against each other. It is with this fear of division in mind that I cannot say with confidence that Canadian society has reached the point where we, as parliamentarians, are leading it.

Honourable senators, Canada has long prided itself on being open and welcoming to immigrants from around the world; immigrants who come to Canada and are of different and varied cultural and religious backgrounds. The prime example to help illustrate this point is Islam. Let us consider the practices that are important to those who are of that faith. All here are aware of the practice of many Muslim women to wear head covers, often in the form of a hijab. Generally, we find that the head covers are worn as a symbol of modesty and privacy so as to not 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 private and intimate of spaces with someone who appears, in all physical and biological ways, to be of the opposite sex? I ask, honourable senators: Is it possible that, in passing this bill, we would be discriminating against our Muslim friends, as well as other groups, and their practice and policy of modesty?

I would like to echo the fact that by passing Bill C-16, to ensure the rights of a still unknown number of persons, we force values that are not part of our social fabric upon a large majority. I do not believe that this is going to increase acceptance of diversity.

The last concern I would like to voice, honourable senators, is this question: What qualifies a person to invoke these new amendments when going before a tribunal or court of law? The bill does not define this issue. I know that some in this debate have previously compared gender identification to that of religion based on the personal nature of faith.

While this may be a valid comparison at an individual level, religion is highly regulated at a societal level. We have baptismal certificates, memberships lists et cetera, that will have a significant impact on religious practice. Conversely, what will the qualifier be for a person to be able to take their case to the Human Rights Commission? Are we going to see the emergence of a gender-identity register? These are very serious questions that are not answered by this bill.

Honourable senators, it is my hope that I have provided good points that have helped further debate on this very important matter. I hope colleagues here will deeply consider the issues that I have raised when deciding how to vote on this bill.

Thank you.