This column is an opinion from Charlotte Dalwood, a juris physician scholar on the College of Calgary’s School of Regulation. For extra details about CBC’s Opinion part, please see the FAQ.
There’s an more and more public marketing campaign underway to strip transgender Canadians of their constitutional and human rights. The newly re-elected Liberal authorities must make countering it a precedence.
Constitution protects trans rights
Canada’s gender minorities at present profit from a wealth of authorized protections.
The Canadian Constitution of Rights and Freedoms ensures to “each particular person” equality “earlier than and below the legislation” and freedom from discrimination “primarily based on … intercourse.”
Each courts and human rights tribunals have lengthy acknowledged that anti-transgender discrimination is a type of sex-based discrimination as a result of it targets individuals who expertise discontinuity between the intercourse they had been assigned at delivery and the intercourse with which they determine. Because of this governments can’t act in a means that unfairly disadvantages transgender Canadians with out working afoul of the constitution’s equality provisions.
Federal and provincial human rights laws extends these protections to the personal sector. For instance, the Alberta Human Rights Act prohibits landlords within the province from refusing a potential tenant on the premise of that individual’s “gender, gender id, and gender expression.” And the Ontario Human Rights Code equally prohibits employers in provincially regulated industries like retail from focusing on staff for harassment due to their “gender id [or] gender expression.”
Misinformation marketing campaign
However these protections are below assault.
Throughout the nation, anti-transgender rights advocates are attempting to persuade Canadians that guaranteeing equality to gender minorities is just not solely unconstitutional, but it surely additionally discriminates towards and harms cisgender ladies — that’s, ladies who had been assigned feminine at delivery. And their misinformation marketing campaign, disguised as a protection of ladies’s “sex-based rights,” has change into particularly intense previously 12 months.
The nationwide group “Canadian Ladies’s Intercourse-Based mostly Rights” (caWsbar) is consultant of the arguments being made towards transgender-inclusive legal guidelines and insurance policies.
They falsely declare that the constitution’s equality provision covers cisgender however not transgender ladies as a result of it lists “intercourse” and never “gender” as a protected floor. They then argue, on this foundation, that the inclusion of “gender” in human rights laws is illegal; certainly that governments have an obligation, as an alternative, to protect and promote intercourse segregation.
Translating these assertions into motion, 4 anti-transgender rights teams staged protests in Edmonton and Calgary on Could 2 and June 13, respectively, towards efforts to uphold the rights of transgender ladies.
Beneath the management of teams like caWsbar and We the Females, protests have additionally occurred at prisons throughout the nation (most just lately on Sept. 18) towards Correctional Service Canada’s coverage of taking transgender inmates’ gender identities under consideration when deciding the place to accommodate them.
These teams are intentionally misreading the constitution in an effort to legitimize their legally baseless assault on human rights laws and the transgender those who laws protects.
Permitting this misinformation marketing campaign to proceed unchecked has two major dangers.
The primary is that members of the gender minorities below assault will change into much less prone to entry the authorized helps to which they’re entitled when their rights are violated, out of the mistaken worry that the justice system won’t be on their facet.
The second is that anti-transgender discrimination will improve in frequency and depth as a result of these against transgender rights will wrongly consider that such discrimination is in step with constitutional legislation.
Neither threat is tolerable if transgender individuals are to be assured of their full and equal place in Canadian society.
Time to interact reference process
Fortuitously, the federal authorities already has a option to restrict the potential harm of authorized misinformation campaigns.
The reference process permits the federal cupboard to acquire the Supreme Courtroom’s opinion on “essential questions of legislation or reality,” together with questions on the best way to interpret the constitution and whether or not explicit items of federal or provincial laws move constitutional muster. Parliament doesn’t should be consulted earlier than cupboard poses its inquiries to the court docket, a bonus in periods of minority rule.
Because of this the newly re-elected Liberal authorities might simply ask the Supreme Courtroom to weigh in on the 2 questions that anti-transgender rights advocates have raised, particularly: whether or not the constitution protects transgender Canadians’ rights to equality and freedom from discrimination, and whether or not related protections in human rights laws are constitutionally sound.
Given prior jurisprudence, there’s little doubt that, if the Supreme Courtroom took up these questions, its solutions to each could be a powerful “sure.”
This response would, technically talking, be merely advisory. Virtually talking, nonetheless, Supreme Courtroom reference selections are handled as binding by governments and decrease courts.
The authorized worth of getting such a ruling on the books would thus be important, not least as a result of it will beat back potential future makes an attempt to enshrine anti-transgender interpretations of the constitution into legislation.
However so, too, could be the symbolic worth of getting the nation’s highest court docket declare unequivocally that transgender individuals can rely on the justice system to ensure their place in Canadian society. It will ship a transparent message to anti-transgender rights advocates that, whereas they’re free to carry no matter views they like, their marketing campaign to weaponize constitutional legislation towards gender minorities has no place in Canada’s courts.
The newly re-elected Liberal authorities simply wants to present the Supreme Courtroom the chance to take action.
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