Canada: Trans-Gender Rights To Be Added To Canada's Human Rights Code And Suggestions For The CBSA

Last Updated: June 29 2017
Article by Cyndee Todgham Cherniak

On June 15, 2017, Canada's Senate passed Bill C-16 "An Act to Amend the Canadian Human Rights Act and the Criminal Code" at third reading.  Canada's Senate has a majority of Conservative Senators. On November 18, 2016, Bill C-16 passed third reading in Canada's House of Commons.  The Liberals are the majority in the House of Commons.  The last step in Canada's legislative process is Royal Assent – which should occur very soon.  There is no reason for delay.  Pride month is the right time to memorialize trans-gender and non-binary gender rights into Canada's human rights laws. Bill C-16 adds  protection of "gender identity and expression" to the Canadian Human Rights Act and Canada's Criminal Code.

Section 2 of Bill C-16 amends the "purpose" section of the Canadian Human Rights Act.  The purposes of the bill are set out as follows:

"The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered."

Section 3 of Bill C-16 amends the Canadian Human Rights Act to prohibit discrimination on the basis of identity or expression:

"For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered."

Section 4 of Bill C-16 adds to the hate crime provisions of the Criminal Code crimes motivated by prejudice or hate based on "gender identity or expression", or on any other similar factor.

I cannot add much enlightened insight on the legal elements of Bill C-16 because I have never represented a person who has experienced trans-gender discrimination in a way that warranted legal action – and I am not the type of lawyer who would be asked to do this type of legal work. However, as a customs lawyer, I ask myself whether the Canada Border Services Agency's ("CBSA") policies would meet the new human rights requirements.  I want to help start this important dialogue.

I have looked at the CBSA web-site www.cbsa.gc.ca and, surprisingly, I could not locate any LGBT-Q policy on body searches on trans-gender or transitioning or inter-sex individuals at the Canadian border. It is hard to find any information of the CBSA web-site directed at trans-gender travelers.  I am familair with the CBSA web-site.  If I cannot find something, others will not be able to find the policies (or it is not there for any of us to find).

I did find a 2011 McLeans article entitled "Trans-border crossings" and could not believe what I was reading.  I could not find the protocol referred to in the article.  According to the author of that article, according to the protocol:

  1. A trans-gender person may ask to be searched by a male officer;
  2. A trans-gender person may ask to be searched by a female officer; or
  3. A trans-gender person may ask for a "split search"

According to the article, individuals who are "split searched", would experience the following:

"Two groups of officers perform the search. The person being examined strips the clothes from their upper body, and a team of officers from one sex perform the search. Then, the person puts their top back on and strips off the bottom half of their clothing before a second group of officers of the other sex scrutinizes down there. The whole process is observed by at least one non-participating officer to ensure everything is on the level. For those counting, that's at least five officers for every split search."

My response is that cannot be the protocol – really? (actually, I swore a bit).  There is another 2011 article on a trans-gender web-site referring to the protocol that does not provide a link to any protocol.  My first reaction is that the CBSA ties itself into knots with this unavailable protocol.  I can see the desire to be respectful and create an environment in which the trans-gender person has a degree of control over the body examination procedures.  I also think that what is well-intentioned converts into longer wait times (to find the CBSA officers to conduct the search and less privacy (by having 5 sets of hands or eyes involved). What might have been deveoped with the bset of intentions has unintended negative consequences.

If the CBSA does not revisit its policies/protocols for trans-gender individuals and consider the necessary adjustments to comply with Bill C-16, human rights tribunals will review the CBSA policies.  Canadian courts will also weigh in.

There is a way to prevent the unnecessary bad publicity,  The CBSA can take the opportunity to become more transparenct to an increasing trans-gender community. I would like to make the following recommendations to the CBSA (and Minister Goodale), who will have to implement transparent and published policies or protocols that are consistent with the spirit of Bill C-16:

  1. Minister Goodall and the CBSA should consider 5 things – dignity, respect, wait times, frequency and community outreach;
  2. The CBSA should post a page on the CBSA web-site about trans-gender rights at the border and what information will be useful for trans-gender travelers, who are welcome to Canada.  Publicize that Canada is a country that respcts trans-gender individuals by letting people know about the web-site page;
  3. The CBSA should develop a balanced policy on body searches/examinations of trans-gender and transitioning individuals (everyone can be examined/searched at the border for contraband and prohibited goods);
  4. When discussing the CBSA's trans-gender policy, it should be clear that the trans-gender individual is in charge of deciding how the search should be undertaken.  The trans-gender person is the only person who can decide if he/she wants a male CBSA officer to conduct the search, a female officer to conduct the search or a split search with officers of specified genders.  The traveler cannot choose to not be searched as all travelers may be searched – the trans-gender individual does have power to maintain his/her dignity;
  5. Recognize that a trans-gender or transitioning individual may be intimidated by overly masculine or assertive CBSA officers and may need to speak with a CBSA officer who is more understanding or sensitive to trans-gender issues;
  6. Recognize that a body search of a trans-gender person may be a sensitive matter for both the traveler and the CBSA officer involved and consider whether additional considerations are required before such searches are conducted and whether the searches can be conducted by a more limited number of CBSA officers who have had special training;
  7. Recognize that split searches involve greater wait times for the trans-gender individual.  More officers must be gathered to perform the search.  The CBSA officers should recognize that any human being would be anxious about unknown hands touching the person.  The wait times and number of CBSA offices involved will increase anxiety levels;
  8. Consider what training should be required so that all CBSA officers respond appropriately to trans-gender travelers;
  9. Recognize that the first time a trans-gender person updates his/her NEXUS membership information after making gender identification changes (that is, after changing gender identity) may be stressful to the individual and complicated.  It would be helpful to have guidance on the CBSA web-site as to what information will be required by the CBSA to amend an individuals' gender for customs purposes.  There should be guidelines as to what documents are needed and will be accepted.  This is not something that should depend on the officer who answers the call or who is at the NEXUS desk;
  10. The CBSA should maintain statistics on searches of transgender individuals and ask whether CBSA profiling causes more trans-gender individuals to be searched.  The statistics should be published on a n annual basis as there needs to be accountability; and
  11. The CBSA should engage in community out-reach and speak directly with the LGBT-Q community about mutual issues.  What the CBSA does not now, it can learn.

We welcome other ideas about what the CBSA can do to make the border-crossing experience better and fair and humane for trans-gender and transitioning individuals.  It is time for this dialogue to occur.  I acknowledge that my comments do not come from personal experiences with clients and I am guessing as to what would be useful.  However, my voice can start the dialogue.  Bill C-16 is the opportunity (because it is 2017 and will be the law).

I am a human being.  I have friends who are trans-gender.  I share this legal development as I share their successes (maybe I share my friends' successes less publicly).  When you know someone who is trans-gender, you do not walk in their shoes – but, you walk with them and you learn.  We all learn from those around us.  I have some (very small) insights and am continuing to learn.  I have a long way to go to understand the forms of discrimination trans-gender individuals experience.  I am not a subject-matter expert on being a good friend either and will make mistakes that my friends will forgive.

I know the hard part is ahead of Canadians as we must learn from mistakes. Ensuring this new law has the desired effect is the hard part. Admitting to mistakes is the hard part.  Getting the right balance is the hard part. Forgiveness can be hard too.  But, the fact that it will be hard does not mean that we shall not move forward.  The fact that it is hard is the reason to more forward.  Important goals must be reached.

This article first published on www.canada-usblog.com.  Reprinted with permission.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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