Understanding Bill C-16: Gender identity rights

Akshita Aggarwal | October 15th, 2021

The lived experiences of transgender persons and individuals belonging to sexual minority groups are often overlooked in public discourse when evaluating the significance of important legislation to protect certain vulnerable groups and recognize them as equal citizens (1). Individuals identifying as being gender-diverse face a disproportionate rate of incarceration, criminalization and underemployment in addition to limited access to services such as healthcare and education (2). Bill C-16 was a step in the right direction in the formal recognition of trans and gender non-binary individuals' rights on the political platform and in the legal system.

Bill C-16 was an act to amend the Canadian Human Rights Act (CHRA) and the Criminal Code (CC) introduced by Justin Trudeau’s Liberal government in 2016 and received royal assent on the 19th of June 2017 - putting into place federal protection for transgender persons across Canada (3). It passed in the House of Commons by 248–40 votes and in the Senate by 67–11 votes with three abstentions (4). With the passing of this legislation, the federal government has joined hands with the provinces and territories to take a stance to include and protect gender diversity within human rights codes (5).

The Bill sought to amend the CHRA by adding ‘gender identity or expression’ as a prohibited ground of discrimination, making it illegal to deny services, employment, and accommodation based on gender identity or expression (6). The bill amended the CC by adding ‘gender identity and expression’ to two sections of the code. First, Section 318 of the code regarding hate propaganda outlines that it is a criminal offence to promote genocide against members of an identifiable group. The identifiable group includes groups like (not exclusive list) race, sex, religion, and sexual orientation and after Bill C-16 passed, included ‘gender identity and expression’ as an identifiable group as well (7). Since Section 319, on public incitement of hatred, also defines identifiable groups, promoting hatred based on gender identity and expression has also been criminalized. Second, Section 718 of the CC, on sentencing provisions, was amended to include gender identity and expression as an aggravating factor in sentencing, allowing for increased sentencing for crimes motivated by bias, prejudice or hate based on gender identity or expression (8).

The Bill was introduced to address the needs of the transgender community, specifically, the discrimination, exclusion and hostility faced, including physical violence, in their daily lives. There have been arguments that this bill was redundant, however from a criminal context, this bill fills in a gap in the law by supplying greater clarity, and certainty in the criminal context, explicitly protecting groups on the grounds of gender identity and expression (9). Prior to this amendment, there was no guarantee that offences against this group would constitute as being criminal as they do not fall under the previously protected groups such as sex or sexual orientation.

Further arguments against the Bill have been made, the most famous being from a professor of Psychology at the University of Toronto, Jordan Peterson, who criticized the bill for compelling speech - dictating what individuals can say rather than restricting hate speech - and would lead to a slippery slope where the law would classify the failure to use preferred pronouns of transgender people as hate speech (10). These fears and claims have been found to be baseless as brought forth by Brenda Cossman, a law professor at the University of Toronto who argues, that “The misuse of gender pronouns, without more, cannot rise to the level of a crime,” for they do not meet the threshold of advocating genocide, inciting hatred, hate speech or hate crimes” (11).

More information about the misconceptions regarding Bill C-16 can be found here.