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Third 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 133

Hon. Lillian Eva Dyck: Honourable senators, I rise today to speak on Bill C-16. I wasn't really intending to do so, but I felt compelled to speak about it. I feel very honoured to follow the previous speakers as a scientist, and now a senator, debating from a different kind of platform.

Today I wanted to focus on the aspect of compelled speech and freedom of speech, which is pretty much what our colleague Senator Joyal has just done, and what this means in terms of the balance of rights between a person who might identify as a transgender individual versus someone else who is interacting with that individual.

The phrase "compelled speech" is an intriguing one. What does it actually mean? I don't think people really understand what that phrase means. In some sense, I think that's probably a deliberate tactic. That phrase has been invented to convey the concept that you'll be compelled to call a transgender individual by a pronoun like "zi" or "zir," or some of these other ludicrous pronouns, frankly, that no one has or even heard of until the last two months.

In fact, it reminds me of the phrase that has been touted here before, namely, "unborn child." What is an unborn child? An unborn child is a fetus, but if you use the phrase "unborn child," it sounds much more alive than if you use the word "fetus."

Words convey certain meanings and invoke certain ambiguity in the individual. With "compelled speech," we all rise up and say, "No one is going to compel me to say or do something that I don't want to." We kind of get our backs up and say that it's infringing upon my rights as an individual to say what I wish to say.

As other senators have said previously, there's nothing in Bill C-16 that will force someone to call a transgender individual by any of these unusual pronouns. But "compelled speech" is really talking about limiting free speech. It's really an aspect of freedom of speech. I think what we need to consider when we talk about freedom of speech is what Senator Joyal has just said, namely that it is a balance. When you're speaking, you are speaking to someone in a dialogue. It isn't just about your rights but also about the rights of the person to whom you're speaking and having a conversation. It's a very important aspect of the bill.

It really bothered me when I thought about this aspect of "compelled speech" and the amendment. Frankly, I didn't vote for the amendment. I was against it, but later I thought that if we had accepted the amendment, it would be a bit dangerous because it would then validate that concept that somehow there is such a thing as "compelled speech." So I think it was good that the amendment was not incorporated because it validates a nebulous concept, which is misleading.

Senator Joyal also said that when it comes to "gender identity," this is not just two words. This is very important. Every single human being has a gender and sexuality. That is essential to who you are. For a transgender individual, their gender identity is as important to them as it is to us, but they're being singled out because they don't fit into this illusion of a binary concept of just being male or female. For example, for a male, if you call a man "her" or "she" or you call him "nancy," that's usually interpreted as an insult. If you continue to call that man "nancy" or "she," then you continue to insult that man because I think the man would like to be called by the proper pronoun.

Similarly for me, as a woman, if someone calls call me "he" — and my hair is short, so sometimes I am called "he" — the person is apologetic because they didn't want to insult me. If they continue to call me "he," however, then I know it's an insult. I would say, "I am a woman. I would like you to call me by the proper pronoun." If you continue to do that to me, I would consider that harassment and I could probably file a harassment case under the human rights laws. The important thing to remember in human rights law is that perception is vital. The perception of the person who feels they are being harassed is vital.

So the perception of the transgender individual is that for a trans woman to be called "he" repeatedly is a putdown, like it would be to call me "he." You know by the person's body language and by their reaction that it's offensive and an insult. That person would then say, "Please don't call me that. If you continue to do that, it is most definitely a case of harassment."

Honourable senators, it's very important that we remember that gender identity is a key component of who we are as human beings, and this idea of perception is key to the issue of harassment and discrimination. I think Senator Joyal talked to you about this when he said, "We have to put it into the proper context." Perception is a key concept that must be considered because perception of harassment is the key to understanding the dynamics of harassment between what could be called the harasser and the victim.

This concept of perception is also critical to understanding the concept of freedom of speech. As pointed out earlier, freedom of speech does have limits. There is no such thing as complete freedom of speech. We always have to balance it with the rights of the person with whom we're having a conversation and with their right to live the life that they can lead in this society, free from harassment.

Even here, in the chamber, we do not have unlimited freedom of speech. Our Rules do not permit unparliamentary language, or sharp or taxing words. We do that so we can have proper conversations and so that we're not unwittingly putting down another senator. We always call each other "honourable senators," or "senator," or "honourable colleagues." We don't call each other formally by our first names here in the chamber.

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As an example, recently when Senator Plett felt or perceived that Senator McPhedran had called him a bigot, he raised a point of privilege and the Speaker ruled in his favour. In that case, Senator Plett's perception was validated, so that underlines a concept of perception. Senator McPhedran said it was not her intention to offend Senator Plett. So there was a ruling made on the balance between what was said, what was intended and what was perceived. That's what freedom of speech is all about, and that's also what harassment is all about. If Senator McPhedran had continued to speak along those lines, then she could have been found guilty of harassment, but she did not do that.

How does this relate to Bill C-16 and pronouns? I've already outlined that. If I or any other person were to call a trans woman by the pronoun "he," that trans woman may well be offended. If that trans woman spoke to me and said to me, "Please, I would rather be called 'she' than 'he'," and I ignored that and continued to call that trans woman "he," that would be discrimination. She could take this case to a human rights tribunal, and in all likelihood I would be found guilty of harassing her because I called her by the wrong pronoun and had done it willingly and as a way to discredit her, humiliate her or make her feel less than what she was really worth.

Continually calling someone by the wrong pronoun can be a way to put them down. It is a way to harass someone. It is somewhat akin to name-calling. It's not exactly name-calling. As anyone from a different race knows, race baiting, calling you by all those names we don't dare repeat in the chamber, is a way to put that person down. In my view, calling someone by the wrong sexual identity, the wrong gender identity, is the same thing because your race and your sex define who you are and we should respect that. We should respect the wishes of those who wish to be called by the correct pronoun and terminology.

I support the passage of Bill C-16 because it goes beyond what provincial human rights acts have done. Provincial human rights acts will prevent discrimination on the basis of employment or entry into public places, but this bill will actually amend the Criminal Code. That is really important because the Criminal Code applies to the whole country and will protect transgender individuals who we know, the statistics prove, are more likely to be physically assaulted.

By strengthening the Criminal Code to ensure that there are sufficient consequences for physically assaulting a transgender individual, we are actually enhancing their safety. The human rights acts will not do that. They prevent you from harassing the person, but the Criminal Code prevents you from physically harming them. The rate of physical harm is severe, so I'm in favour of this bill.

Hon. Lynn Beyak: I have a question, if I may.

The Hon. the Speaker pro tempore: Will you take a question, Senator Dyck?

Senator Dyck: Yes.

Senator Beyak: I took a university tour of the United States for research in 2008, and compelled speech was on the dockets then because of the First Amendment in the United States, so it's not a new term. I guess words do matter, but an unborn child three days before birth is a child. A fetus is three, four or five months. People use that terminology because it's a fetus right up until the birth, of course. However, to say here in Canada when we're paying taxpayer money to abort babies at eight or nine months, it's a debate that we maybe should have. An abortion at three months perhaps. We need a law in Canada.

I was just questioning, as a woman, why you would support Bill C-16 when feminists have fought for so many years to protect women from the violence perpetrated against them by men. This will allow men to go into women's change rooms and bathrooms across the country. I would like your opinion.

Senator Dyck: Senator Beyak, I explained that question about the bathroom predators in my speech at second reading, that the predators in the bathroom is an overinflated fear being inflicted upon the country and that we also have to balance the rights between the transgender community and the rest of Canada. If you were to look at my second reading speech, you would find the answers there.

Senator Beyak: I did read it, but I think that one incident of violence in a bathroom against a woman is one too many.

Hon. Dennis Glen Patterson: I would thank senators who have spoken on this bill, which has gained such symbolic importance, but I'd like to particularly thank Senator Frum for her comments yesterday. I wish to associate myself with them and take a few moments to reinforce them.

She has eloquently expressed what I have considered from the beginning to be a serious flaw in the bill, which is that the definitions of the protections for gender identity and gender expression are, as she so eloquently stated, vague, loose and imprecise. As she said, the bill creates "statutory protection of an individual's choice" — and I thought this was very eloquent — coming from a woman in particular — "of fashion, makeup and hairstyle." That's what gender expression means, she said, "your look, your air, your manner and countenance." Now, how precise is that?

She also pointed out to me the striking irony of a bill supposedly about advancing human rights in establishing gender expression and identity as protected grounds as opposed to transgender as protected grounds, redefining what it means to be a woman from something biological to something defined by external experience. I agree with Senator Frum that this bill will, I fear, trigger litigation from women who seek to prove a right to women's-only safe spaces and sex-segregated activities. Senator Joyal has also predicted there will be litigation from this bill.

It was very impressive to me to hear a woman's point of view about how a woman may desire a female-born woman roommate, be it in an athletic or spa facility, prison cell, elder care facility or abuse shelter, where a woman may wish to be protected from, as Senator Frum described it, the male gaze.

Now, I do want to be very clear that, like everyone else I think who has spoken on this bill, I do fully support the right of transgender individuals to enjoy the same protections as every other member of society. I've met with transgender individuals about this bill who have urged me to support it, and I pledged to give it serious consideration.

But my concern remains that in protecting this right I'm also concerned that we must respect the rights of other members of our society. This vague definition of gender expression gives me cause to worry about protecting the rights of others.

So in thinking about how to vote, I decided I must register my concerns about this vague definition of gender identity and gender expression and the consequences of that vagueness. This bill will be litigated, and those who think their rights have been infringed will have to go to the time and expense of seeking redress from the courts.

Having said all that, this is a government bill. I do believe that there is an important role for an official opposition in our bicameral Parliament, and I was pleased to see Senator Harder reaffirm that yesterday in speaking to a point of order on another bill.

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I also believe that even as independent senators — by the way, I do consider myself as an independent senator who's grateful to be working with like-minded independent senators in the Conservative caucus — we should respect the will of the elected members of the other place, as I do, unless there are exceptional circumstances of human rights, constitutional rights or laws that violate civil rights and are unfair to regions or minorities. So I do fear that this bill will impact some rights while advancing others, but I am confident the courts will deal with that.

By the way, I'm frankly not persuaded by the free speech arguments.

Your Honour, though it is badly drafted, to me, this bill has become a symbol of tolerance and modernity, so I do hope that it creates better lives for those who have been persecuted, though I frankly doubt that laws enacted even by Parliament can ever do much about altering human behaviour.

With all those reservations and having put them on the record, I'm going to support the bill. Thank you.

The Hon. the Speaker pro tempore: Senator Patterson, would you accept a question?

Senator Patterson: Yes.

Senator Dyck: Thank you, Senator Patterson. I know often people say laws do not alter human behaviour. I think that's true to some extent, but let me ask you a question about laws regarding drunk driving. Has that altered human behaviour?

Senator Patterson: I think I said not all laws alter human behaviour.

I think, in fact, what happened, though, with the drunk driving laws, which have been on the books for decades, there was probably more of an impact on public awareness, and campaigns of those like Mothers Against Drunk Driving had more to do with the reduction of impaired driving offences in Canada. In that connection, may I say that one good thing about the hours we've spent debating this bill and the attention it has been given in the media, I do believe and hope that it has elevated the situation of transgender people, dramatized the persecutions that we've heard about them suffering. I hope public awareness will improve their situation, even though I don't think the mere words of a statute will have that much impact.

Senator Dyck: I have a supplementary question. Yes, I think public awareness is critical to changing the behaviour of people.

But with regard to drunk driving, in Saskatchewan, we have just increased the penalties for drunk driving because despite that public awareness, even one of the ministers responsible for highways and traffic, who was warning people not to drive while drunk, was convicted of drunk driving. Therefore, now the laws have been changed to increase the penalties.

Clearly, I think the penalties are important. Would you agree it's a combination of penalties as well as education?

Senator Patterson: Well, I would agree that laws can have an impact if they're well drafted. I don't think this is a well-drafted law.

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