The path forward for legislation to explicitly bar discrimination over gender identity and expression finally seems clear, with the government warning it will do whatever it takes to get it through the Senate before summer, and one of the bill’s chief critics conceding it will likely pass.
Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, was examined for the first time by the Senate Legal and Constitutional Affairs Committee on May 4, more than five months after it arrived in the Senate. A kerfuffle over whether the opposition Conservatives were stalling the bill seems to have been put to rest, and the bill’s sponsor, who is also the government’s whip in the chamber, says it has widespread support.
C-16 would change the aforementioned laws to add gender identity and gender expression as prohibited grounds of discrimination. Several attempts to pass similar legislation through private members’ bills have failed in years past, including, most recently, NDP MP Randall Garrison’s (Esquimalt-Saanich-Sooke, B.C.) C-279, which died in the Senate in the summer of 2015 after the election was called.
This time, the government in the Senate will make sure the bill is dealt with quickly, and will seek to use time allocation for the first time in the Senate this session to force a vote if necessary, says Sen. Grant Mitchell (Alberta), the bill’s sponsor and the government’s whip in the chamber.
“This is a priority on the part of government. It’s a priority on the part of the government’s representative team in the Senate, and it’s a priority for me, and most of the colleagues who are supporting that bill,” he said.
“It’s a hill I’m prepared to die on. This has to be passed before the summer break,” he said, later adding that he did not expect to have to use time allocation in order to pass C-16 on time.
“I don’t think it’s going to come to that. I think the momentum is clear that there’s a lot of support throughout the chamber in all sides, in all corners.”
The government in the Senate has not used time allocation since Sen. Peter Harder (Ottawa, Ont.) was appointed to lead it in 2015. Sen. Harder, however, issued a scathing policy paper at the end of March that accused the Conservative Senate caucus of “time-wasting” and obstruction of the government’s legislative agenda, and pre-emptively justified the use of time allocation as a means of limiting such delays.
Given the government’s lack of bodies in the Senate, though, Sen. Harder’s paper noted that he and the two other government representatives “must make their case through moral suasion of a majority of Senators.” Seeking to impose time allocation doesn’t guarantee it will actually be allowed.
Several Conservative Senators have expressed opposition to the bill since it arrived in the Upper Chamber in November after winning support from the Liberal and NDP caucuses in the House, and a mix of support and opposition among Conservative MPs.
Conservative Sen. Don Plett (Landmark, Man.), a critic of the bill, has said he was concerned that it would outlaw discrimination based on gender identity without defining that term, arguing in the Senate that the term ‘expression’ “encompasses no group” in particular. Conservative Sen. Betty Unger (Alberta) also criticized the bill in the Senate, arguing it would essentially force people to call transgendered persons by their preferred pronoun.
Justice Minister Jody Wilson-Raybould (Vancouver Granville, B.C.) defended C-16 at the Senate Legal Affairs Committee last week, arguing that the bill “will not create any specific rules about the use of gendered pronouns,” and that provincial human rights laws throughout Canada also didn’t define “gender identity” or other grounds of discrimination.
Sen. Plett told The Hill Times he had not yet decided whether to put forward amendments to C-16, or whether any amendments could easily address his concerns with the bill.
“But the fact of the matter is, it’s a government bill, and maybe there’s an amendment that can be done, but I’m not hopeful that it can be defeated,” he said.
The Senate currently has 39 Conservatives, 35 in the Independent Senators Group, 18 Liberals (though they are separate from the House Liberal caucus and government), and seven other Independents.
Sen. Plett and Sen. Unger weren’t the only Conservatives to speak against the bill. Sen. Tobias Enverga (Ontario) and Sen. Lynne Beyak (Ontario) also outlined their opposition in the Senate during debate at second reading. Three Liberals, five Independents, and two government Senators spoke in favour of the bill at the second reading debate.
Sen. Mitchell said he expected to get support from “many” Conservative Senators, and was not aware of any Independent or Liberal Senators who opposed C-16. Sen. Ratna Omidvar (Ontario), the floor manager for the Independent Senators Group, and the office of Sen. Percy Downe (Charlottetown, P.E.I.), the Senate Liberal whip, told The Hill Times that, as usual, the vote on C-16 wouldn’t be whipped, and their caucus members would be free to vote as they chose.
C-16 arrived at the committee stage with plenty of political baggage. That began with the Senate’s failure to pass its cousin, C-279, in the last Parliament. An amendment to that bill by Sen. Plett exempted many public spaces from the bill’s provisions.
Debate on C-16 was adjourned eight times while the bill was at second reading, on all but one occasion by Conservatives—most often by Deputy Leader Sen. Yonah Martin (British Columbia).
That led Sen. Mitchell to accuse the Conservatives and Sen. Plett specifically of intentionally stalling the debate, telling the CBC in February that, “If you’re opposed to the bill you have a responsibility to speak.”
Sen. Plett rebuked that assertion in the Senate and again to The Hill Times last week, calling it “an entirely false accusation,” and noting that C-16 had been debated every sitting week in the Senate between the Christmas break and the time it was referred to committee on March 2.
Sen. Plett “certainly won’t be delaying anything” as the bill moves forward through the Senate either, said Jennifer Harnden, Sen. Plett’s director of parliamentary affairs.
Sen. Yonah Martin’s office did not respond when contacted for comment.