LGBQ Pride, T Shame

This weekend was Pride in Toronto (and coincidently it is Canada day this Monday). Millions of people from across the country and the word converged on the metropolis to celebrate LGBTQ Pride, a mostly commercial but also a bit political event. I always approach Pride as a festival more than anything else. I can be an advocate nearly all other days; this one is for celebration and fun time. Nevertheless, this year felt very different as I did not feel like celebrating much. While many were celebrating the death of DOMA and Prop 8,[1] a much more Canadian issue was mainly absent from Pride (outside of the trans circles/specific events of course): the inclusion of gender identity as a protected ground in the Canadian Human Rights Act.[2]

For many years now, Members of Parliament (MPs) of the New Democratic Party (NDP, a centre-left party), Bill Siksay and now Randall Garrison after the former’s retirement from politics, tried to amend the Canadian Human Rights Act in order to insure that Trans and genderqueer people are protected from discrimination at the federal level.[3] The latest version of the amendment, Bill C-279 (which also added gender identity (of the victim) as an aggravating factor in sentencing) was the first to make it as far as the third reading in the Senate. It passed the House of Commons (with the support of the NDP, the Bloc, the Greens, the Liberals and a handful of Conservatives) and was approved by the Human Rights Standing Committee of the Senate. The only step left was a final vote by the Senate and the subsequent automatic royal assent.

Sadly, the conservatives made sure the Bill was not put to a vote before the end of the session.[4] If the session was to resume in the fall, it wouldn’t be such a big deal. But because the Prime Minister intends to prorogue Parliament to deliver a new throne speech, the Bill will die on the order paper and will have to be presented again as if it had never existed.[5] [Nota bene: thanks to a friend, I found that the procedure does not apply to private member bills (I’m happy to be wrong, thank you parliamentary procedure), thus Bill C-279 will survive prorogation but will have to go back to first reading in the Senate (see this reference). The basic premise of this post stand (the lack of support from LGBQ for trans issues, see this article), but the situation is less dire. Lets hope the conservatives won’t practice too much obstruction in the Senate.] To make matter worst, the Senate adopted instead a Bill that removed the telecom hate speech provision from the Canadian Human Rights Act during the last day, a provision that was most often used to protect LGPTQ people, under the guise of free speech despite the fact that the provision had been upheld by the courts.[6] Not only did trans and genderqueer people did not gain basic protection last week, all minorities group lost some. That it is why my heart did not feel like celebrating. I felt no pride.

As a consolation, at least trans people are currently protected by the human rights legislation as the tribunals and courts have interpreted the ground of sex (and more controversially the ground of disabilities) to include transgender people.[7] But this “read in” has its uncertainties. It is unclear to what extend sex would cover genderqueer people who do not fit within the “traditional” understanding of the transgender identity (especially genderqueer people of colour). Every single time, lawyers or the claimant have to spend some time affirming that sex covers trans people. This often means money and time that could be better used. Furthermore, the Human Rights Commission lack the mandate to positively influence government policy on the issue of gender identity and gender expression without a specific mention in the Act. In addition, many trans and genderqueer people do not know that they are currently protected (including people who are very much aware of trans issues). But more importantly, the reason why a specific protection should be adopted is to show that we will not tolerate discrimination and harassment against one of the most vulnerable group in our society. To show a modicum of solidarity, a word that is often tossed around without much thought.

I am not trans myself and I do not pretend to speak on behalf or know what is best for trans and genderqueer people, but as the G in the LGBTQ and as a fellow human being I am very disappointing at the lack of support for T from most LGBQ. We should have been outraged; we should have made sign for the parade; we should have joined the trans march in the thousands (or at least show or support if trans and genderqueer people prefer to march without the LGBQ), etc. Shame on us. The T deserves better. They deserve to be treated like human beings. Isn’t that what the LGBQ have tried to achieve all along?[8]

[1] In case you were living under a rock, DOMA (Defense of Marriage Act) is a US Statute that prohibited the federal government from recognizing legal same-sex marriage (s 3 of DOMA to be more precise, which was the section struck down by the US Supreme Court). Proposition 8 was a constitutional amendment banning same-sex marriage in California. The US District Court for Northern California found that it was unconstitutional. The US Supreme Court found that it could not hear the case and consequently upheld the lower court decision.

[2] Canadian Human Rights Act, RSC 1985, c H-6.

[3] Currently only Ontario, Manitoba and the Northwest Territories have adopted trans/gender queer specific human rights provisions.

[4] Bradley Turcotte, C-279 vote stalled by Conservative senators, Mitchell claims, Xtra, Published 25 June 2013 < http://www.dailyxtra.com/canada/news/c-279-vote-stalled-conservative-senators-mitchell-claims?market=209 >.

[5] Robert Marleau & Camille Montpetit, House of Commons Procedure and Practice, 2000 edition, online: http://www.parl.gc.ca/marleaumontpetit/DocumentViewer.aspx?Lang=F&Sec=Ch08&Seq=7

[6] Bill C-304. S 13, on hate speech, of the Canadian Human Rights Act was held constitutional by the Supreme Court and the Federal Court: see Canada (Human rights commission) v Taylor, [1990] 3 SCR 892 and Canada (Human Rights Commission) v Warman, 2012 FC 1162. In fact the Supreme Court validated hate speech prohibition through human rights legislation again this year in Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11.

[7] See Kavanagh v Canada (Attorney General), 2001 CanLII 8496; and Montreuil v National Bank of Canada, 2004 CHRT 7.

[8] I recognize that race, gender and class also interplay with these issues and that oppression levels depends on the interaction of different characteristic.

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