TRANSGENDER
HUMAN RIGHTS
Members of the transgender community say recognizing their rights goes beyond raising a Pride flag.
The Pride flag flying at the Saskatchewan legislature is a positive symbol of human rights for many people, but others see it as hypocritical.
Some in the transgender community argue the province doesn’t recognize their rights in the Saskatchewan Human Rights Code, which does not specifically mention gender expression or identity as categories for protection from discrimination.
“Saskatchewan has always been a leader in human rights legislation and now it’s a follower,” said Mikayla Schultz, president of TransSask Support Services.
The Saskatchewan Human Rights Commission and Attorney General argue the code does protect transgender people even without specific mention of gender identity and expression. Case law across Canada has determined transgender people are protected under human rights legislation, said Chief Commissioner David Arnot.
“We have the benefit of the broadest interpretation (of the code) right now,” Arnot said. “If it isn’t broken, don’t fix it. And the law is not broken. I can say with a 100 per cent guarantee, there are no exclusions.”
But the lack of legal precedent in Saskatchewan still worries Schultz.
“We don’t have specific protection,” she said in an interview from Regina, adding the commission relies on the phrase “sex means gender,” while many in the transgender community feel it means two different things.
When Saskatoon resident Miki Mappin saw Premier Brad Wall’s tweet about raising the Pride flag during the Winter Olympics, she could only recall how the government ignored a petition submitted last November to get gender expression and gender identity included in the code.
“I saw (the tweet) and got kind of angry,” she said. “I do believe he sincerely believes the province is doing what it can. But on the other hand, I’m pretty sure politicians in Russia believe they are well-meaning.”
Mappin knows firsthand the difficulty of arguing for rights as a transgender person in Saskatchewan.
She said she was terminated without cause in 2011 from a job she’d held since 2002, after coming out as transgender and wearing women’s clothes, which led to harassment from fellow employees. She was offered compensation with a gag order that would prevent her from talking about the situation.
She filed a complaint with the commission, but because her situation did not fall under the category of “sex” or “sexual orientation,” even her lawyer suggested she accept the compensation from her employer or risk losing her case.
The commission maintains transgender people are protected under the “sex” and “sexual orientation” categories, but Mappin said she’s worried that might not stand when tested in court.
“Let’s just clean up our own backyard,” Mappin said. “They’re flying the LGBT flag — the last letter is for ‘transgender.’ ”
Arnot said the commission has successfully mediated complaints based on transgender discrimination, most recently a case in which the commission found a Saskatoon bridal shop had “infringed Section 12 of The Saskatchewan Human Rights Code by denying a transgender woman service.”
There is no reason to amend the code prematurely without having a court’s definition of the phrases “gender identity” and “gender expression,” Arnot said.
“The chance of a judge looking at our code and case law and saying it was not the intention of the legislation in Saskatchewan to protect transgender people would be as remote as you could possibly get,” Arnot said.
NDP MLA David Forbes raised the issue in the legislature during question period on Nov. 20, after presenting the petition asking for changes to the code. He asked Justice Minister and Attorney General Gord Wyant if he planned to act on the petition.
Wyant said the current code is sufficient, according to opinions sought from the Justice ministry and the commission.
“In their opinion, the wording does protect against discrimination with respect to the particular group,” Wyant said.
Forbes then pointed out that other provinces, such as Nova Scotia, Ontario and Alberta, offer specific protection from discrimination based on gender identity and expression, but Wyant reiterated his support for the status quo.