Questions and Answers
Legislation on gender identity and gender expression received royal assent on June 19, 2017.
- Q. What is “gender diversity”?
- A. Gender diversity is an umbrella term that refers to a wide range of gender-related identities and ways of expression. This could include transgender, gender non-conforming, gender fluid, two-spirited, and intersex people, amongst others.
- Q. How would this Bill change the law?
A. This Bill would make three changes to the law.
It would amend the Canadian Human Rights Act to prohibit discrimination on the grounds of gender identity and gender expression. This amendment would give explicit protection to transgender and gender-diverse persons from discrimination in areas such as employment opportunities and access to goods and services.
The Bill would also amend the Criminal Code in two ways: it would prohibit hate propaganda against groups that are identifiable based on gender identity or gender expression. This amendment concerns extremist literature or information that aims to incite hatred against a particular group and that is far outside what Canadian society will tolerate.
The Bill would also amend the Criminal Code to clarify that sentencing for a criminal offence may be greater if the offence was motivated by bias, prejudice, or hate based on gender identity or gender expression.
- Q. Will “gender identity” and “gender expression” be defined in the Bill?
A. In order to ensure that the law would be as inclusive as possible, the terms “gender identity” and “gender expression” are not defined in the Bill. With very few exceptions, grounds of discrimination are not defined in legislation but are left to courts, tribunals, and commissions to interpret and explain, based on their detailed experience with particular cases.
Definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission, for example. The Commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act.
- Q. Why are these amendments necessary?
- A. Currently the Canadian Human Rights Act and the Criminal Code do not provide explicit protection for transgender and gender-diverse persons. While a number of these types of cases have been successfully argued in the past under the Canadian Human Rights Act, the government believes that it is time for Parliament to affirm the rights of transgender and other gender-diverse persons in clear language. The law should be clear and explicit: transgender and other gender-diverse persons have a right to live free from discrimination, hate propaganda, and hate crime.
- Q. Would this Bill create special rights for transgender persons?
- A. No. The Canadian Human Rights Act and the Criminal Code already protect everyone from discrimination, hate propaganda, and hate crime based on several grounds, including race, religion, sex, age, and disability. “Gender identity” and “gender expression” would be added to the existing list of grounds to ensure that there is explicit protection.
- Q. Would these amendments allow people with male anatomical characteristics full access to women’s and girls’ washrooms and change rooms?
- A. Transgender persons have a right to be treated according to their deeply-felt gender identity. In many situations, that includes the right of a person who lives as a woman to use women’s facilities, even if she has some male anatomical characteristics. These amendments will codify that right. Transgendered and other gender-diverse Canadians already use gender-appropriate bathrooms and pose no greater threat than anyone else in doing so; they simply want to use the washroom or change room that corresponds with their lived identity.
- Q. What is the Canadian Human Rights Act?
A. The Canadian Human Rights Act is a statute enacted by the Parliament of Canada. Its principle is that all individuals should have an equal opportunity to make the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices. It prohibits discrimination in employment and in access to goods, services, facilities, and accommodation that are within federal jurisdiction. Provinces and territories have similar laws that apply to provincial and territorial matters.
The current prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. The Bill would add “gender identity or expression” to this list.
Individuals who feel that they have experienced discrimination, or who would like more information about the Canadian Human Rights Act, may contact the Canadian Human Rights Commission.
- Q. What are the hate propaganda offences currently listed in the Criminal Code?
A. The Criminal Code currently defines the following crimes as hate propaganda offences:
- Advocating or promoting genocide against an “identifiable group”, that is, any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability (subsections 318 (1), (2), and (4));
- Inciting hatred against an “identifiable group” by communicating in a public place statements which are likely to lead to a breach of the peace (subsection 319(1)); and
- Communicating statements, other than in private conversation, to wilfully promote hatred against an “identifiable group” (subsection 319(2)).
The Bill would expand the definition of “identifiable group” by adding “gender identity or expression” to the several groups already listed there.
- Q. What is a hate crime?
A. The Criminal Code requires that a judge, when deciding on the sentence for any offence, must consider as an aggravating circumstance if the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.
While gender identity and gender expression would be a “similar factor” in appropriate cases, the Bill would specifically set out these grounds in this paragraph in order to explicitly protect groups that are targeted for those reasons.
- Q. Does the legislation cover sports?
- A. Sport generally falls under provincial jurisdiction, and would be subject to the human rights laws of the respective province in which it takes place.
- Q. The legislation would explicitly refer to crimes being motivated by hatred of a person's gender expression or gender identity as aggravating factors when it comes to sentencing. What impact would that have on sentences?
- A. Explicitly referring to hate based on gender expression or identity as an aggravating factor would ensure that sentences are increased to account for the gravity of the offence committed and the degree of responsibility of the offender; the sentence must still not exceed the maximum punishment set out in the Criminal Code for committing the offence.
- Q. What is the expected cost of this?
- A. There is no immediate cost to the legislation; it is too early to speculate on what future costs might be.
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