When actress Laverne Cox of TV’s “Orange Is the New Black” became the first transgender person to make the cover of Time magazine, it represented a watershed moment for those who have often chosen obscurity over visibility — and for good reason.
Long feared and misunderstood by mainstream society, transgender and gender-nonconforming people are often targets of mockery, discrimination and violence, making them one of the most marginalized groups in the world.
But increasingly, transgender folk are choosing to step out from the shadows and voice their demands for acceptance, insisting the world has nothing to fear from them and that they’re just like everyone else.
Their campaign for human rights protection under the law may represent the final frontier in the fight against sex-based discrimination.
“What we’re seeing is a move towards centring and foregrounding of trans voices and experiences,” says Ryan Dyck of the LGBTQ advocacy organization Egale Canada.
“It can be very dangerous for a lot of trans people to come out, but for those who feel safe doing so or have the ability to do so, it’s really important.”
Brae Carnes, a 23-year-old from Victoria who identifies as a trans woman, became an activist over what she sees as the gutting of Bill C-279, which would add “gender identity” to both the Criminal Code and the Canadian Human Rights Act.
The bill passed in the Commons two years ago, but languished in the Senate until February, when the upper chamber introduced several amendments. The most controversial was championed by Conservative Sen. Donald Plett, which could in effect prohibit transgender people from entering any single-sex washroom, change room or abuse shelter under federal jurisdiction.
Dubbed the “Bathroom Bill,” the amended C-279 would stop anyone barred from such a facility due to gender identity from filing a human rights complaint for discrimination.
Plett argued the amendment would protect “vulnerable women” who had been victims of domestic violence from being retraumatized by the sight of a biological male and prevent male sexual predators dressed up as females from gaining access to women and girls.
“I was so angry that I thought if this is what this guy wants, I’m just going to give it to him and show him how stupid it is,” says Carnes, who began taking selfie photos in men’s washrooms and posting them on social media.
One shows her with a sign reading, “Plett put me here.” Another features a decidedly feminine Carnes applying lipstick in the mirror against a bank of urinals in the background.
“This is not just about girls in the men’s washroom,” Carnes says. “It’s about the fact that Donald Plett derailed Bill C-279, and in doing so he is robbing us of being protected (from hate crimes) under the Criminal Code.”
The bill has gone back to the Commons, but is unlikely to be debated before MPs’ summer break and it could die on the order paper if a fall election is called.
That isn’t to say there are no human rights protections for transgender Canadians.
In 2004, the Northwest Territories was the first jurisdiction in Canada to amend its human rights code to explicitly include gender identity, since followed by Ontario, Manitoba, Nova Scotia, P.E.I., Newfoundland and Labrador, and Saskatchewan. Protection under the other provinces’ and territories’ codes are implicit.
“Part of the reason why explicit protections are so important is because people don’t know protections exist when they’re buried in case law or in policies,” says trans woman Nicole Nussbaum, a legal aid lawyer in London, Ontario.
“But when they’re explicit in legislation, they’re included in human rights educational materials, in the tracking of complaints, so there’s a better idea of how many have experienced human rights issues,” she says. “In the case of hate crimes, it really makes it clear that prosecutors have to look at the motivation of crimes against trans people to see if there is an element of hate.”
“It also sends a message that this kind of discrimination is not OK.”
In 2012, Ontario amended its human rights code, making discrimination and harassment based on gender identity or gender expression illegal. Known as Toby’s Law, the amendment was introduced by MPP Cheri DiNovo in remembrance of trans woman Toby Dancer, a gifted but impoverished musician who died of a drug overdose in 2004 at age 51.
“It was a huge step forward,” says DiNovo, the NDP critic for LGBTQ issues. “What we’re seeing now is it’s working its way out to all of the institutions and ministries.”
That includes the Ministry of Corrections, which now mandates that transgender inmates be housed according to gender identity, not physical traits.
The impetus for the change was sparked in part by the case of Avery Edison, a visitor from England who identifies as female but was jailed in a men’s detention centre over a visa infraction. Edison has filed complaints with both the Ontario Human Rights Tribunal and the Canadian Human Rights Commission.
In another case, Boyd Kodak, whose documents legally identify him as male, launched a human rights complaint against Toronto police and the Vanier Correctional Centre for Women, where he was incarcerated after an arrest on charges that were later dropped.
Kodak reported feeling dehumanized after police and correctional officials questioned him about his genitalia, took away his penile prosthetic and forced him to wear women’s clothes.
Advocates say transgender people face many barriers, among them difficulty in obtaining documents like passports, health cards and driver’s licences with male/female identification that matches their chosen gender.
Dyck of Egale says that to be issued a passport reflecting one’s chosen gender, an applicant must have medically transitioned and have a confirmatory doctor’s note or present a gender-amended birth certificate. (Nova Scotia is poised to join B.C., Alberta, Manitoba, Ontario and Quebec in allowing amended birth certificates without reassignment surgery.)
“This is a really significant issue,” he says, explaining that federal regulations require airlines to refuse to board a passenger whose passport photo or male/female designator don’t align with the gender they present.
“How that policy is being implemented by airlines, I don’t know. But it certainly creates a lot of fear and the very real possibility that trans people could be prohibited from travelling simply because they’re trans.”
So what needs to be done for transgender people to gain greater acceptance within society?
“It sounds like a bit of a pat answer, but education, education, education,” stresses Dyck, whose organization provides training materials to school boards and employers. “We need to do more to dispel the myths and the prejudices that exist around what it means to be trans.”
“And that starts at a young age, at school, learning about the difference between sex and gender and learning to include trans people when we talk about diversity… And in our communities, our workplaces, we need to be purposefully including gender diversity.”
Seeing the effects of Toby’s Law in Ontario and similar gender-inclusive legislation in several other jurisdictions, DiNovo believes transgender people are on the cusp of a major change in how they are perceived and treated.
“It’s like dropping a big stone into a lake and watching the ripples roll out from there. No, they haven’t all reached the shore yet, but we’re getting there.”