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Happy Pride:  And a Word about Trans* Rights

8/4/2014

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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, o
ne 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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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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Trans human rights re: sex reassignment surgery

3/6/2014

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Jackson Flagg's human rights complaint is against the province with respect to trans health services.  


"The gist of Mr. Flagg's complaint is that the Ministry, who funds chest surgery for a number of different medical conditions, treats transgender patients differently and adversely. Mr. Flagg states that the Ministry acknowledges that GRS, including top surgery, is a medically-necessary health service. Mr. Flagg provides examples of medically-necessary chest treatment for cisgender people ("cisgender" means someone whose gender identity matches their sex assigned at birth). His examples are a cisgender woman who requires a breast reduction, a cisgender woman who has a significant amount of asymmetry between her breasts, or a cisgender man who has gynecomastia (benign enlargement of breast tissue in males)."  


The tribunal has acceptd the complaint though it was filed outside of the 6 month time limit. 
To read the case of Jackson v B.C.

 Stay tuned! 

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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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Wonderful resource for gender training

9/5/2013

1 Comment

 
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Sam Killerman has just published a wonderful resource for people doing training about gender (and other oppressions).
He is making the pdf of his book available for free.  Check it out - I especially like the genderbread person!
The Social Justice Advocate's Handbook:  A Guide to Gender

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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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That's not funny!  Or is it?

8/13/2013

1 Comment

 
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What do you think?Should the comedian at Zesty's Restaurant be permitted to harangue a lesbian in the audience by directing homophobic and sexist comments at her? 
Is that "freedom of expression" for the comedian, or "freedom from harassment" for the audience member?
The B.C. Human Rights Tribunal that the comedian, Earle, had violated the Human Rights Code when he included homophobic and sexist zingers in his role as the MC of an open-mic night at Zesty's Restaurant on Commercial Drive in Vancouver.  That decision was recently upheld by the B.C. Supreme Court.  Earle and Zesty's were ordered to pay damage totalling $22,500.
The court held that, while Earle's freedom of expression was infringed, the infringement to protect against harassment on the basis of sex and sexual orientation was legally justifiable.
The case has been a controversial one with many commentators - including for example the queer magazine Xtra - taking the position that the complainants should get a life and find something more important to complain about.
What do you think?


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Trans loss in ON re secondary health services

7/29/2013

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An Ontario human rights tribunal ruled against Michelle Brodeur and Erica McCowan.  They had claimed that they were discriminated against by the Ministry of Health and Long-Term Care because they could not receive breast augmentation services (for an MtF transwoman who had no breast development), depilation (facial hair removal), or voice therapy.

However, the July 15 decision is not a true loss.  The tribunal concluded that the complainants had failed to provide the expert and other evidence necessary to establish their claim.  Had they provided that evidence, the result might have been different.

So the take-away lesson is: if you are taking a human rights case, make sure you have your ducks in a row.  Get some advice about what kind of evidence you are likely to need.

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Happy Day in the U.S.of A!!

6/26/2013

1 Comment

 
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Today is a big day for U.S. queers.

The U.S. Supreme Court today ruled against the "Defence of Marriage Act", a federal law which provided that same sex partners could not get federal spousal benefits even if they lived in a state where same sex marriage was permitted, and had married.

The case began when Edith Windsor's partner, Thea Spyer died.  The two had married in Canada in 2007, after being engaged for forty years.

Yes, forty years.

After her partner passed away, the federal government ruled that she had to pay more than $300,000 in additional estate taxes because the federal government did not recognize Windsor's marriage to Spyer.

Windsor, now 84, celebrated her victory along with the rest of the country.


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