Trans Advocacy in Federal Election 2008

September 27, 2008

The federal election in Canada is the time to advocate for our beliefs, reach out to those with whom we find common cause and appeal to the larger circle of those whose good will–though not personal interest, other than a commitment to human rights–who can be allies. These can be called advocacy commitments.

For transsexual and transgender people this has always been a struggle–a really tough slog.

There are a number of reasons for this.

First, our numbers. Though there are as yet no published figures–and we might actually be larger in numbers than even we suspect–we are generally considered so small, certainly fewer than gay and lesbian people, for example, that some have said our human rights can be relegated far down any priority list, definitely lower than the human rights of gay and lesbian people in other countries.

This has certainly contributed in the recent and not quite so recent past to disappointment in individuals and organizations we have/might have looked to and often worked with because we believed there were common goals and advocacy commitments.

As this election gets underway, the Rainbow Health Network (RHN), based in Toronto through its ‘subsidiary,’ the Trans Health Lobby Group/Trans Human Rights Campaign–lead by Susan Gapka–has proposed a national, mainly Internet campaign, for Election, 2008.

It has proposed the national focus be the addition of gender identity to the Canadian Human Rights Act. It is silent on the Criminal Code.

There is little legislative experience in Canada with transsexual and transgender people. Even in the United States, where there is more, gender identity and gender expression are sometimes defined as sexual orientation.

They are not.

When Barney Frank excised gender identity and gender expression from the Employment Non-Descrimination Act–more familiar as ENDA–leaving sexual orientation, he quite clearly understood they are not.

But if it works, I suppose, it is a good thing. Though I remain concerned such inaccuracy sets up problems for the future. In the present it continues the sometimes deliberate confusion that transgender and transsexual people are, at base, gay and lesbian people–and share identical interests.

This, of course, is inaccurate.

However, differing interests do not necessarily preclude coalition and common cause; this is, nevertheless, a difficult task when the lives and needs of some are invisible and, historically, have not been given equal weight in “coalition” advocacy.

I am also concerned with the RHN’s proposal to define gender identity to include gender expression, though not to explicitly state gender expression.

Gender identity has a relatively long tradition, in medicine/psychiatry, of referring to transsexual people. That is, those of us whose identification with the “opposite” sex is so profound we seek hormones and surgery to permanently ‘transition’ from one to the other.

We may not like this body of knowledge. We may challenge it and those who profess it–but the courts are not us; they will most likely defer to “experts” in medicine/psychiatry.

Often, but certainly not always, we seek to express our confirmed sex in traditional, often derogatively referred to as stereotypical or heteronormative fashion.

I do.

There are many who do not.

There are others, usually termed as transgender, who do not identify as profoundly with the “opposite” sex as, say, I do, who do not transition as I have, may not even take hormones or seek surgery.

Transgender people do not seek to live fulltime in the “other” sex–in this context ‘gender’ might be more appropriate.

Though there are many in the United States and Canada who use ‘transgender’ as a single, umbrella term for transsexual and transgender people, it promotes another confusion, though a curious one.

It seems to suggest that all “trans” people do not seek a permanent transition. And yet, the greater knowledge, particularly medical/psychiatric, is not of those who do NOT transition, but is of those who DO–transsexual people.

The advocacy of Egale Canada, of ‘mainstream’ trans advocates in the United States and the only legislation drafted for the Parliament of Canada is for BOTH gender identity and gender expression.

The policy of the New Democratic Party of Canada, adopted in November, 2007, is to include both gender identity and gender expression in the Canadian Human Rights Act. Toby’s Law was introduced into the Ontario Legislature in March, 2007, so I suppose this explains the discrepancy.

However, the Trinity-Spadina riding association in Toronto was one of the two that introduced the resolution at the NDP convention in Winnipeg; were there no people who understood what was coming who were part of the process of drafting Toby’s Law? There is also the question of whether the national policy of the NDP binds the Ontario section, even if the policy was adopted after the Toby’s Law was introduced.

Gapka has pointed out the intention to amend Toby’s Law at committee stage to include gender expression. Why not start out, in this federal campaign, with gender expression an explicit goal? As it already is in Bill Siksay’s private member’s bills.

Now a little bit of history: Before Bill Siksay introduced his private member’s bills into the Commons, he held community consultations in Ottawa, Toronto, Vancouver and online. It was the Toronto consultation whose consensus was NOT to include gender expression; the others’ were to INCLUDE it–something about not wanting to confuse the issue or the difficulty of advocating for transgender people.

This was precisely the thinking of Barney Frank when he excised gender identity and gender expression from ENDA: to have transgender and transsexual people included would make it impossible to adopt protections for gay and lesbian people.

And this was precisely the thinking of Svend Robinson when he adamantly refused to include gender identity and gender expression in his private member’s bill, C-250, which amended the Criminal Code sections on Hate to include sexual orientation in 2002. The proposed advocacy is silent on the Criminal Code.

After the fact, both gay men promised to work to protect trans people in the future.

Gapka has said defining gender identity to be inclusive of gender expression will satisfy these concerns. Yet, we really do not know how the courts will interpret these terms, though we can point to a tradition where gender identity refers to transsexual people.

For myself, I expect always to be included, no matter how the legislation is framed. This is not my present concern.

I have always argued, and continue to advocate, that we cannot recreate in our campaigns the same exclusion we have been subject to.

I do not believe this is right.

More than this, I do not believe it is practical politics.

Although there are yet no hard numbers for transsexual and/or transgender people, in practice we all remain in a minority.

In terms of practical politics it is necessary for us to focus on making as large coalitions as possible to win our case. Just because some gay and lesbian people and their organizations have disappointed in this regard, I remain commited to this practicality.

I am told the transsexual population in Toronto is very large and that gatherings can easily number in the hundreds. In Ottawa it is quite different and I have had the frequent opportunity, necessity actually, of successfully working with transgender people.

Though this term–as many I have used–may be rejected by some, the expression of gender variant identities I believe must also be explicitly protected; this must also be recognized as a fundamental human right.

This population is potentially far greater than the transsexual population. It includes gay and lesbian people who do not present stereotypically, straight cissexual people and many transsexual people also.

And our advocacy based on the appeal to formal human rights is far stronger when we include those whose marginalization may even be greater than our own–certainly their silence indicates this.

For myself, I cannot sustain the contradiction of advocating for the same convenient exclusion I have long endured.

Open Letter to Rainbow Health Ontario

September 21, 2008

I have received your email informing there is nothing at Rainbow Health Ontario (RHO) for me at this time. Of all the employers I have contacted in the past year, you are the only one who has responded.

Thank you for this.

I received it the same day Susan Gapka, of Trans Health Lobby Group/Trans Human Rights Campaign, posted her email–subject line: Canadian Human Rights Act Amendment to Include ‘Gender Identity’–to the Rainbow Health Network (RHN), which has described itself as a founding partner to RHO. This gives the perk of having membership in RHN required for the Community Outreach Team position for the Toronto Center Local Health Integration Network.

Gapka’s post reminded me of what unnerves about the backrounder you published about RHO and the Community Outreach Team and its purpose.

On page 3, under Information on Rainbow Health Ontario, subsection Why is this resource needed? you state:

Despite significant improvement in human rights of LGBT people in Canada there are deep gaps and inequities in services and in the health status of LGBT people. Many health care providers are uncomfortable when caring for LGBT people and uninformed about the specific health care issues of this community.

LGBT people are rarely included in health promotion campaigns other than those relating to HIV/AIDS. Neither they, nor their health care providers, have accurate knowledge about their health care risks.

I believe it is difficult to make the case that LGBT people are one community, or that there is one set of specific issues for this ‘community.’ Bitter experience has taught that issues of transgender and transsexual people are often only of interest when they are the issues of gay and lesbian people and that those issues specific to our lives–surgery being only one obvious one–will not be of ‘common concern.’

In Ottawa, the only health promotion campaigns seen–in fact an important movement in recent years–is in connection with gay men and HIV/AIDS. While the trans men’s book raised some controversy, the actual work on the ground in Ottawa has little inclusion of trans people; it is unclear what campaigns have ever included trans women–what there is has no comparison to long established traditions for gay and lesbian people.

That there has been significant human rights improvement for gay and lesbian people cannot be questioned. For transgender and transsexual people there remain deep gaps and inequities and it is my concern that unless this sharply divergent status is explicitly acknowledged nothing will change.

History is quite clear.

In 1998, the Canadian Human Rights Act was amended to include sexual orientation. The was about the same time, after a series of Supreme Court decisions on gay issues–including Vriend v. Alberta–contributed to the creation of the doctrine of analogous grounds; this allowed the Supreme Court to take judicial notice of sexual orientation as a ground analogous to those in Section 15 of the Charter of Rights and Freedoms.

During this period, provincial and territorial human rights acts, either because of direct action by legislatures, or indirectly through the effect of the “analogous grounds” decisions, were amended to include sexual orientation.

In 2002, though not specifically human rights, the Criminal Code sections on Encitement to Hatred, Encitement to Genocide and the Sentencing Provisions were amended to include sexual orientation with the passage of Svend Robinson’s private member’s bill, C-250. This was accomplished with rare all party consent.

In 2005, the Civil Marriage Bill was passed, consolidating legal decisions affecting most of the territory of Canada, to formally recognize the relationships of gay and lesbian people–finishing the work of bringing gay and lesbian people from the margins to the mainstream of society, as we argued at Canadians for Equal Marriage (CEM).

On the evening of June 28, 2005–after the Third Reading vote in the House of Commons, Alex Munter, National Coordinator of CEM declared:

there are no second-class Canadians, lesbian, gay, bi and trans people are full members of the community, without caveat or exceptions. We will long remember this proud day.

In December, 2006, after Stephen Harper’s attempt to re-open the debate failed, Lorrie Arron, Munter’s successor as National Coordinator of CEM stated:

As we move beyond law reform, we face the challenge of changing hearts and minds. . .

During this period other, less publicized administrative, regulatory and collective bargaining changes were established for sexual orientation.

Although this period has not seen inaction on the gender identity/gender expression front, results have been disappointing. As a result we cannot say, along with Munter, that transgender and transsexual people “are full members of the community, without caveat or exceptions.”

In 1998, the British Columbia Legislature voted to amend the B.C. Human Rights Code to include gender identity; the government of the day, however, did not proclaim this law. Though Cheri di Novi’s bill has recently been introduced into the Ontario Legislature, no action has been taken.

In 2000, the Canadian Human Rights Act Review Panel, lead by Justice Gerard La Forest, recommended that the Canadian Human Rights Act be amended to include gender identity, adding:

to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issues to remain invisible. (emphasis added)

Regrettably, none of the recommendations of the Panel have been adopted.

Robinson was adamant in his refusal to include gender identity and gender expression in C-250. After its passage, he was reported to have acknowledged his error and committed to work for the protection of transgender and transsexual people in the future. His successor as Member of Parliament for Burnaby-Douglas, and NDP LGBT critic, Bill Siksay, has made good on this commitment.

Neither of Siksay’s private member’s bills–to amend the Canadian Human Rights Act and to amend the Criminal Code–had all party consent even to be debated, let alone voted and adopted. With the federal election even they, in their silence, have been erased.

On a more positive note, in 2002 the legislature of North West Territories amended its human rights law to include gender identity and proclaimed it. It was much easier because of the significant difference between Inuit culture and that in the south.

This became the example for a New Democratic Party election plank in the 2004 federal election–though there was little profile for it.

Since 2002, and particularly during the heady days of 2005, as the cites from Munter and Arron above demonstrate, a political orthodoxy has been established. This orthodoxy, as is clearly indicated in the cites, is that ALL LGBT people have human rights. And because ‘we’ all have human rights it is time to move “beyond legislative reform…face the challenge of changing hearts and minds.”

The best that can be said of this orthodoxy is that it is incorrect.

It is a very real barrier to advocacy based on the truth which we must fight simply to be heard. It is more than what the La Forest Report described: our issues have not simply been silenced, they, and we, have been erased.

All that remains is an imposed unity under the banner of sexual orientation–or nothing.

In 2005, Egale Canada formally adopted a trans advocacy policy that includes both gender identity and gender expression, declares support for Bill Siksay’s private member’s bill to amend the Canadian Human Rights Act and “other legislation” and calls for engaging the supporters of equal marriage to support the human rights of trans people.

As drafter of this policy it was my intent also to support legislation such as Siksay’s bill to amend sections of the Criminal Code to include gender identity and gender expression as his predecessor’s C-250 had included sexual orientation.

You will not have heard of this policy because, though formally adopted, it was repudiated almost as soon as it was adopted through studious inaction. In 2007, when Egale Canada abandoned Ottawa, and lobbying Parliament, it confirmed its repudiation of transsexual and transgender people.

On February 1, 2007, the Supreme Court of Canada announced it would not hear the appeal of Kimberly Nixon regarding her case with Rape Relief Society of Vancouver. As is its habit, the Court did not give reasons.

This might have been an opportunity for the Supreme Court to take judicial notice of gender identity, at least, as an “analogous ground” to those in Section 15 of the Charter as it had done with respect to sexual orientation in the late 1990’s with Vriend v. Alberta et al.

An opportunity to dream.

As recently as May 12, this year, the Executive Director of Egale Canada, Helen Kennedy, declared:

We may have human rights for LGBTQ people in Canada, but you’d never know it based on these results.

The reference is to Egale’s Safe School Survey, but looking at the PDF backrounder, you’d never know transgender and transsexual youth exist. I simply point out that the lives of trans youth are not blighted by homophobia alone.

It has come to the point where the former editor/publisher of Capital Xtra, Ottawa’s gay and lesbian paper, part of the Xtra chain, owned by Pink Triangle Press–which excludes both trans and bi people from its Mandate–can declare:

The numbers of gays and lesbians for outweigh those of trans [sic].

as a premise for marginalizing the lives and issues of transsexual and transgender people as similar statements regarding gay and lesbian people in 2005, 2002 and the late 1990’s were intended to marginalize gay and lesbian people. In those days many considered such comments homophobic.

Why would we not now consider these comments transphobic?
Not to mention the revisionism with which this and following columns are rife.

In recent years, in community organizations in Ottawa, there has been much discussion regarding the effect of the alienation of gay men from society on their mental well-being leading to behaviour of significant risk.

I absolutely believe it because I know the same effect as a transsexual woman. All trans people do.

It is unclear, certainly in Ottawa, if there is any formal discussion of this issue. My own efforts to establish a Trans Services Initiative to address this and related concerns was unable to proceed.

During the campaign for same-sex marriage I attended all the demonstrations held in Ottawa, from the smallest to the largest.

The euphoria of the gay and lesbian people present was obvious.

Their exaltation is evident in the triumphalism of the Munter and Arron cites above. Yet, while working at CEM, we were admonished not to mention trans or bi people–Munter’s comment to the contrary notwithstanding–even though there were/are positive effects for trans and bi people even in the silence.

But there is more than silence.

I argued at the time that the Civil Marriage Bill, speaking in terms not of ‘a man and a woman; a man and a man; a woman and a woman’ but simply “two persons,” is really far more radical that CEM/Egale Canada, and others, wish to admit.

The law makes no reference to gender, sex, sexuality, gender identity or gender expression.

Why must it be particularized to sexuality?

For myself, I was never able to share in the euphoria of these demonstrations. Unnerving me were always questions:

Why cannot this issue be generalized to include us as we are?

Why will they not acknowledge our contribution–even our existence?

Are they ashamed of us?

Are they embarrassed by us?

And this is why your backrounder for RHO so unnerves me.

I understand making explicit the way the lives and needs of transsexual and transgender people diverge from gay and lesbian people is widely considered inconvenient and unnecessary–because most of us will probably/eventually come out as gay or lesbian. I understand that many also find this project divisive and believe the lives and needs of all LGBT people must explicitly converge.

This is not constructive in any way for transgender and transsexual people.

If “there are still gaps and inequities in services and in the health status” of gay and lesbian people despite a good decade of significant progress–and I do not challenge this–how much worse must it be for transsexual and transgender people who not only have not made progress, but continually have our status materially misrepresented and/or erased?

When will we be formally welcomed from the margins to the mainstream?

To achieve significant progress our current status must, as the La Forest Report declares, be acknowledged.

I had hoped, as an insider, to challenge what is not simply silence, but a routine erasure of transgender and transsexual people, our lives, our struggles, our needs. But as an outsider, a routine experience for transsexual people, I do not see this as a practical possibility.

And it is in this context that I really do not understand your invitation to sign up for the RHO newsletter or as a possible volunteer in projects organized in the same manner as your backrounder.

It is difficult enough anywhere north of Steeles Av to participate meaningfully in Toronto based, nominally provincial organizations trying to contribute–as I have with Ontario Public Interest Research Groups, Ontario New Democratic Party, Trans PULSE Project, Trans Human Rights Campaign, Rainbow Health Network and now Rainbow Health Ontario.

I accept that Rainbow Health Ontario is the only game in the province but I implore you to reconsider the way you have conceptualized your mandate, the way you have conflated very different people to make the challenges to the health and well being of all LGBT people seem simpler than they really are to make them politically palatable.

There is no doubt political considerations exist, but the health and well being of all LGBT people cannot be held hostage to them, certainly not given what we have accomplished and all we must yet accomplish.

Jessica Freedman

stenographers for power

September 17, 2008

don’t challenge the subjects of their stories, they just tell
you what the government is saying. In other words, they’ve become
stenographers for power and not journalists.

I have just come across the Capital Xtra post-Pride edition–with a picture of a Pride reveler on the cover. I didn’t pick it up when it came out because I find Capital Xtra not to be particularly credible–I do read columns online on occasion, particularly when I am denounced. As has happened over one, two and possibly three recent columns by the former editor/publisher, Gareth Kirkby. As he and another columnist denounced me some 18 months ago.

There might be some question about the actual number of pieces in the current series of denunciations. One, if you accept only the column where I am denounced by name; two, if you accept “not one lone Ottawa individual” as being me; three if you accept this as sequlae.


I found this edition in the staff room of the Chapters big box bookstore where I work in Ottawa. Flipping through it, the fourth page actually, I found Letters to the Editor.

In a section captioned The Trans Movement I found a letter from me and one from Shannon Blatt. It was Blatt’s notice of return of her Capital Xtra Community Hero Award for 2007.

I don’t believe I have ever written a letter to the editor–certainly not this one. It was a comment posted to the second of Kirkby’s series of three–“not one lone Ottawa individual.” It was lifted and published without my permission and without my knowledge.

Can they do this?

I know of no law or rule to prevent it. And there is a notice in the Guidelines to Readers that it may be published in an Xtra paper. So I suppose that makes it alright.

However, I certainly wonder about the intellectual honesty of doing this without notice.

This is not the first time Capital Xtra has lifted a comment.

The quote which so incensed Kirkby, published in the first of this series of three columns–on “hierarchies of oppression,” linked above–was lifted from my blog, The most marginalized of LGBT people, and reads

I have always thought of marginalization/oppression to be, not a stagnant body of water, but a series of cascades from the most mainstream to the most marginal. We are all holders of privilege and invisibilize those more marginal than ourselves, unless we are diligent and open.

About a year ago a ‘reporter,’ no doubt meeting a deadline, lifted a quote from an email I had posted to Egale Canada’s main email list. I hadn’t gotten back to her because of a reluctance to participate in Capital Xtra due to the earlier denunciation–more on that later.

Again, I don’t think there is any legal prohibition against doing this–there is, of course, no fine print on Egale Canada’s terms of use saying posts will appear in an Xtra newspaper.

Shannon Blatt in her posts to Kirkby’s columns on challenged his intellectual honesty and it was because these columns were published, as she noted in her letter to the editor, that she returned her award.

There is also history between the new Managing Editor, Marcus McCann, and me.

About 2 years ago, in what was probably one of his very first news pieces for Capital Xtra, McCann was present when the Ottawa Police Service (OPS) LGBT Liaison Committee held a Trans Services educational for senior officers, and others, at Centerpointe Theatre.

Along with Jade Pichet (Capital Xtra Youth Community Hero Award Winner for 2007) I was invited to speak.

We did. At length.

Senior Officer Kai Liuk gave a presentation on the Forester Human Rights Tribunal decision on searches of trans people. A training video on traffic stops of trans women–produced by the Ottawa Police Service–was shown.

Joanne Law, long time transgender activist–and long active on the Committee–recounted pounding on the table to get ‘transgender’ added to the Committee’s Mandate. David Culpepper, civilian employee of the OPS attached to the Committee, presented a cake celebrating 25 years of the Committee’s work and bantered with Law on their experiences together on the Committee.

None of this appeared in McCann’s piece, except banging on the table. It became a tangent point to an opinion piece on community policing and, if memory serves, gay people.

Somewhat later, speaking to then editor/publisher Kirkby about this work of imagination, I was told his reporters are not stenographers. Although somewhat cryptic, I now believe he was referring to the notion of reporters becoming “stenographers for power” as we have clearly seen in the United States and first pointed out by Norman Soloman in his 1990 book, Unreliable Sources. This notion was discussed around the cite I have placed at the top of this comment.

What power do trans people have? Why didn’t McCann challenge us instead of erasing us?

Trans people are so marginalized a ‘reporter’–and Managing Editor to be–feels free to erase a whole event and imagine something else–as if the event had never happened.

Further history: About 18 months ago, McCann did a profile of me when I was, for a short time, acting chair of the GLBTTQ Community Centre. In it I spoke of the need to focus on the marginal among LGBT people–bisexual and trans people. This became the basis for two denunciations in the same issue of Capital Xtra, one, an editorial from then editor/publisher Gareth Kirkby and another from another gay man who was writing columns at the time.

I must say how upset I was by this; I resigned as chair at the next meeting.

I must also say I no longer feel this way about Capital Xtra denunciations!

This was part of a successful campaign by Kirkby, started previously, to undermine the Community Centre.

It began during a screaming match over the name of the Centre–Kirkby’s preference was either Gay and Lesbian Community Centre or Queer Community Centre. His concern was that the Centre maintain a queer identity which he defined as growing out of the bars, gyms, spas, clubs, etc, of the gay community. It remains unclear how those of us who didn’t come up through the bars, gyms, spas, clubs, etc, of the gay community can share in this ‘queer identity.’ I think this covers many GLBTTQ people.

I have commented elsewhere on Capital Xtra’s erasing of trans people.

I believe these several cites without notice–even though one is noticed by the Guidelines to Readers–along with Shannon Blatt’s concerns call into continuing question the intellectual honesty of Capital Xtra, even as Kirkby has stepped down/possibly up into the higher reaches of Pink Triangle Press–the owner of the Xtra papers–in June and installing Marcus McCann as Managing Editor.

I have previously commented upon Pink Triangle Press’s exclusion not only of trans people but also bisexual people from its rather lyric Mandate, Daring Together–the title of Kirkby’s column. In this way, I suppose, there is a certain intellectual consistency to Capital Xtra and the way it works.

But, given this consistency, why would its editors and reporters not notify me when they lift my internet posts and publish them; there is no legal recourse I am aware of–and if their notice was the evening before that issue appeared, what could I do?

To my mind a question of power arises from this now apparently facile habit–which is probably not even noticed by Capital Xtra’s staff.

This invisibility also makes it a matter of privilege.

Some hold out hope for McCann to be something other than a Kirkby clone, yet I am uncertain how far he has diverged/will diverge from his mentor when omission of notice continues.

A small thing, perhaps; tip of the iceberg, perhaps.

All I can do is write this commentary–speak truth to these stenographers for power.