By: Jemma Fishman | VP of Research
In the past month, Canada has witnessed a dramatic surge in anti-trans demonstrations across the country, protesting against learning about gender identities in schools and gender-affirming healthcare. Many of these protestors argue that gender diversity is harmful to children because it is entrenched in ‘sexualization’, leading to the arguments that transgender people, and their presence in public spaces, infringes the rights of children to safety. While Canadian human rights have historically protected the rights of transgender people, this particular opposition to transgender individuals on the basis of protecting children poses strikingly new avenues in which Canadian human rights law could be overturned.
Background
Canadian legislation has taken strides to protect the rights of transgender people. Section 15 of the Canadian Charter of Human Rights, for example, demonstrates that everyone is entitled to “equal protection and equal benefit of the law without discrimination” (Canadian Charter, 1982, s. 15 (1)). More significantly, Bill C-16 prohibits discrimination based on “gender identity” and “gender expression”, thus explicitly protecting transgender people in both the Canadian Human Rights Act and the Criminal Code (Bill C-16, 2016. s. 3(1)).
These human rights laws have already begun combating discrimination against transgender and gender non-conforming individuals in Canadian courts. In N.B v. Ottawa-Carleton District School Board, parents of a six-year-old girl argued in the Ontario Human Rights Tribunal that their daughter’s teacher infringed her rights to sex and gender identity by discussing gender diversity in class (N.B v. Ottawa-Carleton District School Board, 2005, para. 195). The ruling against this claim marked the first time that Canada deemed education on gender diversity as appropriate (Blackwell, 2022).
Recent Developments
Nevertheless, the recent protests against transgender people suggest that more challenges in human rights are on the horizon. In light of recent outcries, Conservative members at a policy convention this past September voted 69% in favour of a policy banning gender-affirming healthcare used to treat “gender confusion and dysphoria” for minors (Cullen, 2023). Conservative party leader, Pierre Poilievre, has not expressed his support for this policy, but his agreement would have large effects on transgender youth whose well-being rests on gender-affirming healthcare. In addition, Ontario Premier, Doug Ford, spoke in opposition to policies that allow children to decide what pronouns they would like to use in the classroom, calling it ‘indoctrination’ (Freeman, 2023).
Future human rights violations?
Currently, there are no laws outlawing gender-affirming healthcare or education on gender and sexuality in Canada. However, no right under the Charter is absolute and they can be limited by “other rights” or “national values” (Canadian Charter, 1982, s. 1). The recent protests suggest the potential for Canadian law and policymakers to limit the rights of transgender Canadians, especially transgender youth, if they believe it infringes the rights of children. While everyone’s civil rights are protected by Canadian law, the growing belief that transgender and non-conforming persons can harm children by threatening traditional ideas of the family and identity could have a significant influence on legally binding case law in the future.
These concerns become even more apparent since the United States has taken action. 156,500 transgender youth face restricted access to gender-affirming care in 32 states due to new bans (Redfield et al., 2023 p. 3). In addition, The United States has also placed heavy restrictions on teaching gender diversity and sexuality in schools. A significant example of this is the infamous, ‘Don’t Say Gay’ bill passed in Florida in 2022 by Governor Ron DeSantis which prevents teachers from educating students in kindergarten on these subjects (The Associated Press, 2022). While American legislators may argue that these bills solely protect the children’s rights to privacy and parents’ rights to educate their own children on gender and sexuality, they create a larger space for more discrimination and hate against transgender individuals and the greater LGBTQIA+ community by promoting the idea that they should hide their identity. Ultimately, the rise in anti-trans sentiment in Canada may not seem like it has any power to define human rights laws. However, it is important to recognize that its continued rise only holds harmful implications for LGBTQIA+ Canadians.
References
Bill C-27, An Act to Amend the Canadian Human Rights Act and the Criminal Code, 1st Session, 42nd Parliament, 2016.
Blackwell, T. (2022, September 7). Grade 1 teacher who said boys and girls no different in “gender fluidity” lesson cleared by rights tribunal. The National Post. https://nationalpost.com/news/canada/grade-1-teacher-who-said-boys-and-girls-no-different-in-gender-fluidity-lesson-cleared-by-rights-tribunal
Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11.
Cullen, C. (2023, September 12). Poilievre not saying whether he’ll support ban on medical interventions for trans minors | CBC News. CBC News. https://www.cbc.ca/news/politics/poilievre-conservative-party-transgender-1.6964618
Freeman, J. (2023, September 13). Teachers’ union slams Ford government for “harmful” comments on gender expression in schools. CTV News. https://toronto.ctvnews.ca/teachers-union-slams-ford-government-for-harmful-comments-on-gender-expression-in-schools-1.6559975
N.B v. Ottawa-Carleton District School Board, 2022, HRTO 1044 (CanLII). https://canlii.ca/t/jrnlk
Redfield, E., Conron, K. J., Tentindo, W., & Browning, E. (2023). Prohibiting Gender-Affirming Medical Care for Youth. Williams Institute UCLA. https://williamsinstitute.law.ucla.edu/publications/bans-trans-youth-health-care/
The Associated Press. (2022, April 21). “Don’t Say Gay” bill becomes law in Florida, banning sexual orientation instruction from K-. CBC News.https://www.cbc.ca/news/world/florida-don-t-say-gay-bill-desantis-1.6400087
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