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Second Reading of Bill C-16: An Act to amend the Canadian Human Rights Act and the Criminal Code

1st Session, 42nd Parliament, Volume 150, Issue 99

Hon. Lillian Eva Dyck: Honourable senators, I rise today at second reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code and to express my support for it.

Colleagues, as other senators have already noted, bills to protect Canadians who self-identify as members of the transgender community have been before us previously, and most recently as Bill C-279, an NDP private member's bill that was passed by the House of Commons and received in the Senate in 2013, but which never came to a vote. Senator Mitchell, the sponsor of Bills C-279 and C-16, gave an excellent overview of Bill C-16.He provided a full description of the historical background.

Bill C-16 is a government bill which aims to protect transgender people from hate crimes by including "gender identity" and "gender expression" in the list of identifiable groups in the Canadian Human Rights Act, and by including gender identity and gender expression as aggravating circumstances in the Criminal Code.

Colleagues, I support the intention and the legislative measures included in Bill C-16. The intention of Bill C-16 was laid out clearly by the Minister of Justice last May. It is meant to protect transgender individuals, to increase their safety from hate crimes and from discrimination in the workplace. It is well-documented that transgender individuals are targets for hatred and violence. The need for such a bill is documented. The mechanism of specifically including gender identity and gender expression as categories deemed to be aggravating circumstances is good because the generic terms — sex and gender — are vague. Furthermore, the reality is that specific groups such as women, Aboriginal women and transgender people are at much greater risk of being victims of violence.

Not everyone is in favour of Bill C-16, and the main objection championed by our colleague Senator Plett with Bill C-379 is that the bill may have the unintended consequence of allowing men to pretend to be transgender women and enter women's bathrooms or change rooms and expose their genitals. This hypothetical proposal has been dubbed "the bathroom predator scenario."

Colleagues, how often do women and girls encounter exhibitionists? After much searching, I was able to find only one report on the number of indecent acts and indecent exposures that have occurred in Canada. This number is helpful because it gives us an idea how common such incidents are. The data show that the incidence of indecent acts and indecent exposures is not rampant in our society. There was no information on where these criminal acts took place, but I doubt that public washrooms would be a preferred location for exhibitionists because of the increased chance of being apprehended compared to being in a public park or on a public street.

According to the Canadian Centre for Justice Statistics, in 1993-94, over a two-year period, there were 2,033 charges laid under the Criminal Code for indecent acts and indecent exposure in Canada. That's 1,017 incidents per year across Canada. It's most likely the victims were female. If we assume 1 victim per perpetrator, then in 1 year, 1,017 females were victims of indecent acts or indecent exposure. That is only about 1,000 females out of about 17.5 million in Canada. A woman has a 1 in 17,000 chance of being the victim of an exhibitionist.

Colleagues, why do transgender people need protection from violence and discrimination? Other senators have spoken about the victimization of transgender people, and the statistics are worth repeating. In 2010, nearly 500 transgender people were surveyed. Of that number, 20 per cent reported being physically or sexually assaulted, 13 per cent were fired, and 18 per cent were refused employment because they were transgender.

To give you a qualitative perspective on the experiences they face, I will quote from a report by Global News on June 15, 2016. Professor Gillis from OISIE at the University of Toronto said the following:

In the research I've done, almost every homosexual or transgender person has been called names, has been verbally harassed and assaulted.

Professor Gillis continued:

. . . I've had things thrown at me from cars: bottles, eggs, rotten fruit. I've been threatened with violence. I've had property destroyed. I've had harassment from neighbours. I've had harassment in university residences. It goes on.

Colleagues, how many transgender people are there in Canada? According to the Forum Research poll by the National Post in 2012, 5 per cent of Canadians identify as lesbian, gay, bisexual or transgender. A significant number, 1.7 million Canadians identify as LGBT. They will be protected by Bill C-16.

According to Statistics Canada data on hate crimes, 16 per cent of the victims of hate crimes are those perceived of having unacceptable sexual orientation. There were 186 such incidents in Canada in 2013, and 130 were violent assaults. If the LGBT subpopulation were 100 per cent of the population, rather than 5 per cent, there would have been 20 times 186, which is equal to 3,720 hate crimes in Canada against people that were considered to have unacceptable sexual orientation.

This number, 3,720, is greater than the 1,017 acts of indecent exposure in Canada in a year. In other words, the rate of hate crimes against LGBT individuals is greater than the rate of indecent acts against women. It should also be noted that according to the American Psychiatric Association, exhibitionists rarely do anything else but expose themselves. Victims may be traumatized by the experience, but they are not sexually touched or violated. Thus, if for no other reason than the frequency and the severity, we should at least be as concerned about hate crimes against those who are LGBT as we are about indecent acts against females.

Honourable colleagues, who sexually assaults girls and women?


First, I would like to say I think it's important to mention that girls and women ought to be protected from exhibitionists and sexual predators. Every parent and every grandparent — every family member — wants to protect their young girls from exhibitionists, and we also want to protect girls from the other more serious sex crimes, such as sexual assault and sexual interference.

According to the Statistics Canada report Measuring violence against women: Statistical trends, sexual crimes are the most common offence against girls under the age of 12. These offences are committed in their home, mostly by male family members. The report states that 56 per cent of the perpetrators are family members, while strangers are the perpetrators only 10 per cent of the time. For girls ages 12 to 17, the most common offence committed against them is physical assault. For this age group, the perpetrators are often most often casual acquaintances.

In 2011, 8,200 girls under 12 and 27,000 girls between 12 and 17 years of age were victims of violence in Canada. A total of 35,200 girls were victims of sexual and physical violence in 2011. By comparison, as I noted earlier, the number of female victims of an exhibitionist was 1,017.I repeat: 35,000 girls were sexually or physically assaulted compared to only 1,000 females who were "flashed."

Colleagues, clearly the sad reality is that it is not a stranger in a public place but a male family member who is more likely to commit a sex crime against girls under the age of 12. Girls are at much greater risk of being sexually assaulted at home by male family members than by strangers. Furthermore, it is clear that the risk to girls of being sexually and physically assaulted by their male family members and acquaintances is much greater than the risk of being traumatized by a stranger who exposes himself.

So, colleagues, how valid is this "bathroom predator" prediction?

After much searching, I was not able to find any reports verifying the hypothesis that granting human rights protection to trans individuals will lead to an increased number of indecent exposures by men pretending to be transgender women. Other senators have tried to determine whether this possibility is real. In response to a question from Senator Cordy about the possibility of there being an increased number of indecent exposures in public washrooms, Senator Mitchell said:

The information that you referred to was as a result of research done by Member of Parliament Randall Garrison, who contacted each of the jurisdictions in the United States. At that time there were four. All of them adamantly indicated that they had no episodes or events such as those who are opposed to this bill sometimes allude to.

There are eight provinces and one territory in Canada. In fact the first jurisdiction in Canada to recognize transgender rights was the Northwest Territories, in 2002 I think. Once again, I'm not aware of these kinds of episodes.

Transgender people are terrified of being outed. They are not going into washrooms to expose themselves in any way to that kind of abuse. They simply want to be able to live their lives quietly as other Canadians do without those kinds of fears.

In her second-reading speech, Senator Petitclerc stated:

Senator Cordy is right to question the existence of evidence that would prove these apprehensions. The reality is that transgender people already use public toilets all across our country. Even with my best efforts, I could find no indication that these fears, which have been maintained for so many years, are founded.

Colleagues, my superb assistant directed me to a Web page entitled A Comprehensive Guide To The Debunked "Bathroom Predator" Myth. It contains a wealth of information from numerous credible and informed authorities in the U.S.A., such as police officers, human rights directors and school administrators. All of them stated that protecting transgender individuals through legislation has not led to any increase in sexual predation in public washrooms, change rooms and so on. There were no observed increases in 16 states, 23 school districts and 4 universities.

I will cite two examples from this page. First, in 2007, the State of Iowa prohibited discrimination on the basis of sexual orientation and gender identity in public accommodations. In 2014, seven years later, the Des Moines Police Department spokesman Jason Halifax stated that he had not seen cases of sexual assault related to the state's nondiscrimination ordinance. He said:

We have not seen that. I doubt that's gonna encourage the behavior. If the behavior's there, [sexual predators are] gonna behave as they're gonna behave no matter what the laws are.

Second, in 1997, the City of Cambridge prohibited discrimination against transgender people in public accommodations. That's 20 years ago. In 2014, Cambridge Police Superintendent Christopher Burke stated:

Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.

In 2014, Toni Troop, the spokeswoman for the Massachusetts sexual assault victims organization Jane Doe Inc., stated:

The argument that providing transgender rights will result in an increase of sexual violence against women or men in public bathrooms is beyond specious. The only people at risk are the transgender men and women whose rights to self-determination, dignity and freedom of violence are too often denied. We have not heard of any problems since the passage of the law in Massachusetts in 2011, nor do we expect this to be a problem. While cases of stranger rape and sexual violence occur, sexual violence is most often perpetrated by someone known to the victim and not a stranger in the bush or the bathroom.

Colleagues, in these two —

The Hon. the Speaker: Senator Dyck, your time has expired. Are you asking for five more minutes?

Is leave granted honourable senators?

Hon. Senators: Agreed.

Senator Dyck: Colleagues in these two states, transgender individuals have been protected for decades by human rights legislation. Yet, there was no problem with males masquerading as women in order to enter public women's washrooms for sexual purposes. There was no increase in bathroom sexual predators in the 16 states, 23 school districts and four universities that were surveyed.

Colleagues, it is obvious that the predicted increase in sexual predation in public bathrooms as an undue consequence of providing human rights protection for transgender people has not happened. We cannot deny transgender individuals the legislative rights to protection because of the unsubstantiated and irrational fear for the safety of girls and women from male exhibitionists pretending to be transwomen to gain entry to women's bathrooms or change rooms.

How can we continue to deny nearly 2 million transgender individuals protection from hate and discrimination for no good reason? As senators, we have an obligation as leaders to protect minorities. We shouldn't let groundless, irrational fears prevent us from doing our jobs of examining legislation. As Senator Harder noted, Bill C-16 has been in the Senate since November. Senators opposite ought to speak now and not delay Bill C-16 needlessly.

In summary, first, the rate and severity of various hate crimes against LGBT individuals is greater than the rate and severity of indecent acts against women. We should be at least as concerned about the hate crimes against those who are LGBT as we are about indecent acts against females.

Second, the risk to girls of being sexually and physically assaulted by their male family members and acquaintances is much greater than the risk of being traumatized by a stranger who exposes himself.

Third, the predicted increase in sexual predation in public bathrooms as an undue consequence of providing human rights protection for transgender people has not happened.

Fourth, the "bathroom predator" scenario is not a valid reason to delay or derail Bill C-16.


Colleagues, to conclude, I support the intention and legislative measures of Bill C-16.

Some Hon. Senators: Hear, hear.

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