The Canadian Security Intelligence Service (CSIS): past and present

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

Canada’s national security interests have been enforced by the Canadian Security Intelligence Service (CSIS) since 1984. The agency and its activities have since remained shrouded in secrecy. This brief will attempt to dispel some of that secrecy by presenting a synopsis of the history of CSIS and an overview of its legislative form. In the process, the shortcomings and coming changes for the agency will also be discussed.

History

CSIS has its roots in the October Crisis of 1970. The kidnapping of James Cross and ensuing murder of Pierre Laporte by extremist members of the FLQ led Prime Minister Pierre Trudeau to affect the War Measures Act. Recognizing that the threat could have been averted, the RCMP created the Security Service branch to gather information on future threats. The branch did not maintain its purely informational role for long. It soon began to engage in various forms of subversion and disruption that went largely undetected until the mid-70’s[1].

The conduct of the Security Service grew increasingly egregious, famously culminating in the burning of a barn to disrupt a meeting between the FLQ and the Black Panthers in 1972[2]. When their misdeeds eventually came to light, a commission was established under the direction of Justice David MacDonald in 1977. The commission presented its findings in 1983. The report outlined a variety of illegal acts of subversion carried out by the RCMP, including spying on citizens and presenting forged communiques as evidence in court proceedings[3].

The MacDonald Commission attributed the organization’s misdeeds to the lack of a clear mandate and the reluctance of politicians to interfere with police work. Regardless, the commission refused to concede that a national security agency was unnecessary. The commission outlined that the goal of an agency should be to “secure democracy against both its internal and external enemies without destroying democracy in the process”[4]. It advocated for the creation of a civilian intelligence collection service with an entrenched legal mandate.

Later that year, a bill was tabled in response to these recommendations, creating the Canadian Security Intelligence Service. The bill initially received strong criticism concerning the broad scope of powers it conferred to the agency. Notably, the agency would have had powers to engage in “any other act or thing that is reasonably necessary”, effectively greenlighting it to operate outside of the law. Parliament eventually bowed to the criticism and referred the bill to a senate committee headed by former cabinet secretary Michael Pitfield. The committee produced a number of recommended amendments, maintaining the importance of confining CSIS to information collection and not law enforcement[5].

Parliament incorporated these amendments and the modified bill received Royal Assent in 1984 as the CSIS Act. While CSIS’s powers had been reined in through committee hearings, its mandate was still quite broad. Parliament narrowed its initial definition of “threats against any state allied or associated with Canada” in favour of one that captured more immediate harms. But, the definition still gave CSIS very broad authority to collect and retain information. The framework of the organization was relatively untouched until the amendments by the Harper government in 2015[6].

The Modern CSIS

Former Prime Minister Harper’s swansong, the Anti-Terrorism Act, 2015, pushes CSIS even further away from its original conception by the MacDonald commission. With an unchanged mandate, CSIS can now take direct action to disrupt threats. The only caveat to this positive right is that the agency may not cause harm, death, or injury. CSIS now has explicit authority to contravene the Charter of Rights and Freedoms and Canadian Law. These actions must be authorized by a federal court judge, but these proceedings are (ironically) subject to severe privacy limitation[7].

CSIS’ operations are subject to oversight by the Security Intelligence Review Committee (SIRC). The SIRC has to ability to access all information held by CSIS and measure its performance against legislatively mandated thresholds. Commentators have commended the role played by the SIRC but lament its lack of resources. The oversight of an organization with such a broad scope of power and jurisdiction is a herculean task, exacerbated by insufficient staffing and managerial missteps. The expanded authority granted to CSIS spreads a strained SIRC even thinner[8].

On the Horizon

The Trudeau Government was motivated by the salient problems with the 2015 amendments to draft the largest overhaul to CSIS since its creation. At the time of writing, the bill has yet to be passed and is currently before the Senate, but it offers some welcome changes. First, it adds some important constraints to CSIS’ interventionist authority, including a prohibition on torture and detention. CSIS must now act consistently with the Charter and whatever immunity from the law is granted to it appears within the act[9].

These new powers will be reviewed by a new “super-SIRC”. The agency will now be able to access information from all departments, compel reviews within these departments, and hear complaints. The whole creates a review agency capable of identifying and intervening in CSIS’ operations. But, while the new legislation gives the review agency some teeth, its unclear whether it will control enough resources to adequately exercise this power[10].

Conclusion

In summary, the modern CSIS is getting closer to that envisioned by the MacDonald Commission. Protecting the national security of Canada is an unenviable task that requires lawmakers to constantly brush up against the maintenance of civil rights. It is possible, however, to have one without sacrificing the other. A national security agency only truly keeps the interests of the people it protects in mind if it is based on accountability, transparency, and the rule of law.

 

[1] Craig Forcese and Kent Roach, False Security: The Radicalization of Canadian Anti-Terrorism (Toronto: Irwin Law, 2015) at 25.

[2] R.C. MacLeod, “Royal Canadian Mounted Police (RCMP)” (February 7, 2006), online: The Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/royal-canadian-mounted-police>

[3] Ian Cameron, “Commission of Inquiry concerning Certain Activities of the Royal Canadian Mounted Police. Second Report: “Freedom and Security of the Law”” (1985) 48 Mod L V 201.

[4] Ibid at 203.

[5] Supra note 1 at 42

[6] Ibid at 45

[7] Craig Forcese and Kent Roach “Bill C-51 Backgrounder #2: The Canadian Security Intelligence Service’s Proposed Power to “Reduce” Security Threats through Conduct that May Violate the Law and Charter” (2015) [Unpublished, archived at SSRN (https://ssrn.com/abstract=2564272)].

[8] Ibid. See also Roy Atkey “CSIS Oversight is alive and well”, The Globe and Mail (February 3, 2015), https://www.theglobeandmail.com/opinion/csis-oversight-is-alive-and-well/article22750488/

[9] Craig Forcese, “Bill C-59 and the Judicialization of Intelligence Collection” (2018) Ottawa Faculty of Law Working Paper No. 2018-13.

[10] Ibid

Non-Citizen Voting Rights

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

Background

In recent decades, the right to vote and meaningfully participate in the democratic process has widely been recognized as a fundamental right. While the right to vote has increasingly been extended to historically disenfranchised groups (such as women, inmates, and Indigenous peoples), citizenship remains a widely accepted limitation on the right to vote. As it stands in Canada, permanent residents are not permitted to vote at any level of government. Furthermore, Section 3 of the Charter, which guarantees the right to vote and run for office explicitly states that these are rights that are limited to citizens only. Nevertheless, recent proposals in Toronto, Vancouver, and other Canadian municipalities[1] to extend voting rights to permanent residents in municipal elections have brought the issue of non-citizen voting rights to the forefront. This article explores why the disenfranchisement of non-citizens matters, and the existing legal framework in Canada.

Why Does it Matter?

As suffrage has expanded beyond race, sex, and class, non-citizens continue to be the largest adult group excluded from political participation. Yet, the exclusion of non-citizen residents from the democratic process has been widely accepted, since our conception of democracy and voting rights is so closely tied to citizenship.  Although many non-citizen residents pay taxes and own property where they live, they continue to be excluded from the democratic processes, leaving them politically powerless in decisions that have a direct impact on their livelihood. This group includes particularly vulnerable populations such refugees and temporary foreign workers.

The practical implications for non-citizen resident disenfranchisement are significant., In municipalities like Toronto with one Canada’s largest foreign-born population (nearly 1.3 million individuals in 2016), it means that  nearly half of the adult population is left politically voiceless. The disenfranchisement of a large portion of non-citizens who reside in a territory but are unable to participate politically leads to a problem of democratic legitimacy.

Current Legal Framework in Canada

As it stands in Canada, no non-citizen is permitted to vote at any level of government, be it municipal, provincial, or fedral.  The wording of Section 3 of the Canadian Charter of Rights and Freedoms, which upholds democratic rights, explicitly states that voting rights are reserved for Canadian citizens, as  it states, Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. ” The Supreme Court has interpreted the purpose of section 3 as to ensure that every citizen has a the right to play a meaningful role in the democratic process.[2] Democratic rights are thus one of the few Charter-protected rights that are only guaranteed to Canadian citizens.[3] While the current constitutional framework limits voting rights to Canadian citizens, this would not preclude municipalities from extending voting rights to non-citizen residents if there was the political will.

Who else is doing it?

Extending voting rights to non-citizen residents is not without precedent. As it stands, forty five democracies around the world have granted voting rights to foreigners, to varying degrees. While certain jurisdictions allow non-citizen residents to vote in national elections, the majority of democracies confine non-citizen voting rights to local levels.  [4]  Furthermore, all jurisdictions that allow non-citizen voting have long-term residency requirements (this can range from one year to ten years), which disqualifies individuals like tourists, students, and temporary seasonal workers from voting.

Examples of jurisdictions that allow non-citizen resident voting include the following:

  • Sweden allows non-citizen residents to vote in municipal elections and county/council elections, so long as they have been registered in the Swedish population for at least three years.
  • The Netherlands allows non-citizen residents to vote in municipal elections if they have been living in the country with a residence permit for at least five years.
  • The United Kingdom allows resident Commonwealth citizens to vote in general elections. This means qualifying residents who are citizens of nations such as Canada, New Zealand and Bangladesh are permitted to vote.
  • In Malawi, non-citizen residents are permitted to vote in national elections after a period of seven years of residence.
  • In Uruguay, non-citizen residents are permitted to vote in national elections after a period of fifteen years of residence.
  • New Zealand is one of the most inclusive nations, allowing non-citizen residents to vote in both national and local elections after only one year of residency.
  • Chicago allows non-citizens to run and vote in school board elections. From 1968 and 2003, New York did the same.
  • Six municipalities in Maryland allow non-citizen residents to vote in municipal elections.
  • Luxembourg allows non-citizen residents to vote in municipal elections if they have been a resident for at least five years.
  • Belgium allows non-citizen residents that are listed on the foreign nationals list or local electors list to vote in municipal elections.
  • In Switzerland, several cantons allow non-citizen residents to vote at the local level. However, residency requirements can vary from just one year to five years.
  • Article 8b of the 1993 Maastricht Treaty allows citizens of the fifteen signatory states in the European Union who reside in the EU to vote in another EU state.

Conclusion

In an increasingly globalized and transnational world, the voting rights of non-citizens will continue to be an important point of discussion. Although many non-citizen residents pay taxes and own property where they live, and are directly impacted by political decisions, they continue to remain politically voiceless, which leads to an issue of democratic legitimacy. Although Canada’s current constitutional framework only guarantees that Canadian citizens have the right to vote, other jurisdictions have either already granted non-citizens voting rights, or are considering extending the right to non-citizens. As such, Canada should remain active in the debate.

 

 

[1] City of Vancouver, motion B.8, Permanent Resident Voting (17 April 2018); City of Toronto, motion GM22.15, Proposed Electoral Reforms (11 June 2013

[2] Figueroa v Canada (Attorney General), 2003 SCC 37, [2003]1 SCR 912 at para 33

[3] Rheaume v Ontario (Attorney-General), 1989 70 OR (ed) 602, leave to appeal to SCC refused. 

[4] David C. Earnest, “The enfranchisement of resident aliens: variations and explanations” (2015) 22:5 Democratization 861 at  863.

Useful Links and Resources about National Security

Check out our growing collection of useful links and resources about privacy rights compiled by Talk Rights volunteers, including related organizations, government resources, guides, and legal information. Is there something that should be on this list, but isn’t? Contribute at talkrights [at] ccla [dot] org.  For CCLA’s own materials on national security, visit the national security pages on our website under “Our Work“.

National security organizations

Government of Canada Links

  • A link explaining the National Security Act, 2017 including the problems it tried to remedy, a brief discussion of the CSE, and the Charter statement presented by the Minister of Justice. The Act tried to correct a number of problems with its predecessor, the National Security Act, 2015.
  • A database containing all publications and reports from the Government of Canada on the issue of National Security. These publications address the current state of Canada’s National Security strategy, highlight its pitfalls, and give it direction, amongst other things.

Inquiries

  • The Arar Inquiry, report presented by Commissioner Dennis R O’Connor concerning Maher Arar, who was detained in New York on suspicions of terrorism and extradited to Syria. Arar was detained for over 10 months in inhumane conditions and tortured routinely before being declared “completely innocent” by Syrian officials. A public inquiry was launched where Arar was exonerated and the failure of Canadian officials to take proper action was highlighted.
  • Almalki, El Maati, Nureddin Inquiry, concerning three men who were detained and tortured in Syria. The report was chaired by former Puisne Supreme Court Justice Frank Iacobucci. The report focuses on the inhumane conditions imposed on the Canadian citizens during their detainment and the deficiencies of Canadian Officials that contributed to these human rights violations.
  • The Air India Inquiry by retired Justice of the Supreme Court, John C Major, into the deadliest terrorist attack ever carried out on Canadians. A bomb was set off in an Air India flight while off the coast of Ireland. A total of 329 people were killed, including 268 Canadians. The inquiry revealed that the bombing could have been avoided had it not been for serious intelligence failures by Canadian agencies.

Important Legal Cases

  • Bora Laskin law library resources on the case of Canadian citizen Omar Khadr. At 15 years old, Khadr was the last citizen of a western state to be detained at the infamous American Guantanamo bay prison. The prison has been widely criticized for its inhumane conditions and prisoner mistreatment. This page contains a wealth of information, including a timeline of events, court decisions, and the amicus brief.
  • X(re): a decision by the Federal Court limiting the scope of CSIS information collection powers. The judge ruled that CSIS could conduct espionage on foreigners and non-threats, but that the investigation had to be wholly within Canada. Large parts of the judgement are censored to protect sensitive information, but Noel J. is clearly confining CSIS to a narrower scope of operation.
  • R v Stinchcombe [1991] 3 SCR 326, is a landmark Canadian case concerning the disclosure of evidence. The Supreme Court of Canada ruled unanimously that an accused has a right to mount a full defence, which includes a duty to disclose on the part of prosecution. The issue is controversial in National Security matters because the legal system needs to strike a balance between an accused’s right to a fair trial, and the need for some clandestine operations where the protection of the Country is concerned.
  • Kazemi, et al v Islamic Republic of Iran, et al: Supreme Court decisions awarding damages to the estate and son of Zahra Kazemi, who was imprisoned, sexually assaulted, and tortured in Iran. Mrs. Kazemi tragically died over the course of her imprisonment, and a case was filed on her behalf. The decision highlights the atrocities of torture as well as its continued existence.

Web Resources (remember, for CCLA resources, check out “Our work“)

  • Amnesty International is an enormous body of resources concerning abuses of human rights across the globe. Since their beginning in the ‘60’s, they have advocated for a variety of issues, many of which relate directly to National Security concerns in Canada.
  • National Security law blog by Craig Forcese, professor of National Security law at the University of Ottawa’s common law faculty. Professor Forcese has been widely recognized for his work in advancing human rights in national security and for his contributions to the understanding of national security law and policy.
  • Open Canada, which produces multi-media content to explain and contextualize emerging and persistent international issues. National security and its collateral consequences are issues at the top of Open Canada’s agenda.
  •  The Canadian Human Rights Commission’s special report to parliament addressing human rights accountability in National Security Practices. The report addresses a number of concerns echoed by the CCLA, including the relationship between national security, human rights, and the rule of law. 

Special topics

Discrimination, Listing, and Profiling

  • The University of Alberta explores the Canadian listing process. Listing involves creating a summary of terrorist entities to streamline one part of an exceedingly complex national protection framework. Experience indicates that lists are more often used during Immigration and Refugee Board decisions and have led to systematic discrimination against targeted groups.
  • A report by the Canadian Human Rights Commission discussing the effectiveness of profiling from a national security perspective. Profiling has been used by law enforcement since well before 9/11 and theoretically focuses efforts to produce more effective national security. In practice, it has led to severe discrimination and systematic racism. The report asks: is it worth it?
  • A talk by Azeezah Kanji on the inherent racism in National Security in Canada. Kanji is an academic with a master’s in law who focuses on issues of national security. She is also the director of programming at the Noor cultural center. This speech was delivered at the International Civil Liberties Monitoring Group’s annual general assembly.
  • An article discussing racial profiling in Canada’s war on terror in the wake of 9/11. The article is dated but still immensely relevant and makes important points concerning the futility of profiling in national security efforts. 

Due Process, Fairness, and Counter-Terrorism

  • The Canada Evidence Act regulates the admission and exclusion of evidence in court proceedings. Evidence in National Security proceedings has been controversial. Because of the nature of National Security, defendants may be unable to access and review all of the evidence presented against them.
  • A paper by two of Canada’s leading experts on National Security law and policy, Kent Roach and Craig Forcese, responding to the Government’s proposed amendments to the intelligence to evidence process in court proceedings.
  • The University of Toronto’s faculty of law discusses the Charkaoui case, which challenged the constitutionality of the Security Certificate Regime. The regime permitted for immigrants to be denied access to Canada and detained on grounds of national security. The Supreme Court held unanimously that the regime violated the rights guaranteed in section 7 of the charter. However, the regime continues to exist in a modified form.
  • An article by Kent Roach discussing Section 7 of the Charter of Rights and Freedoms and national security in Canada. The paper compares two threads of jurisprudence in the interaction between these seemingly conflicting principles. Roach concludes with optimism that the rights in Section 7 will prevail over the human right violations of national security.

Torture

 

 

Ella Webber Talks Trans-Non-Binary Rights with the CCLA

This series of 12 video clips documents a conversation between CCLA volunteer Amara McLaughlin-Harris and Ella Webber. At the top of each video you can see the key questions the clip will discuss.

Amara introduces it as follows:

Ella Webber is an old friend of mine. We grew up a street away from one another on Toronto Island and I was a regular fixture in their family home. 

Growing up with Ella taught me many things. Among them, was the fact that the binary, “girl or boy” system of gender is more simplistic than the living human reality. Knowing Ella has also given me an understanding of the confusion, fascination, and violence directed at those who don’t fit into the binary system.

This interview was meant to give Ella a chance to speak candidly and publicly on the subject of gender identity and discrimination. Many thanks to Ella for their willingness to share their time, experiences, and insights.

Glossary

Transmasc-non-binary: This term is a hybrid of the term “transmasculine”, which describes someone who was assigned female at birth and identifies with masculinity and the term “non-binary,” which indicates someone who does not identify exclusively as masculine or feminine.

Passing privilege: The benefit of being able to “pass” as cisgendered.

POC: Person of colour, or non-white person.

Videos can be viewed below, or can be watched on CCLA’s Youtube Playlist here.

Video 1: 

What are some views of gender you’ve encountered and how do they relate to your own?

Video 2: 

In what ways has your gender been perceived by yourself and others over time? How would you describe the evolution of your gender over time?

Video 3: 

What does discrimination mean to you and how does it relate to the idea of equality?

Video 4: 

Can you recall early experiences of discrimination, judgement, or lack of experience on the basis of your gender and comment on how these have affected you?

Video 5: 

Since you have openly identified as trans and non-binary, how frequently and in what contexts do you feel you experience discrimination or conflict related to your gender? Any stories that you wish to tell?

Video 6: 

How do these experiences of discrimination that you’ve described affect you in terms of decisions you make, your sense of possibility, confidence, safety or otherwise?

Video 7: 

Are there environments where you can count on being treated respectfully and as equal? Where you can safely and comfortably be at ease with yourself and others?

Are there places you avoid or would never go because you fear or anticipate ill-treatment on the basis of gender?

Video 8: 

How does gender affect your interactions with new people in social contexts or otherwise?

Video 9: 

Why do you prefer the pronoun “they” and how significant is it to be called by your preferred pronoun? How do people commonly react or respond to using gender neutral pronouns and how would you reply to them?

Video 10: 

What about identification, bathrooms, or any other areas of Canadian life that tend to operate according to binary understandings of gender? How do you navigate these situations and how do they make you feel?

Video 11: 

What changes do you hope to see in the way gender is understood, particularly with respect to trans and non-binary people? How would your life be different in a gender-equal society?

Video 12:

What would you want to say to someone who is unfamiliar with or confused  by trans or non-binary identifying people or someone who can’t figure out your gender by looking at you? Do you have some tips for how this person might engage with or respond to you that would feel respectful?

 

Discrimination against Gender Non-conforming Individuals: Academic Sources and Debates

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website.

 

Durable solutions for discrimination may come with education, and the continued search for knowledge and understanding. As Florence Ashley underscores in her recent paper in the University of Toronto Law Journal, despite lawmakers’ best intentions, laws are no magic bullets. They are constrained by sets of principles that create inherent limits for them. Discriminations against gender non-conforming individuals, very often, differ from the paradigmatic cases of overt and intentional infliction of differential treatment that one tends to envisage. Often, they are very subtle and effected through contextualized actions that one might personally not consider as having discriminatory effects.

This article shares scientific data on topics related to discriminations faced by gender non-conforming individuals. Our hope is these can fuel reflection and give a greater understanding of the issues faced by gender non-conforming individuals. Here, we provide a multiplicity of scientific sources, as part of a guided reflection moving through several issues affecting gender non-conforming individuals. This allows us to illustrate emerging ideas about gender identity, the multiplicity of problems that it brings to the forefront as well as consider proposed methods of support. It also allows us to stress the importance of further research to deepen our understanding of gender identity and ultimately, how to legislate around these issues.

A first area that should interest us is the number of gender non-conforming people in the general population. Having various measures to determine how gender identity is expressed on the oft-referred gender spectrum provides useful insight into how neatly gender can be characterized and ultimately how institutional paradigms should be changed. It is important to note here, that “gender non-conforming” and “transgender” are not synonymous. A transgender person is someone who identifies as the sex opposite the one they were assigned at birth. Someone who is “gender non-conforming” is simply someone who identifies as not falling neatly within the traditional binary gender categories that are “man” and “woman”. Taking this difference into account, it is interesting to note that, according to the Williams Institute at the University of California Los Angeles, while the transgender population is currently estimated at 0.58 percent of the population in the United States, the percentage of the population who identifies to some degree of gender non-conforming is much higher – as high as 27% among teenagers. The Williams Institute states that there is a likelihood that the number of people identifying as gender non-conforming will likely increase as the subject becomes less taboo and more people start using the label. This would explain why more young people identify as gender non-conforming. This data has limitations, however. This number is based on a self-categorization of respondents in different categories ranging from “very feminine” to “very masculine”. This gives us an idea of how many people depart from to various extents from standards of gender expression, which is different from gender identity, which is the intrinsic sense that one is a man, a woman, both, or neither. Hence this data does not indicate how many people live with gender dysphoria and might therefore be transgender.

  1. Esther Meerwijk and Jae M Sevelius, “Transgender Population Size in the United States: a Meta-Regression of Population-Based Probability Samples” (2017) 107:2 Am J Public Health e1, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5227946/>.
  2. Bianca DM Wilson et al, Characteristics and Mental Health of Gender Nonconforming Adolescents in California: Findings from the 2015-2016 California Interview Survey, (Los Angeles: The Williams Institute and UCLA Center for Health Policy Research, 2017).
  3. MB Deutsch, “Making It Count: Improving Estimates of the Size of Transgender and Gender Nonconforming Populations” (2016) 3:3 LGBT Health 181 online: <https://www.ncbi.nlm.nih.gov/pubmed/27135657>.
  4. Christina Richards et al, “Non-binary or genderqueer genders” (2016) 28:1 Int Rev Psychiatry 95, online: <https://www.tandfonline.com/doi/pdf/10.3109/09540261.2015.1106446?needAccess=true>.
  5. Chassitty N Fiani and Heather J Han, “Navigating identity: Experiences of binary and non-binary transgender and gender non-conforming (TGNC) adults” (2018) Int J Transgenderism, online: <https://www-tandfonline-com/doi/full/10.1080/15532739.2018.1426074>.
  6. Andrew R Flores et al, “How Many Adults Identify as Transgender in the United States?” (Los Angeles: The Williams Institute, 2016), online: <http://williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf>.

Discrimination against gender non-conforming people has been documented in various fields, notably, in employment, healthcare, or education. As stated above, the problem with studying discrimination within various social arenas is that discrimination, rather than being overt, is often camouflaged through innocuous acts. There would be high value if more research were done in these areas, allowing for action to be taken at a grassroots level.

  1. Daphna Stroumsa, “The State of Transgender Health Care: Policy, Law, and Medical Frameworks” (2014) 104:3 Am J Public Health e31, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3953767/>.
  2. Albert Joseph et al, “Gender identity and the management of the transgender patient: a guide for non-specialists” (2017) 110:4 J R Soc Med 144, online: <https://www.ncbi.nlm.nih.gov/pubmed/28382847>.
  3. Gilbert Gonzales and Carrie Henning-Smith, “Barriers to Care Among Transgender and Gender Nonconforming Adults” (2017) 95:4 Milbank Q 726, online: <https://www.ncbi.nlm.nih.gov/pubmed/29226450>.
  4. G Nicole Rider et al.,“Health and Care Utilization of Transgender and Gender Nonconforming Youth: A Population-Based Study” (2018) 141:3 Pediatrics 1 <http://pediatrics.aappublications.org/content/pediatrics/early/2018/02/01/peds.2017-1683.full.pdf>.
  5. Jaclyn M White Hughto, Sari L Reisner and John E Pachankis, “Transgender Stigma and Health: A Critical Review of Stigma Determinants, Mechanisms, and Interventions” (2015) 147 Soc Sci Med 222, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4689648/>.
  6. Anne Boland, “God of the hinge: treating LGBTQIA patients” (2017) 62:5 J Analytical Psychology 688.
  7. Skylar Davidson and Jamie Halsall, “Gender inequality: Nonbinary transgender people in the workplace” (2016) 2:1 Cogent Soc Sci, online: <https://www-tandfonline-com/doi/full/10.1080/23311886.2016.1236511>.

 

There has been much debate in academia in recent years, first, about the role of “unconscious” or “implicit” bias in the treatment of certain marginalized groups by state institutions and their agents. Originally used to attempt determining the existence of racial bias in the treatment of African-Americans by the criminal justice system, the implicit-association test has been used more recently to consider the existence of gender bias and accessorily, bias towards gender non-conforming. Many academics have criticized this method as too imprecise and possibly dangerous, since it is akin “attempting to read into a person’s mind”. With the standard in criminal trials being that of proof beyond a reasonable doubt, much skepticism has been expressed with regards to the test’s capacity to prove the existence of an accused’s guilty mind. Moreover, in these cases, due process naturally limits the usefulness of these tests. While, they might show the existence of bias in a person, this does not mean the alleged bias was the main impetus behind an action. However, in civil cases, notably, discrimination cases, where the burden of proof is on a balance of probabilities (meaning that the plaintiff’s case must be more probable than improbable), the test could be used as one element out of many to bolster one’s case. The Courts have already had to tackle the question of bias from a presiding judge. Nevertheless, Implicit Association tests, to our knowledge, have never been used to rule on a case as of yet in Canada.

  1. Kelly Capatosto et al., State of the Science: Implicit Bias Review (Columbus: Kirwan Institute for the Study of Race and Ethnicity, 2017).
  2. John T Jost et al., “The existence of implicit bias is beyond reasonable doubt: A refutation of ideological and methodological objections and executive summary of ten studies that no manager should ignore” (2009) 29 R Organ Behav 39, online: <https://www.sciencedirect.com/science/article/pii/S0191308509000239>.
  3. Brian A Nosek, Carlee Beth Hawkins and Rebecca S Frazier, “Implicit social cognition: from measures to mechanisms” (2011) 15:4 Trends Cogn Sci 152, online: <https://www.sciencedirect.com/science/article/pii/S1364661311000167>.
  4. FL Oswald et al., “Predicting Ethnic and Racial Discrimination: A Meta-Analysis of IAT Criterion Studies” (2013) 105 J Personality & Soc Psych 171.
  5. Gregory Mitchell & Philip E. Tetlock, “Antidiscrimination Law and the Perils of Mindreading” (2006) 67 Ohio State LJ 1023.
  6. Miguel C Brendl, Arthur B Marksman & Claude Messmer, How Do Indirect Measures of Evaluation Work? Evaluating the Inference of Prejudice in the Implicit Association Test, (2001) 81 J Personality & Soc Psych 760.

 

Finally, support for transgender people is vital. Suicide attempts and very high levels of social anxiety are known to be prevalent among gender non-conforming individuals. Support from one’s family and entourage can therefore be of great help. However, change on the societal level seems to be required. Many studies have been conducted on the subject. Nevertheless, more research can be done into the specific factors that lead to the diminution. Additionally, although so-called gender affirmation therapies, including reassignment surgeries and hormonal treatments are generally associated with mental health benefits and diminution of dysphoria, suicide rates for transgender individuals remain very high, which indicates that other factors have a major effect on their overall well-being. More research needs to be done to identify these factors.

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To conclude, advances in our understanding of gender identity are forcing a reconceptualization of what it means to be a man or a woman. While these paradigms are not likely to disappear in the near future, they are certainly being mitigated and diluted as gender non-conformity becomes more prevalent and recognized. Laws and institutions that for centuries have acknowledged man and woman as the essential biological duality in humans need to be changed accordingly. The door  to further dialogue on these questions should be open, to encourage self-education and understanding of the various complex ideas and concepts at issue. Hopefully, the sources provided here as well as other analyses on the TalkRights blog can hope further this discussion.