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The Self-Determination We Deserve

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Issue: 75 Section: Gender Geography: Canada Canada, Québec Topics: charter, constitution, gender, identity, policy

January 13, 2011

The Self-Determination We Deserve

Landmark charter challenge launched as Bill C-389 raises debate

by Jesse Grass, Nat Gray

"Charles McVety, the president of Canada Family Action Coalition, Canada’s largest anti-gay lobby group, [charges] that [Bill C-389] would allow people like convicted killer Russell Willams, who was photographed wearing women’s lingerie, to enter gender-restricted spaces." —Mark from SLAP. Photo: Mark From Slap/slapupsidethehead.com

MONTREAL—“Remember Stonewall?” read a banner dropped by two young people before they were arrested at this year's Trans-* Day of Remembrance in Ottawa. They were asking the community to remember a landmark riot against state repression and police brutality, led by Sylvia Rivera, a trans- woman of colour. The event is commonly known as “the hairpin drop heard around the world,” and remembered as having catalyzed North American trans- organizing.

In 1969, the year of the Stonewall Uprising in New York, it was hard to believe that a politician would ever seek to better the lives of trans- people; however, NDP MP Bill Siksay of Burnaby-Douglas hopes to do just that. Bill C-389, introduced by Siksay, would add gender identity and gender expression to the list of protected classes in the hate crimes section of the Criminal Code of Canada, and also to the Canada Human Rights Act, which protects against discrimination in housing and employment. On February 9, 2011, the bill passed the House of Commons and and now awaits Senate approval.

When asked about Bill C-389, Matt McLauchlin, Co-chair of the NDP LGBT Committee said, “A clear law banning discrimination based on gender identity or expression would make it clear...that discrimination on these specific grounds is not to be tolerated. This would help not only with litigation but also with public education and similar initiatives to stop transphobia.”

Conservative MP LaVar Payne, of Medicine Hat, Alberta, wrote in a letter to a concerned constituent that broadening identifiable groups in the Criminal Code “will further infringe on Canadians’ right to free speech.” Other right-wing opponents have deemed it “The Bathroom Bill,” suggesting that it would facilitate sexual assault in public washrooms. This attitude demonstrates the current lack of popular education surrounding gender, as well as the portrayal of trans- people as deceptive and suspicious.

However, not all critics of the bill are right-wing. Some trans- organizers argue that C-389 is limited in its analysis of systemic barriers facing the community, while others suggest that it may be more harmful than helpful.

“In a culture that penalizes transgression, legal recognition of gender identity and expression can be important in order to access benefits including housing, legal rights, healthcare and some sense of safety,” says Mattilda Bernstein Sycamore, prominent queer anti-war activist and editor of the anthology That’s Revolting!: Queer Strategies for Resisting Assimilation. “But I don’t think we should be lulled into thinking that legal changes will give us the self-determination that we all deserve.”

“I think that an interesting question to ask might be, ‘Whose lives will it impact?’” says Jackson Ezra of l'Action Sante Travesti(e)s et Transsexuel(le)s du Quebec. ASTTeQ is a group that works to encourage the health and well-being of trans- people through access to resources and support.

“While I think that this bill opens up some really interesting discussions and debates, I [question] the impact that it [would] have on the lives of trans- sex workers, migrant and non-status people, poor people, people who use drugs, people who are homeless and turned away from shelters, people who struggle every day just to get by [and] access basic services, and [those] whose lives and realities are criminalized,” he said.

In 2009, a similar bill—named the Gender Employment Non-Discrimination Act (GENDA)—was proposed and passed in the New York State Assembly, and awaits Senate approval. While garnering the support of many LGBT groups, a coalition of five organizations (The Sylvia Rivera Law Project, FIERCE, Queers for Economic Justice, The Peter Cicchino Youth Project and The Audre Lorde Project) wrote a letter to the GENDA coalition voicing their non-support of the bill, arguing that “[r]ather than serving as protection for oppressed people, the hate crimes portion of this law may expose our communities to more danger—from prejudiced institutions far more powerful and pervasive than individual bigots."

The letter continues:

Hate crime laws are an easy way for the government to act like it is on our communities’ side while continuing to discriminate against us. Institutions can claim 'anti-oppression' legitimacy and win points with communities affected by prejudice, while simultaneously using 'sentencing enhancement' to justify building more prisons to lock us up in. Hate crime laws foreground a single accused individual as the 'cause' of racism, homophobia, transphobia, misogyny, or any number of other oppressive prejudices. They encourage us to lay blame and focus our vengeful hostility on one person instead of paying attention to institutional prejudice that fuels police violence, encourages bureaucratic systems to ignore trans- people’s needs or actively discriminate against us, and denies our communities health care, identification, and so much more.

Seeking to address barriers regarding sex designation and identity for trans- citizens, a challenge has recently been launched against the Directeur de l'Etat Civil du Quebec (DECQ) by Elias Dean. “If this case makes it to court,” Dean told The Dominion, “it will be the first time in this province that the bodily autonomy of trans- people is addressed in a court of law.”

Dean explained, “I am a transsexual man whose demand for a change of legal sex designation was recently turned down. It was denied to me because even though I've received a GID diagnosis [trans- people are considered to experience Gender Identity Disorder, a diagnosis within the Diagnostic and Statistical Manual of Mental Disorders] and have undergone chest reconstruction and hormone therapy, I have not had a hysterectomy. Sterilization is mandatory to access a legal change of sex in Quebec. In the case of trans- women, vaginoplasty is required, and for trans- men, it's a hysterectomy.”

Requirements for changing one's sex marker—that is, the "M" or "F" designated by the state on one's identification—vary from province to province. While Sex Reassignment Surgery (SRS) is not needed for one to change one's legal name, it is consistently required to change the sex marker on provincial identification. The same set of laws are applicable nation-wide, but are inconsistently interpreted provincially.

In June 2010, trans- people and their allies rallied at the the office of the DECQ demanding access to name changes without excessive delay, sex marker changes without forced sterilization, sex marker changes for those without citizenship status (after living within the province for one year), the removal of sex indication on birth certificates, and clear guidelines available online regarding name and sex marker changes. PolitiQ: Queers Solidaires, a queer and trans- collective working towards creating spaces for the open discussion of sexuality and gender, organized the rally, which was endorsed by Stella, the 2110 Centre for Gender Advocacy, l'Association des Transsexuels et Transsexuelles du Quebec (ATQ), Project 10 and ASTTeQ.

Swan Kennedy, a speaker at the rally, expressed the need for identification congruent with one's chosen identity, saying, “We need the DECQ to recognize that our livelihoods and lives are put at risk when we have identification that does not reflect our gender...The DECQ requires that an applicant have a "serious reason" to change their name on identity documents. Surely, discrimination against us [is a] serious reason.”

Dean expands on this, saying, “Having mismatched paperwork jeopardizes our chances of obtaining jobs, housing and health care, [often pushing] us into committing survival crimes, which often results in jail time, with trans- women getting incarcerated in male prisons where they face serious violence, et cetera.”

Whether or not one supports Bill C-389, the right to self-identify is central to ongoing trans- struggles. Trans- movements have been largely grassroots, mobilizing outside of government institutions. With Canada's history of institutional repression of trans- organizing, many question whether or not a representative or a piece of legislation could ever truly address the needs of such a diverse community.

“There are so many ways that trans-, genderqueer, gender defiant and gender nonconforming people continuously challenge the violence of state control of our lives, and [we] need to continue to build our own cultures, values, norms, institutions, and families while challenging all the violence around us," says Sycamore. "[This is] not just a state that asks us to submit to the prying and spying of medical professionals in order to grant us a basic need, but the state that continues all other forms of oppression as well, from oil drilling on Indigenous lands to a continuous crackdown on free speech and freedom of assembly."

“Not all trans- people experience the same kinds of violence, and not all trans- people’s needs are the same. As [allies], we need to understand trans- rights as the fight against police brutality, racist immigration policies, and the struggles against the criminalization of sex work, homelessness and drug use,” says Ezra.

“Even though my being trans- is sometimes a source of grief for me, I am thankful to be part of a resilient community that has found its voice after having our lives narrated through medical discourse for so long—[a community] that is actively organizing and fighting back," adds Dean. "It is thanks to those who have walked this path before me that I can go ahead with this challenge.”

*In this article we use the term "trans-" as an umbrella term to be inclusive of all transsexual, transgendered, gender-variant, genderqueer, and gender nonconforming individuals. While it is not our intention to conflate these identities, we seek to be inclusive.

Jesse Grass is a genderqueer, working-class fuck-up. Nat Gray is a poet, a dumpster skid, and an intern with The Dominion.

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Thanks so much for this

Thanks so much for this coverage. I wanted to point out that, as federal legislation, C-389 would unfortunately not have a direct impact on the areas of provincial jurisdiction that Elias Dean and others mention. It's crucial that all provinces and territories enact their own explicit non-discrimination policies. I was proud to formally endorse PolitiQ and its allies' demands at the June 2010 rally.

I also want to make clear that, although C389 came out of a consultation process with trans communities across the country, it cannot be a panacea for discrimination that trans people face. Hopefully it will be a first legislative step added to and bolstering the work that trans activists have been doing for years, towards the vast social change needed to eliminate transphobia.

Thanks, Matt. Update: Bill

Thanks, Matt.

Update: Bill C-389 passed the House of Commons on February 9, 2011 and is on to the Senate.

White people, interviewing

White people, interviewing white people, quoting white people. Yawn.

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