2nd Session, 41st Parliament,
Volume 149, Issue 130

Tuesday, March 31, 2015
The Honourable Leo Housakos, Speaker pro tempore

Canadian Human Rights Act
Criminal Code

Bill to Amend—Twenty-Fourth Report of Legal and Constitutional Affairs Committee—Motion in Amendment—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Runciman, seconded by the Honourable Senator Batters, for the adoption of the twenty-fourth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), with amendments), presented in the Senate on February 26, 2015;

And on the motion in amendment of the Honourable Senator Mitchell, seconded by the Honourable Senator Dyck, that the twenty-fourth Report of the Standing Senate Committee on Legal and Constitutional Affairs be not now adopted, but that it be amended by deleting amendment No. 3.

Hon. Mobina S. B. Jaffer: There is an adjournment from Senator Plett on Bill C-279. I ask that, once I have spoken, the adjournment be back in Senator Plett’s name.


Honourable senators, I am speaking today at report stage of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity).

I would like to begin by thanking my colleagues and all the witnesses for their dedication and hard work. I would also like to take this opportunity to talk about one amendment in particular that was adopted in committee. It reads as follows:

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”.

In light of the arguments made by the various witnesses who appeared before our committee, I find that this amendment is very discriminatory and that it makes the pith and substance of the bill very problematic.

This amendment makes me very uneasy. It suggests that a transgender person is a threat to public safety, which is not so. On one hand we are saying that we are upholding gender identity, but on the other hand we are saying that transgender persons cannot use certain facilities because we perceive them as aggressors when we say that others are in a vulnerable situation.

There is therefore a presumption that these people are engaging in offending behaviour, and that is just another of the many difficulties they must face.

By way of illustration, I would like to quote a Vancouver poet, Ivan E. Coyote, who wrote a poem entitled The Facilities, which was inspired by a conversation he had with a young girl about how difficult it is for a transgender person to access public washrooms.


I can hold my pee for hours. Nearly all day. It’s a skill I developed out of necessity, after years of navigating public washrooms. I hold it for as long as I can, until I can get myself to the theatre or the green room or my hotel room, or home. Using a public washroom is a very last resort for me. I try to use the wheelchair-accessible, gender-neutral facilities whenever possible, always after a thorough search of the area to make sure no one in an actual wheelchair or with mobility issues is en route. I always hold my breath a little on the way out though, hoping there isn’t an angry person leaning on crutches waiting there when I exit. Sometimes I rehearse a little speech as I pee quickly and wash my hands, just to be prepared. I would say something like, I apologize for inconveniencing you by using the washroom that is accessible to disabled people, but we live in a world that is not able to make room enough for trans people to pee in safety, and after many years of tribulation in women’s washrooms, I have taken to using the only place provided for people of all genders.


I only read a very small part of the poem. However, I strongly encourage you to take the time to read it.

To continue, I would like to read an email I received from a mother who explained the difficult situation of her daughter, who is transgender. This is what she said:


The bathroom amendment to Bill C-279 [has] the trans community, including the network of parents with trans children, absolutely terrified that our children will become the victims, having to go to the bathroom in the room reserved for the gender to which they do not belong.

Gender and sex are not the same thing. It sounds so basic, but the majority of people I talk to about this are simply unaware of this factual reality. As a society, we have been so indoctrinated with the simple but erroneous idea that there are just two sexes in this world: male and female.

So what is the motivation behind this amendment? Fear — fear of the unknown, of change, of something that is different.

As transgender people become more visible in the world, fear can arise. Supposedly this bill is designed to protect women — sisters, daughters, mothers, wives. From what? I don’t believe there has been one single incident that was brought to court.

So. . . to my daughter. When she came out, she had to endure puberty as a male, so change is slow.

Presenting as a woman out in public was terrifying for her, particularly if she had to pee. The worst time was at Kennedy subway station in Toronto. She had to pee, had no choice, was loudly told to use the men’s room by a cleaner.

Imagine how frightening that was for her — a subway station and forced to use the bathroom that did not align with her gender.

I must say that things are much better now. University of Toronto has done a lot to make gender neutral bathrooms.

I sincerely hope that this bill does not pass and trans women and trans men remain safe in Canada’s bathrooms.

Honourable senators, I find this letter very concerning. As a mother and a grandmother, I cannot imagine the pain and feelings that trans people and their families have to go through.

I would like to share with you Nina’s letter:

Senator Jaffer, I’m writing to tell you my story as a member of the Canadian armed forces with 35 years’ service.

As far back as I can remember, I dreamed about what it would be like if I was a girl. As a small, skinny kid, I was frequently bullied. I frequently wore secretly my sister and mother’s clothes. Occasionally, my parents caught me. I am so lucky my parents never punished me as they thought I would grow out of it.

While still in high school, I joined the Canadian Forces in the Air Reserves. During my military career, I have been an aircraft technician for more than 30 years.

On the night that Saddam Hussein fired the scud missile that landed a few miles north of the Doha airport, I was changing a fuel quantity probe of a CF-18 in the dark with a flashlight, while the fuel ran out over the wing.

During my 35 years of service to Canada, I had many experiences, both good and bad.

I have served my country Canada faithfully. I never turned my back when the CF needed me and was always the first to volunteer. I continued to wear female clothing every chance I could.

Living in barracks was very hard, keeping my stash of clothes hidden.

In 2009, at age 47, feeling safe, I came out to my family and the CF as transgender. I have lived full time since August 2009. The CF was supportive and worked to help me transition in the workplace.

Having no more need to be secretive, I can finally be who I always was. I have a much happier life.

Unfortunately, this amendment assumes that I have done this just so I can use a female washroom and molest children.

What will this amendment mean for me as a 35-year member of the Canadian Armed Forces? Will this mean I have to use the male bathroom again? What about the shower room in a barracks?


Finally, I would like to share with you one more letter I received, which stated:

The problem is that one controversial amendment makes C-279 of no actual force, effect or usefulness, because it affords the heads of all federal agencies absolute discretionary power when it comes to dictating what facilities should be used, and by whom.

From my perspective, to equate a transgender person with a sexual predator is despicable. By suggesting that women need protection from sexual predators and disallowing transgender from washrooms-change rooms, you are implying gender variance is pathological. There is absolutely no evidence to support this. It is the same argument offered by previous generations to justify excluding gays and lesbians.

I write today to tell you there are a great many moms of transgender kids out there, who consider this an issue of diversity, not pathology. I hasten to add that though I worry about the safety of women too, I also know that women will be victimized by sexual predators everywhere, until we, as a society, change the way we teach our boys, pay our girls, and respond to mental illness.


Honourable senators, I hope that these letters have made you think about the impact of this amendment. Today, we have the opportunity and the duty to remedy this situation.


In British Columbia, we have the Gender Identity and Expression Human Rights Recognition Act. I would like to share with you the summary of the act because it makes it clear that it’s the government’s duty to protect the rights of trans people. It states:

This Bill supports the ongoing evolution of the term sex in Human Rights legislation by formally recognizing that the term is intended to include protection for Gender Identity and Gender Expression.

This Bill affirms the rights of transsexuals, transgenderists, intersexed persons, cross-dressers, and other groups who routinely suffer discrimination based on the expression of their gender or the gender identity they experience.

This Bill reaffirms the government of British Columbia’s broad and inclusive approach to protecting the rights and dignity of all people.

Ontario has also a policy on preventing discrimination because of gender identity and gender expression under the Ontario Human Rights Commission. Under the Ontario Human Rights Code, people are protected from discrimination and harassment because of gender identity and gender expression in employment, housing facilities and services, contracts, and membership in unions, trade or professional associations.

Barbara Hall, OHRC Chief Commissioner, said:

It has been a long struggle to have these rights clearly protected in the Code. Adding these grounds makes it clear that trans people are entitled to the same legal protections as other groups under the Code. The challenge now is to send a message across Ontario that discriminating against or harassing people because of their gender identity or gender expression is against the law. This Policy provides the tools to do this.

Let me repeat what OHRC Chief Commissioner stated:

The challenge now is to send a message across Ontario that discriminating against or harassing people because of their gender identity or gender expression is against the law.

Honourable senators, unfortunately, this amendment does the exact opposite. It sounds out a message saying that it’s okay to discriminate against trans people. It’s okay if they’re being attacked or harassed because they’re in a public facility where they feel they belong.

Finally, Saskatchewan’s position is quite similar to B.C.’s and Ontario’s positions. In a news release on the Transgender Day of Remembrance on November 20, 2014, the Saskatchewan government stated:

Hatred and violence directed to any individual, group or organization is a direct affront to democracy in Canada. Violence towards members of the transgender community must be denounced without equivocation.

Transgender Canadians deserve every benefit, consideration and accommodation afforded to them through citizenship. The Saskatchewan Human Rights Commission recognizes that the rights of transgender people are, far too often, attacked through acts of discrimination and violence. The commission has a legislated responsibility to address these wrongs when called upon. To be clear, complaints from transgender people are accepted and pursued to the fullest extent and with a broad and encompassing interpretation of the Saskatchewan Human Rights Code.


These provinces are well ahead of the federal government.


Honourable senators, let me remind you of one important point: Being transsexual, transgender or gender-nonconforming is a matter of diversity, not pathology. Thus, transsexual, transgender and gender-nonconforming individuals are not inherently disordered. I would like to conclude my speech by reminding all honourable senators that as senators one of our first duties is to protect all Canadians against discrimination, not to create or encourage discrimination against any group of Canadians.

Therefore, honourable senators, I encourage you to vote against the so-called “bathroom amendment.”

Hon. Grant Mitchell: Honourable senators, I spoke to the original motion on the report but I haven’t spoken to the actual amendment that I moved at the end of my comments at that time, if I could take a few moments now.

Hon. Donald Neil Plett: Honourable senators, I have a question for Senator Jaffer if she would take a question.

Could you explain to this chamber where any transgender person does not have the right, under the amendment I am proposing, to enter the bathroom of his or her choice? That is indeed not what the amendment says at all. There has never been a legislated right for any person not to enter a bathroom —

The Hon. the Speaker pro tempore: Is Senator Jaffer asking for more time?

Senator Jaffer: Honourable senators, may I have five more minutes?

Hon. Senators: Agreed.

Senator Plett: As I was saying, there is no legislated right — never has been. Where does my amendment prevent somebody from entering the bathroom of their choice? My amendment says, in fact, that if I believe I’m transgender and I want to enter your bathroom, I am allowed to do that. You are allowed to say that you feel uncomfortable and to ask the management, I guess in this case it might be the Clerk: “I’m not comfortable with Senator Plett in my bathroom, so could you ask him to leave until I’m done?” You have that right.

If my amendment doesn’t pass, you don’t have that right. If you did and the Clerk asked me to leave, I could bring him before the Human Rights Commission. But I still have the right to go into that bathroom. That hasn’t changed. Could you tell me where you have read in my amendment that I am disallowing, with that amendment, anybody from entering the bathroom of their choice?

Senator Jaffer: Senator Plett, thank you for your question. I guess for you and me, because we don’t have to use each other’s bathrooms, it is just speculative. I’m not going to speculate about whether I will let you use my bathroom because that situation will not arise because we both do not have the challenges that this bill addresses. The best answer I can give you is in the stories I read of the people who feel that the amendment introduced by you will threaten their quality of life. What I have already read answers your question that they do not feel comfortable with this amendment. That’s the best answer I can give you.

Senator Plett: That didn’t come anywhere near to answering the question because the same would apply if it wasn’t you or I. The same would apply if it was a transgender individual. That transgender individual has the right to walk into that bathroom. Since you used an illustration, let me use one as well.

I will read a short paragraph of the story of a woman in British Columbia who had known her now ex-husband for some 25 years. She’s 45 years old and has two children. She says here:

— my ex went to see the therapist at the local “gender clinic.” After two one-hour sessions that occurred over a few weeks, my husband was given a letter by the therapist that stated he was transgender. With that letter, he was able to immediately get his driver’s licence changed in British Columbia to state that he was female. He had not at that point taken any hormones, or any other medical procedures, or started to transition in any other way.


Now, this is her again saying:

So to reiterate, after TWO HOURS with a therapist, he was able to change his driver’s licence to female. This allowed him to legally enter any female sex segregated facility. My ex-husband is a smaller man but very “swarthy” in appearance and “well endowed” —

— and, again, these are her words — :

— to put it delicately. He looks and sounds very masculine. I can imagine that his presence in a bathroom would be very disconcerting to other women. In fact it was, when he entered the women’s washroom at my daughter’s gymnastics club and the other girls were understandably uncomfortable with his presence here. The mothers in that case would have no recourse to ask him to leave, and that’s unacceptable.

The amendment doesn’t prevent him or her from going there, but it allows people who are uncomfortable with a situation — and in all of my speeches, which I am sure you have read or listened to most of them, have I ever suggested that the transgender individual was a threat? I have never suggested that. I have said others might take advantage of that. But do you believe that this quite well-endowed individual should be entering his daughter’s gymnastics class bathroom?

Now, the last question that I will ask and I will put these together: You called this the bathroom bill. Over and over again, I have said that this is not the bathroom bill. When Senator Mitchell brought his amendment forward, he called it the bathroom bill. You have suggested it is the bathroom bill. The transgender community is tweeting the world telling people that I have called it the bathroom bill. I don’t want to call it the bathroom bill.

In fact, I used names, in my amendment with respect to a facility here: a correctional facility, a crisis-counselling facility, shelter or victims of abuse, washroom facilities, shower —

Some Hon. Senators: Order, order.

The Hon. the Speaker pro tempore: Senator Plett, Senator Jaffer’s time has expired.

(On motion of Senator Plett, debate adjourned.)