Category: Discrimination

Happy Pride: And a Word about Trans* Rights

8/4/2014

It is Pride Week in B.C. Many people are talking about the accomplishments so far, and what remains to be done. This post is about the current situation for trans* human rights.

Here's the skinny: we've already got trans human rights, even though human rights laws have not been changed to include 'gender identity' or 'gender expression' federally or provincially. While the fights for explicit human rights protections for trans* people are important, trans* people are already protected.

But how can that be?

The answer is that trans* people have won all the cases they have fought so far, federally or provincially, by relying on the ground of 'sex'. That has been true for almost 20 years.

Now, all of those cases have been brought by people who have transitioned or intend to transition: there are no cases so far in which the complainant says 'I am neither male nor female'; or 'I am cisgender but I am consistently misgendered'. However, some of the cases (including the first one in B.C.) concern pre-op trans* people. And there is no easy way for the law to distinguish between a preoperative trans* person on the one hand, and a gender variant person on the other. (Think about it: may take hormones, or not; does not experience themselves as the birth-assigned gender; may have surgery, or not; may experience transphobic discrimination...all true both of people who may be intending to transition to the "other" gender, and gender variant or gender non conforming people who do not).

So in my opinion it is virtually certain that gender variant and gender nonconforming people will be also able to advance successful human rights complaints on the ground of 'sex' if they are discriminated against.

So if that is the case, why do we need to change federal and provincial laws about human rights? As you know, one of the things on the queer still-to-do agenda is the inclusion of 'gender identity' in the federal and provincial human rights laws. The federal bill to amend the Canadian Human Rights Act is currently stuck in the Senate. Though that bill began with expanded language to cover both gender identity and gender expression, in its current form it will add 'gender identity' only to the list of protected grounds (along with sex, race, ancestry, place of origin, religious belief, physical or mental disability, etc).

In B.C. there has been no movement on adding 'gender identity' to the BC Human Rights Code to date. And there is no sign that the issue is on the legislative agenda.

Calling for changes to the human rights laws to SPECIFICALLY cover trans* folk performs an enormously important public education service. It also means that trans* people looking at those laws will be able to see immediately that they are protected from discrimination, rather than having to figure out that they will win if they use the ground of 'sex'. So those campaigns are enormously important.

But...there can be a downside: trans* people may believe that UNLESS 'gender identity' and/or 'gender presentation' are added to human rights legislation, they have no rights.
That would be a terrible result.

So: HAPPY PRIDE, and here's a toast - both to laws that specifically name trans* people, and to the fact that we can already fight discrimination against trans* people. When you are talking about and advocating for changes to human rights law, don't forget to mention that trans people already have protections.

Here's a link to our booklet, "Trans Human Rights".

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Law Society members vote on TWU June 10

6/5/2014

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In an unprecedented move, lawyers will vote on Tuesday whether to overturn the decision of their governors (called Benchers) about Trinity Western University.
TWU is a private Christian school that is opening a law school. The law school has been accredited by B.C., a move being challenged in the courts.
But in addition to being accredited, TWU also had to get every provincial law society to agree that it would recognize a degree from its new law school.
TWU has an odious requirement that a student must sign a covenant agreeing, among other things, never to have sex except in a HETEROSEXUAL marriage. BC's law society said it would recognize TWU law degrees notwithstanding the discriminatory covenant; the law societies of Ontario and Nova Scotia said no.
Read an excellent analysis by Jamie McLaren, one of the Benchers who voted against recognizing TWU degrees.
Lawyers: registration can be done on a 'fast track' (see the Law Society website); the Vancouver venue is the Convention Centre. Meeting starts at noon; secret ballot voting is open till 6 pm.

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Law Society's Special General Meeting re TWU is now set for June 10

5/11/2014

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June 10 is the date for the special general meeting of the legal profession called to overturn the decision of the Benchers (governing body of the profession) to accredit graduates of the new Trinity Western Law School.
The issue is that TWU will directly discriminate against LBGTQ people, because it will require students to sign and maintain a covenant not to have sex except in the context of a heterosexual marriage. There are also many other discriminatory aspects of the covenant that students are required to agree to.

The Canadian legal profession is deeply divided. Though the Law Society of BC approved accreditation of TWU graduates, Ontario and Nova Scotia did not.

Michael Mulligan, a Victoria lawyer, initiated a petition to require the Law Society to call the SGM. He needed the signatures of at least 5% of the profession; he got more than double that.
There are no proxy votes permitted. Lawyers have to show up in person to one of the locations of the meeting. This is especially problematic for lawyers who have court commitments.

I have had an overwhelming number of lawyers offer to help me to identify supporters and get out the vote on June 10. If you are a lawyer who knows whether you can or can't go on June 10, please email me at bjf@barbarafindlay.com. That will save us phoning you.

It is very rare to have an occasion where we have the opportunity and the obligation to stand up and be counted. I look forward to seeing everyone on June 10.

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Trans people can change birth certificates without surgery; children can change gender markers, new Bill says

3/10/2014

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The B.C. government today passed first reading on a bill which will permit trans people to change the gender marker on their birth certificates without surgery; and will enable children to change their gender markers.
This is a disappointing half measure. It is of course exciting that trans people can now have their gender changed by a simple declaration of their affirmed gender confirmed by a doctor or a psychologist.

But the government missed the opportunity to correct the pain and vicious discrimination that gender variant and intersex people experience. Though the government has made it easier to change gender, it has maintained the oppressive gender binary: everyone has to have either an M or an F.

It is hard to understand why the government did not simply cure the discrimination experienced by all trans people by taking gender markers off birth certificates. They could have done so while still collecting information about which babies were born with apparently-male genitalia and which were born with apparently-female genitalia, on the registration of birth forms.
Harriette Cunningham, an 11 year old transgirl in Comox, currently has a human rights complaint pending with respect to birth certificates, to have gender completely removed. That complaint is set for mediation in May. If mediation fails, the matter will be referred to a hearing at the B.C. Human Rights Tribunal.
Stay tuned!
The complete text of the proposed amendment can be found here.

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TWU is only for PLU...

2/24/2014

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TWU is only for PLU...people like us.

Trinity Western University is a Christian-based university in Langley, B.C.

It has stirred a storm of controversy with its proposal to launch a law school.

Why? Because its faculty, staff and students have to sign a contract agreeing not to have sex except if they are in a heterosexual marriage.

Sounds discriminatory? Absolutely. Straight people can have sex, as long as they are married; queers cannot have sex, even if they are married.

Queers are not the only target.

Prospective students must also agree to respect life "from conception to death"; not drink, do drugs, or smoke cigarettes on campus; and to chose only entertainment which is in accordance with biblical priorities.

Leaving aside for a moment the interesting question of how TWU would enforce such rules, the question is: Can they do that??? In a law school???

The answer, so far, is yes.

The Federation of Law Societies, the national certification body, has approved the TWU application to host a law school despite its discrimination against queers.
The school relies on freedom of religion as a defence.

Some people think that no one should ever be allowed to rely on 'freedom of religion'. In Quebec, the bill currently before the provincial legislature goes further and says that people in public service cannot wear religious items. I vigorously disagree with the Quebec approach, which I think is code for discriminating against (in particular) Muslim women.
But I equally vigorously disagree that an educational institution which is teaching prospective lawyers about the rule of law, including the constitutional requirement of freedom from discrimination, should be able to discriminate against students who want to study there.

The Globe and Mail also disagrees. Read their editorial on the subject.
The fight is not over. Despite the approval by the Federation of Law Societies, several province's law societies are considering how to deal with the issue, B.C. among them.

What do you think?

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The Pace of Change in the U.S. of A.

2/21/2014

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Change is speeding up in the U.S.
Same sex marriage is now legal in 17 states and the District of Washington. SEVENTEEN STATES!
The homophobic opposition is now trying a new strategy, of legislating protection for anyone who, on the basis of their religion, discriminates against queers. Freedom of religion trumping the right to equality and freedom from discrimination.
But this week, lawmakers in Idaho, Kansas, South Dakota and Tennessee either voted down, blocked, or backtracked those legalizing-discrimination laws in their states.
Canada is wrestling with this problem in the form of approval for a law school at Trinity Western University. TWU requires its faculty staff and students to sign a pledge which, among other things, requires students to refrain from sex except in a (you guessed it) heterosexual marriage, effectively making homophobia a foundational principal of the law school. The question is whether such a law school should be entitled to operate.

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Common law partners don't suffer social disapproval any more; so can't claim same financial regime as married partners, says SCC

1/19/2014

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The Supreme Court of Canada has held that common law partners do not experience disadvantage in Canadian society any more, and so they cannot claim that their equality rights are breached in comparison to married people.
The result is that a Quebec common law partner who broke up with her spouse cannot succeed in her claim to have the same laws applied to her as are applied to married or civil union partners when they break up.In Quebec v A, A had argued that her equality rights under the Charter of Rights were infringed, because when she broke up she could not claim a division of property or spousal support as people who were married or in a common law relationship could do. To succeed, she had to show that common law partners suffered disadvantage and that the exclusion from the law contributed to the continuing stereotype or disadvantage. The Supreme Court of Canada said that although there was a period of Quebec history during which de facto (in fact, rather than married) spouses were subjected to both legislative hostility and social ostracism, nothing in the evidence suggests that de facto spouses are now subject to public opprobrium.
This has been one of my more confused/confusing posts. Here's the thing: (1) yes, in B.C. common law and married partners, (including same sex) have EXACTLY the same rights and responsibilities - as they should - but in PQ the situation is different. They enacted a 'domestic partnership' regime which lets people essentially sign up for common law status (I call it 'marriage light' ). This case was brought by people who were neither married nor in a domestic partnership. Personally, I think the SCC got it wrong, because I don't think prejudice against people who are "not really married" is over by a long shot. And I think people kind of 'slide into' living common law: they get together, decide to live together...then maybe have children...then... find the relationship ending with no rights attached. The flip side though is that such a relationship ends with no responsibilities attached. For every ending, one partner wishes they did, and one is glad they don't, have a regime like a marriage regime governing the financial aspects of their breakup. NOTE: in BC you 'become' common law after you have lived together for 2 years. In Ontario, it takes 3 years; federally, it takes 1 year.

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Trans child wins against school board in Colorado

10/21/2013

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A Colorado first grader suceeeded in a human rights case against the school district. The school board had refused to permit her, a transgirl, to use the girls' washroom, pointing her instead to a gender neutral washroom in the nurse's office. for the full story:
The result would be the same in B.C. Even though 'gender identity' is not included in the B.C. Human Rights Code, trans people have been winning all their cases on the ground of 'sex' .

Some Catholic school boards in B.C. refuse to permit trans children to live in their affirmed gender, arguing freedom of religion. Tracey Wilson, age 9, is challenging their position.

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Remember the Charter of Rights? Not so fast...

9/14/2013

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The Canadian Charter of Rights and Freedoms, enacted in 1982, has become a cultural touchstone, guaranteeing that Canada is a place of freedom, respect, and equality.
Right?
Two events this week underscore the Charter's weaknesses. The first is an . underreported court case in Ontario, Tanudjaja v Canada. In that case, a coalition including B.C.'s Pivot Legal Services argued that the Charter imposed an obligation on the federal and provincial government to ensure that affordable, adquate and accessible housing is available for all Ontarians and Canadians. The coalition argued that section 7 of the Charter, a guarantee of of "life, liberty, or security of the person" imposed that obligation.
The case was thrown out as soon as it was filed, before any evidence was heard. The court said that the Charter imposes no positive obligation on governments to do anything. If the government gets into the affordable housing business, it must do so in compliance with the Charter which among other things guarantees equality. But the government has no obligation to get into the affordable housing business if it doesn't want to.
So your 'right' as a Canadian to "life...and security of the person" doesn't include the right to eat, or be sheltered.

The second event - this one all over the news - is Quebec's intention to introduce a "Charter of Values" which would prohibit the wearing of some religious symbols (all except Catholic crucifixes, in fact) if you work in the public sector - government, hospitals, educational institutions.

This law does contradicts the guarantee of 'freedom of religion' and the guarantee of 'freedom of expression' in both the Canadian Charter of Rights and Freedoms and Quebec's own Charter of Rights and Freedoms.

Courts have consistently upheld the rights of religious minorities: for example in Multani, a affirming that Sikh boys could wear kirpans (a religious symbolic metal knife worn under clothing) to school; and in Amselem, permitting Jews to erect succah, a small ritual dwelling, on their balconies notwithstanding a rue of the luxury condo where they lived that prohibited balcony structures.

Queers have objected, unsuccessfully, that 'freedom of religion' should not be a licence to discriminate against queers just because they 'sincerely believe' that being queer is a sin. In Trinity Western, for example, queers lost an argument that the Christian College should be refused accreditation as a teacher's college because it required all students to sign a contract agreeing not to engage in sexual 'sins' including homosexuality.

So it seems obvious that Quebec's 'Charter of Values' would be thrown out because it contravenes the Charter of Rights. Because the Charter of Rights is part of the Constitution of the country any other law that conflicts with it can be declared null and void.

Right?

Not necessarily.

The Quebec government can throw in a 'notwithstanding' clause. Any government is permitted to enact a law which they know contradicts the Charter of Rights if they include a section that says the law is valid notwithstanding the Charter. If the 'notwithstanding' clause is included, the Quebec Charter of Values would be good for five years, after which it would have to be reenacted. Governments have to think twice about using the notwithstanding clause, because they know that every five years they will have to pay the political cost of enacting a Charter -violating law.

We queers must stand firmly with the religious minorities in Quebec, even though 'religious freedom' is often pitted against queer rights. Because what is at stake is our country's very soul. Unless we all recognize that conflicts among rights - religious freedom and queer rights, or any other conflict - must be settled by the courts, we will inevitably end up with the shameful spectacle of governments enacting legislation designed to hurt minorities just to get votes. And when that day comes, we will be among the minorities targeted for legislated bigotry.

The Canadian Charter of Rights and Freedoms is deeply flawed because it does not even pretend to address the worst inequalities among Canadians - the inequalities created and perpetuated by poverty. And the Charter is fragile: if ever it becomes politically acceptable to tack the 'notwithstanding' clause onto any piece of legislation which is currently in favour, all of our Charter rights will succomb.

But, as minorities of any kind - sexual, racial, religious, disabled, immigrant, women (though not a minority!) the Charter is all we've got.

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How would this genderqueer man be treated under B.C. law?

8/24/2013

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B. Scott was hired to be a fashion reporter on by a California TV network. But when he came to work wearing what they considered to be "women's clothes" they insisted first that he change into a blazer and slacks and pull his gorgeous long hair into a pony tail; then they terminated him.
Scott is filing a discrimination suit under California law which protects people from discrimination on the basis of gender, and his legal advisors say they expect he will succeed.
What would happen if that had happened to B.Scott in British Columbia?
It is hard to say.
B.C.'s Human Rights Code offers protection on the basis of 'sex', but there is no explicit protection on the basis of 'gender identity' or 'gender expression'. This has not been a problem for trans people in B.C. to date, all of whose claims have succeeded on the basis of 'sex' because 'sex' has been interpreted to cover protection for trans people.
The question is whether this genderqueer man - who identifies as male but presents in "women's" clothing, would be protected, or whether it is necessary to have 'gender expression' specifically listed as a prohibited ground of discrimination.
Because there hasn't been a case like this so far it is impossible to say. However on the positive side there is a rule that says that human rights law should be given a 'fair, large and liberal' interpretation to protect the most people. Certainly anyone in this situation should file a human rights complaint on the basis of sex.
For more on this story: http://www.chicagodefender.com/index.php/culture/22787-she-s-the-law-why-b-scott-has-the-right-to-sue-bet-network-for-gender-discrimination-damage-to-reputation

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<<Previous

Happy Pride: And a Word about Trans* Rights

Law Society members vote on TWU June 10

Law Society's Special General Meeting re TWU is now set for June 10

Trans people can change birth certificates without surgery; children can change gender markers, new Bill says

TWU is only for PLU...

The Pace of Change in the U.S. of A.

Common law partners don't suffer social disapproval any more; so can't claim same financial regime as married partners, says SCC

Trans child wins against school board in Colorado

Remember the Charter of Rights? Not so fast...

How would this genderqueer man be treated under B.C. law?

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