Why Trans-gendered People Need Human Rights Protection
Let's start at the beginning. What are human rights?
At the most elementary level, we can say these are rights we are entitled to because we are human and because as human beings and members of this society we are all entitled to be treated with dignity and respect. They can be classified as legal rights, such as the right to a fair trial. They include political rights, such as the right to vote. And they include equality rights, to ensure all other rights and freedoms are available without discrimination. Increasingly, social, economic and cultural rights are considered to be human rights, as they address the rights to things such as food, shelter, a decent standard of living and the protection of one's cultural identity and heritage.
Where did the idea of human rights come from?
It wasn't until 1948 that the first extensive international document, The Universal Declaration of Human Rights, was created by the United Nations. This was in response to the horrors perpetrated by the Nazi regime during the Second World War. It was because of this declaration that human rights legislation was developed in Canada. Human rights are enshrined in the Canadian Charter of Rights and Freedoms, part of the Constitution and also in The Canadian Human Rights Act and under provincial and territorial rights legislation.
How are human rights protected in B.C.?
The 1997 B.C. Human Rights Code created two bodies -- the B.C. Human Rights Commission, which investigates and mediates complaints and a separate B.C. Human Rights Tribunal. The commission's role is to investigate and mediate complaints, educate the public about human rights and identify and eliminate systemic discrimination. The tribunal adjudicates complaints if the commission cannot resolve the complaint. The chief commissioner has the overall responsibility to ensure the fair, effective and efficient administration of the code.
The code prohibits discrimination in the following areas: publications, employment, accommodation, services and facilities, the purchase of property, tenancy, employment advertisements, wages and by unions and associations. "Services" refers to any service that is customarily available to the public, such as restaurants and public pools.
What is discrimination?
In human rights law, it means making a distinction between people or groups on the basis of certain characteristics that results in a negative effect. These characteristics written into the B.C. Code are called prohibited grounds.
In three of the areas where the code prohibits discrimination -accommodation, services and facilities -- the code lists the following grounds on which discrimination is prohibited: race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex and sexual orientation. In the area of employment, discriminatory practices based on the additional grounds of age, political belief and convictions for criminal or summary offences that are unrelated to employment, are also prohibited.
Where do trans people stand in regards to human rights protection?
There is no explicit protection for trans people in any human rights legislation in Canada. The B.C. Human Rights Commission, in its report Human Rights for the Next Millennium, recommended a number of amendments to the Human Rights Code. One of those recommendations, made after an extensive consultative process, was to prohibit discrimination on the basis of gender identity.
Why is specific protection necessary?
When trans people have filed human rights complaints, they have been filed under the grounds of sex, disability or sexual orientation. This does not provide adequate protection, and there are obvious shortcomings when these are examined in light of how trans-people identify themselves.
Some don't identify as either male or female, and therefore cannot argue discrimination on the basis of sex as it is commonly understood and interpreted in the legal arena.
As for using disability as a ground, that can be interpreted as an affront to one's dignity. Many trans people maintain trans identity is neither a disability and certainly not an abnormality, and find it demeaning to assert they are disabled, simply because normal variations in human nature are ignored or unrecognized in society's official dualgender identity classification system.
Using sexual orientation can also be inadequate and inappropriate as a ground for complaint. Trans people may be heterosexual, lesbian, gay or bisexual. Clearly, one's sexual orientation has little in common with how one may identify their gender.
Is B.C. the only jurisdiction looking at this change?
No Our commission was the first to call for this type of protection.The Ontario Human Rights Commission and the federal Human Rights Act Review Panel also recommended that human rights legislation be amended to include gender identity as a protected ground.
What have other countries done to protect the rights of trans persons?
European Convention articles extend some protections and there are four jurisdictions in Australia that specify transgender or transsexual in their anti-discrimination legislation.
In 1996, Singapore announced that the government would recognize the new gender identity of trans people for all purposes, including marriage laws. Closer to home, Minnesota was the first state to enact a non-discrimination statute that specifically includes trans people within the definition of sexual orientation.
Does the Commission protect the rights of trans persons now?
The commission has always considered that the code does offer protection against discrimination on the grounds of gender identity.
The first tribunal decision that established rights for trans people under the grounds of sex was the case of Tawny Sheridan. The tribunal ruled that she had been discriminated against on the basis of sex and disability, concerning a decision by a Victoria nightclub to refuse access to the club because of complaints of trans people using the women's washroom.
In the fall of 1999, the tribunal also upheld sections of a complaint by Susan Mamela, who was terminated from volunteer duties at the Vancouver Lesbian Connection. The tribunal found that one of the factors that led to Mamela's dismissal was her sex.
Another decision released in the fall of 1999 was the case of Leslie Ferris, a taxi dispatcher, who alleged that her union discriminated against her concerning her use of the women's washroom at her place of employment. The tribunal ruled that her complaint was justified on the grounds of sex and disability.
The most recent tribunal hearing concerning trans people concluded last February and we are still awaiting the decision. This case concerns the complaint by Kimberly Nixon, who was denied continued training as a volunteer with the Vancouver Rape Relief Society.
Rape Relief filed a petition with the B.C. Supreme Court, seeking an order to quash the tribunal hearing because "gender identity" is not included in the code. Last June, Justice Davies of the B.C. Supreme Court dismissed the petition, and the ruling found, and I quote in part:
"I am accordingly of the opinion that the prohibition against discrimination on the basis of sex in the 1984 Act and the present code includes a prohibition against discrimination on the basis of transsexualism."
The commission remains of the view that gender identity should be added to the code. We are aware of the serious concerns expressed by the trans community that a tribunal or higher court may narrowly construe the code and deny protection to its members.
Would adding trans-gendered solve the problem?
It is equally, if not more important, to devote resources to public education and promoting public interest and awareness of human rights issues.
An adjudicative and litigious approach to human rights is a limited approach to ensuring a climate of respect and understanding and building a world where everyone has a full and free opportunity to participate in all aspects of our democratic society.
We have led workshops at conferences. We have also helped representatives from women's groups and trans groups to come together to establish the TransAction network.
The commission has funded a Trans Inclusion Policy Manual for Women's Organizations, in the final draft stages, and I think it will prove to be a very useful resource and educational tool for everyone, not just women's groups.
Do you think progress is being made?
Yes. More organizations are receptive and eager to welcome trans and intersexed women to their agencies, while others continue to oppose it, believing such a change will undermine women's services. Some non-trans women question if a trans-woman, who has not shared the full experience of being a woman from birth, can truly understand what it's like to be a woman. Some fear that male sensibilities will intrude into women's spaces. While these may appear to be fair and noble concerns, they are based on assumptions, not experiences.
I believe that women's organizations must listen and be open to trans and inter-sexed women -- society reached an understanding of gender discrimination by listening to women -- and so women's organizations can learn about the lives and gender oppression suffered by trans people by listening to them. Trans people suffer discrimination from the same standardized gender-based system in many of the same ways that women do -- and social justice for all women means that discrimination in all its forms is not to be tolerated, including transphobia.
I believe that women's organizations have the same responsibility not to discriminate as any other service or workplace, and they're just as vulnerable to human rights complaints. The rulings have shown that trans women are entitled to be treated as women, that they're entitled to volunteer with and provide services at women's organizations and that excluding particular groups of women without individual assessment or accommodation may be problematic and discriminatory. The essence of the equality interest that the Human Rights Code promotes is accommodation of differences. And the code is designed not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within our society who have suffered disadvantages by exclusion from the mainstream.
Any final thoughts?
No one knows what the future will hold for human rights and for increased human rights protection for trans people or others. What I do know is that nothing changes without involvement and action.
Remember that Mahatma Gandhi once said, "Be the change that you want to see in the world."
Photo (Mary-Woo Sims)…