What’s holding up the Trans Rights Bill?
March 3, 20173 March 2017
The Senate appears to be up to its old tricks in delaying and frustrating legislation that could provide human rights protections for trans Canadians.
Bill C-16 is government legislation that would include gender identity and gender expression in the Canadian Human Rights Act and as a protected class in the Criminal Code.
Despite assertions that it would muzzle naysayers or criminalize transphobia, it would provide a recourse through the federal Human Rights Tribunal for discrimination against Canadians based on their gender in federally-regulated sectors, and recognize a statutory recognition that violence against trans people due to their gender is a hate crime.
The text of the bill is not new. It has been proposed, and debated, for more than a decade in Parliament, and has now passed through the House of Commons three separate times. It has never made it through the Senate.
This time around, it has been the target of a wave of opposition, after University of Toronto Professor Jordan Peterson, a teacher who has publicly rejected the idea that he should refer to his students by their preferred gender pronouns, came out against the bill.
Peterson told the Toronto Star that the bill would “require people under the threat of legal punishment to employ certain words, to speak a certain way, instead of merely limiting what they’re allowed to say.”
That interpretation of the bill has been widely lambasted as totally misinformed.
Still, his views have cropped up in the very place that has become a stumbling block for the bill: The Senate.
Bill C-16 swept through the House of Commons in short order, with support from 248 Members of Parliament from all parties — only 40 MPs, all Conservatives, opposed it. The CBA supported the passage of Bill C-16, and for years has advocated for the explicit inclusion of gender identity and expression as prohibited grounds of discrimination.
And though it reached the Senate in November, it has yet to make it past second reading, let alone to committee.
The explanation is due to a procedural quirk of the Senate that has consistently frustrated the trans rights bill. At any point in debate, a Senator is entitled to move to adjourn. That bumps debate to the bottom of the order paper, delaying progression of the bill. While it is not always meant to delay, it is known as a very effective tool to sabotage legislation.
On the first day of debate in the Senate, on November 28, 2016 Conservative Senator Yonah Martin moved to adjourn debate on Bill C-16. She did so again on December 1. When it came up again on February 2 this year, independent Senator Renée Dupuis moved to adjourn, though she stood to speak in favour of the bill when it returned to the Senate floor a week later. Following her speech endorsing the bill Senator Martin introduced a motion to adjourn debate once again. She did so again on February 9, 14, and 28. Senator Better Unger also adjourned debate herself on March 1.
When Unger moved to adjourn debate on Wednesday, many Senators refused — which is unusual for the consensus-loving procedural wonks in the upper chamber — but, ultimately, the ‘yays’ win the vote and the debate was adjourned once more.
Martin explained on the 14th that “I assure the chamber that my taking adjournment is not to delay, but that there are senators who do wish to speak to this, and understanding the importance of this bill, I adjourn for the remainder of my time.” When Senator Grant Mitchell asked who, exactly, the Senate was waiting for, Martin replied: “Senator Plett.”
Senator Don Plett is vehemently opposed to the legislation, and has been one of a handful of Senators who can claim responsibility for ensuring that the bill has not yet made it into law. His efforts to adjourn debate and slow the bill’s progression in committee have meant it has died on the order paper time and time again.
Where, exactly, Senator Platt was and why he was unable to make the debate is unclear, seeing as how he was present for four days of debate on the bill, and even stood to offer the following — incorrect — assertion that “the transgender community that believes there are only two genders, their issue is they want to be the other gender. Yet, 70-plus genders will be included in this bill.”
He went on that “this bill compels speech.”
Plett wasn’t alone. Senator Lynn Beyak contended that Bill C-16 would not meet the Oakes Test analysis of the limitations clause and touted Professor Peterson’s creative interpretation of the long-standing Human Rights Act.
Beyak worried that the compliance cost of not discriminating against transgender Canadians could cost the government. “For what? To appease a very small and vocal minority against whom, quite frankly, the clear majority of Canadians do not discriminate.”
Ultimately, the Conservative rump in the Senate that opposes the bill won’t be able to delay forever, but they can get pretty close. The bill was finally referred to committee on Thursday, where it will likely pass through without much trouble — as the Legal and Constitutional Affairs committee is mostly made up of Liberal and independent Senators. When the bill returns to the floor of the Senate, however, delay could begin all over again