Two Reasons Why Bill C-16 is Not Perfect and Two Reason Why it Must Pass

In the past few months I have publicly questioned the value of Bill C-16. As a critical trans legal scholar I know it is not the solution for all our problems and that it might even create new problems. Yet, as the Bill is facing a hostile Senate, fueled by the winds of hate from our southern neighbor, I find it crucial to get off the ideological-theoretical high horse. Down here on the ground we actually have much to lose. In what follows I present my two main issues with the bill and the two major reasons why Bill C-16 must pass.

1. Bill C-16 amends the Criminal Code, adding Gender Identity and Expression to the identifiable group clauses related to hate crimes, making it federally illegal to discriminate against gender variance and making the punishment for hate crimes against gender variance more severe. This is very problematic from a critical trans perspective. Lack of access to resources and opportunities in gender variant communities, alongside the profiling of gender variant individuals (especially racialized trans women), leads to the fact that gender variant communities are disproportionately represented in prisons. As prisons are sex-segregated spaces, and even after a recent attempt for reform, gender variant incarcerated people often find themselves in unsafe or inhuman conditions. In simple words, the criminal justice system is a problem for gender variant communities. So why should we support a bill that gives further power to that system?
2. Bill C-16 amends the Canadian Human Rights Act, adding gender identity and expression to the list of prohibited grounds for discrimination. However, as the black liberation and feminist movements have taught us, anti-discrimination laws have very limited affect. Formal equality and anti-discrimination laws do not deal with structural inequalities, and they can make it seem as if discrimination is the result of some ‘rotten apples’ and not a systemic issue. They can also create an illusion that people are equal (‘the law says so!’) when in reality, the disparities keep growing.

Yet, as much as I am critical of Bill C-16 I also think, that at this point, we cannot afford losing the battle over bill C-16 because:

1. Bill C-16 has found itself in the heart of public discussion because we are at a watershed moment in the battle over gender self-determination. Bill C-16 already has a declarative effect; it is a statement by the Canadian Government that trans and gender variant people should enjoy full access to resources and opportunities. The passing of Bill C-16 will send a message that transphobia and cis-superiority are unacceptable. Just imagine, for example, what this would mean for the young gender independent warriors living in remote communities, for their families and their communities, to know that they are seen and valued.
2. In the age of Trumpism we cannot afford to have perfect politics. Losing Bill C-16 will legitimize the haters. It will send a dangerous chilling-effect to gender variant communities. These days the stakes are so high; on the one hand, the battle for self-determination is gaining tremendous momentum, while on the other hand, supremacist and authoritarian forces are becoming mainstream. Especially in these scary times, we must be able to reckon with the reality that progress is a question of negotiations with different forces – our radical voice must be heard and practical solution must be obtained.

Bill C-16 must past, so we can go back to our struggle to dismantle the gendered (and other) mechanisms of exclusion, subjection and domination.

Ido is a SJD candidate in the Sexual Diversity Studies collaborative specialization and the Faculty of Law. He is a Trudeau Scholar whose work looks at the experiences of trans communities in law.

You can find more information on how to encourage the Senate to support Bill C-16 here!