On Monday, I wrote about the Bill C-389 that was voted on in the House of Commons yesterday. I am happy to report that the Bill passed the house (Yeas: 143; Nays 135). The transcript of Monday’s debate can be read in full here.
As it was with the last debate, the MPs focused on the definition of the terms “gender identity” and “gender expression,” questions about whether this discrimination is already covered, and some MPs dispelled myths about the proposed changes. The Bill is not yet Canadian law, it still has to pass the Senate. Dented Blue Mercedes has an excellent summary of this reading and passing of Bill C-389.
Of course, there are still opponents of the Bill. The Toronto Sun has an article by Brian Lilly, in which he claims that the Bill opposes equality. I want to offer some brief comments on what I believe are some mischaracterizations in Lilly’s argument. Lilly writes:
The idea is to give greater protection to transgendered and transsexual citizens.
Whatever happened to the idea that all are equal before the law?
A true equality, one in the best Canadian tradition, would simply state that all people are created equal and should be treated equally before the law.
It would do away with all those special privileges and would re-establish a unique standard for all Canadians.
Somehow, this is a radical idea these days.
Lilly worries that the bill gives “special rights” to certain groups on the basis of their group identity. According to Lilly, it would be more equal to simply say that all are equal before the law, and leave it at that. Identifying certain groups as ones that cannot be discriminated against is problematic, according to Lilly, because this creates “special” groups who have “special” rights that others do not have.
I think Lilly’s analysis is mistaken for at least two reasons. First, he confuses distinctions between kinds of discrimination and distinctions between kinds of persons. Second, he fails to note that the relevant distinction is between legitimate and illegitimate forms of discrimination, and that once this distinction is made it applies equally to all Canadians.
1. Kinds of Discrimination vs. Kinds of Persons
The law does not pick out a class of people; instead it picks out a kind of discrimination. The legislation does not ask complainants to identify themselves as “gender identity” or “gender expression” (that would not even make sense). Nor does the law ask complainants to identify themselves according to their gender identity or gender expression before considering a case (so that only homosexuals or trans Canadian could bring suit under the law). The law does not require complainants to identify themselves according to their group memberships at all. Rather, it is the discrimination that becomes identified in particular ways. The legislation makes it illegal to discriminate on the basis of gender expression or gender identity. That picks out a kind of discrimination, not a kind of person.
Thus, Lilly’s worry that the law protects “an ill-defined group” is misplaced. Lilly writes:
We should have no protected groups. Either we believe in equality or we don’t.
But this seems to mistake the purpose of the Canadian Human Rights Act [PDF]. The Act does not create “special” classes that are protected, while others are not. Instead, the Act describes prohibited grounds for discrimination, and all Canadians are protected from these prohibited forms of discrimination. The Act picks out kinds of discrimination rather than kinds of people. To quote [PDF]:
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, marital status, family status, disability or conviction for an offence for which a pardon has been granted. [emphasis added]
Notice that the Act does not specify that only African-Canadians are protected, or only women are protected. The act does not pick out any particular group that is protected from discrimination while leaving other groups unprotected. Instead, the act picks out particular kinds of discrimination from which all Canadians are protected. Any person (no matter their particular group identifications) could bring a charge of discrimination on the basis of gender expression or identity.
The wording of the legislation in the Human Rights Act [PDF] is perfectly consistent with a cis man  bringing a law suit against an employer who found him “too macho,” for example. Historically, in both Canada and the United States members of both dominant groups and marginalized groups have successfully brought discrimination lawsuits to the courts. Men, for example, have charged employers with discrimination just as women have.
The wording of the hate crimes bill is somewhat more troubling on this front, but it is also consistent with litigation from any subsection of the Canadian population. The wording is troubling because it does indicate the presence of “identifiable groups.” However, the issue is not whether one is actually a member of these groups, instead the law specifies that the complainant must provide:
evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, gender identity, gender expression, sexual orientation, or any other similar factor,
This is consistent with a complainant from any group making such a charge. For example, a heterosexual man might be gay-bashed while walking in a gay neighbourhood because his assailants might assume that any man walking in a gay neighbourhood is homosexual. If this heterosexual man could provide evidence that the assailants were motivated by bias, prejudice or hate, then he might be able to make a case for prosecuting the assault as a hate crime.
2. Legitimate vs. Illegitimate Forms of Discrimination
So, if these laws are not intended to pick out a kind of person, but are instead intended to pick out a kind of discrimination, why is it important to distinguish between kinds of discrimination? The kind of discrimination picked out distinguishes between when unequal treatment is acceptable and when it is not. Lilly is mistaken in his interpretation of “true equality,”  and he does not seem to understand the distinctions made by the Human Rights Act. Lilly believes:
true equality… would simply state that all people are created equal and should be treated equally before the law.
It would do away with all those special privileges and would re-establish a unique standard for all Canadians.
The Act maintains a single standard that is applicable to all Canadians. It does not replace “true equality” with special rights for special groups. Rather, the purpose of the act is to distinguish between legitimate and illegitimate forms of discrimination. Once these forms are distinguished from one another, all groups are protected from illegitimate forms of discrimination.
The reason it is necessary to specify the prohibited forms of discrimination is that we think all are equal, but also admit there are legitimate reasons for treating some people unequally in some circumstances. For example, if I were to apply for a job as a surgeon, the hospital to which I applied would have legitimate grounds for discriminating  against my application: namely, I have no medical training whatever, let alone surgical training.
The legitimate grounds for discrimination are numerous and so it would be cumbersome to attempt to codify each of them into law. It is much less cumbersome to simply codify the prohibited grounds that do not constitute a legitimate reason for discriminating against a person. Non-discrimination laws simply state that x-basis is not a legitimate grounds for treating some unequally. Usually these particular reasons are specified because historically some people (perhaps most) did believe these to be legitimate grounds for discrimination.
3. In Sum
Non-discrimination laws do not distinguish kinds of persons or social groups; they distinguish kinds of discrimination. The kinds of discrimination distinguished in non-discrimination laws specify illegitimate bases for unequal treatment. These distinctions are necessary because, while we believe all should be equal under the law, we also recognize there are some legitimate reasons to treat some unequally under certain circumstances. Non-discrimination laws specify criteria that are illegitimate considerations for differential treatment. Once non-discrimination laws have specified illegitimate criteria for differential treatment, these standards are applicable to all Canadians. Non-discrimination laws do not create multiple standards applicable to only some Canadians. Instead, they create a single standard that is applicable to all Canadians.
Dented Blue Mercedes on Bill C-389
A Globe and Mail article suggests the Bill will not pass the Senate.
Shakesville on the Bill’s Passing the House, includes a list of senators in case one wants to write to voice support for passing the Bill in the Senate, too.
Feminist Philosophers has a brief discussion of the Bill here.
 ‘Cis’ is a Latin prefix meaning “on this side” or “on the same side;” ‘Trans’ means “across” or “on the opposite side of.” ‘Cisgender’ and ‘cissexual’ are adjectives for those who are not transgender or transsexual. So just as someone who was assigned one sex at birth, but comes to identify and live as a member of the other sex, is called a ‘transsexual’ (because they have crossed from one sex to the other), someone who lives and identifies as the sex they were assigned at birth is called a ‘cissexual.’ This definition comes from here and here. There is also an entry on Wikipedia here, and an explanation of why ‘cisgender’ is not an insult here.
 I am not even going to get into the problematic assumption that “true equality” requires treating everyone exactly the same. There is no single “true equality,” instead there are a number of different ways to understand equality. I will not enter this debate here, but for more information on the varieties of equality, see this entry in the Stanford Encyclopedia of Philosophy. I don’t feel the need to address this issue, because I have already demonstrated that the law does not rely on classes of persons or differential treatment for those classes.
 ‘Discrimination’ has several meanings. In one sense of the term (the one I am using here) ‘discrimination’ simply means to distinguish between two things. In the other sense of the term, ‘discrimination’ means to treat someone unfairly on the basis of some bias or prejudice. See here for more precise definitions.