Sex, Gender and the Charter

How gender ideology subverts language and law

Transgender activists in Canada who are campaigning to replace rights based on sex with rights based on gender identity face a major obstacle: sex based rights are explicitly protected in two places in the Charter of Rights and Freedoms.

Section 15 provides:

Equality before and under law and equal protection and benefit of law

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Sex is one of the enumerated protected categories and there is no reference to gender identity. The importance of sex as a protected category is reinforced by Section 28 which reads:

28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

The French version reads “les deux sexes” (two sexes), which is exactly the number of sexes people believed to exist in 1982 when the Charter was drafted.

A recent letter from LEAF and the Morgane Oger Foundation on transgender prison policy attempts to evade this problem by arguing that Bill C-16 has effectively replaced sex with gender identity. They refer to “the mistaken view that one’s biology or anatomy at birth is determinative of whether that person is a man or a woman.”

The problem with this line of argument is that the view that male and female are biologically determined is one that was almost universally accepted when the Charter was adopted. Changing the definition of sex to refer to something else is, in effect, an amendment to the Charter.

A decision of the Scottish Court of Session illustrates this principle. For Women Scotland Limited v. The Lord Advocate et al. was a challenge to a provision of a law dealing with gender representation on public boards which provided that:

“‘woman’ includes a person who has the protected characteristic of gender  reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.”

The legislative authority of the Scottish Parliament is subject to certain reserved matters which can be changed only by the Parliament of the United Kingdom. The Equality Act, 2010 is one of these reserved matters. The Equality Act includes both sex and gender reassignment as protected categories. The Court of Session found that the definition of woman, which combines aspects of both sex and gender reassignment, changed the definition of a protected characteristic under the Equality Act and was therefore outside the legislative competence of the Scottish Parliament.

The case is relevant in Canada because the Charter of Rights and Freedoms has the same relation to the both the federal and provincial legislatures as the Scotland Act has to the Scottish Parliament. Any federal or provincial legislation which contravenes the Charter is void. The Charter itself is part of the Constitution Act, 1982 and any amendment requires the approval of the House of Commons, the Senate and the legislatures of at least seven provinces representing at least 50 percent of the population.

In law, it is not permitted to do indirectly something that cannot be done directly. If Parliament and the provincial legislatures cannot adopt ordinary legislation which substitutes gender or gender identity for sex in Section 15 or 28 of the Charter, they cannot achieve the same result by re-defining sex to mean the same thing as gender identity.

The Charter is, of course, subject to interpretation and Canadian courts have assumed wide latitude to interpret constitutional provisions to meet changing conditions. However, in order to apply more sophisticated tools of interpretation, you first need to show that there is some ambiguity or difficulty in application of the plain words of the law. There is no ambiguity around the word sex. The dictionary definitions are clear and consistent:

Collins Dictionary:

The two sexes are the two groups, male and female, into which people and animals are divided according to the function they have in producing young.

Merriam-Webster:

either of the two major forms of individuals that occur in many species and that are distinguished respectively as female or male especially on the basis of their reproductive organs and structures.

Cambridge Dictionary:

the state of being either male or female

This is a more comprehensive scientific definition of sex from a Scientific Statement by the Endocrine Society:

The classical biological definition of the 2 sexes is that females have ovaries and make larger female gametes (eggs), whereas males have testes and make smaller male gametes (sperm); the 2 gametes fertilize to form the zygote, which has the potential to become a new individual. The advantage of this simple definition is first that it can be applied universally to any species of sexually reproducing organism.

There is also no difficulty in the application of the definition. It is possible to determine sex at birth by simple inspection of the external reproductive organs with over 99.98% accuracy. The sex of the remaining 0.02% can generally be determined shortly after birth using ultrasound and genetic testing. There are a few congenital conditions of sexual development where there is debate (sometime very acrimonious) over whether an individual is male or female. However, this debate has nothing to do with the basic definition of sex and even less to with gender identity.

If you apply a purpose based analysis to the term sex it simply reinforces the definition of sex as reproductive role. Sex was included in the Charter and human rights legislation primarily to rectify the disadvantages suffered by women and girls. These disadvantages are directly rooted in reproductive biology.

Female bodies have evolved to support the bearing of children this has required compromise in bone structure and body composition. Women are, on average, smaller, weaker, and slower than men. This makes them vulnerable to male violence and gives men an insurmountable advantage in most sporting events. The responsibilities of child-bearing, which fall exclusively on women, and child-rearing, which is still fall mainly on women, put women at a disadvantage in the workplace. Sex segregated spaces, women’s sports and reserved positions for women were all created to compensate for these disadvantages.

This connection between sex and reproductive capacity is recognized in provisions such as subsection 10(2) of the Ontario Human Rights Code which states “The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.”

The grounds of discrimination enumerated in Section 15 of the Charter are not exclusive. The courts can add new prohibited grounds of discrimination by applying the doctrine of analogous grounds. An analogous grounds of discrimination is a personal characteristic, other than one of the enumerated grounds, that has been the basis for stereotypical decision making and discrimination. It must be something that an individual cannot change or can be changed only at an unacceptable cost. The courts have found that sexual orientation is protected under the Charter as an analogous ground and there would be no problem in adding gender identity or transgender status.

However, an analogous ground like gender identity cannot replace an enumerate ground such as sex. Transgender people do suffer from discrimination but the sources and effects of this discrimination are different from the discrimination women suffer on the basis of sex. Rights based on gender identity and rights based on sex can come into conflict and need to be balanced against each other. This is what activists like Oger want to avoid and the only way they can do it is to redefine the term sex out of existence.

The process by which this is happening is disturbing. When the Charter was first adopted it was widely debated in Parliament, the academic world and the media. The debate built in concepts of human rights that reached back over 200 years and were widely familiar.  Gender identity emerged only recently in obscure corners of academia. It has been promoted through a process which deliberately seeks to avoid public debate.

A letter from the Canadian Bar Association, which Oger and LEAF cite, shows how the debate is a sort of bait and switch process. The letter, signed by the chairs of the Criminal Justice Section and the Sexual Orientation and Gender Identity Community Section,  discusses the government policy on treatment of transgender inmates and cites CBA resolutions from 2016 and 2018.  Neither of these resolutions addresses the issue at hand. The 2016 resolution is about gender inclusive identity categories for CBA members. The 2018 resolution is simply a general statement about human rights violates against LGBTI2S people. At no time was the issue of placing male offenders in women’s prisons discussed or even acknowledged.

What we have is a situation where Charter rights, which were supposed to be protected from change except by an extensive national and public debate can be altered by an elite consensus reached in the obscure world of gender studies departments and committees of professional bodies. The langauge does not change but its meaning is redefined through a process insulated from public scrutiny and democratic accountability.

This is a problem that reaches beyond sex based rights. If the language in which rights are expressed is not stable and secure, then rights are not stable and secure. The recent debate on the Emergencies Act highlights the danger. The government extended the very restrictive definition of national emergency to cover a protest that amounted to nothing more than large scale parking and noise violations in downtown Ottawa. Carefully crafted safeguards for civil liberties are meaningless if the language in which they are expressed can simply be redefined to suit the government’s political needs.