Draft Legislation submitted to Elections BC
Draft Bill – revised on September 25, 2019
Title of Draft Legislation:
Initiative for Human Rights Code to protect Adult Gender Identity
Preamble:
Whereas people who feel distress due to a mismatch between their gender identity and their biological sex as determined by their genitalia at birth have been classified by the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatry Association as suffering from gender dysphoria, which is not the same as gender nonconformity.
And whereas the vast majority of children who experience gender dysphoria grow out of this mental illness by the time they enter adulthood;
And whereas gender dysphoria in children is another matter of parental responsibility, except for provisions of the Infants Act, together with their family doctor aligned with paediatric psychiatrists, paediatric surgeons and paediatric pharmacology professionals;
And whereas gender dysphoria and the protected class of “gender identity and expression” are both related to concept of gender fluidity, that one’s gender and sense of self can be changed by individual choice;
And whereas the concept of gender fluidity is still controversial;
And whereas experimentation in treating gender dysphoria should be practised on adults only due to the permanent nature of the surgical and pharmacological treatments currently in use;
And whereas it is usually adults who are protected by the Human Rights Code, for example the BC Human Rights Tribunal Annual Report for 2018/2019 counted 720 complaints, or 61% of all complaints in that 12-month period, that had been filed under Section 13 – Employment;
And whereas the protected class of “age” unequivocally protects adults only since “age” is defined in the Code as “an age of 19 years or more”;
And whereas the protected class “gender identity and expression” has been applied, since its addition to the Human Rights Code on July 25, 2016, primarily to children in K-12 schools and children in public library reading events;
And whereas adding the word “adult” to the protected class “gender identity and expression” would help to clarify that the renamed protected class of “adult gender identity and expression” is also in line with a fundamental purpose of the Human Rights Code to protect adults from improper discriminatory actions;
And whereas the renamed protected class “adult gender identity and expression” would be shown in each of the Code’s social areas – publication / accommodation, service and facility / purchase of property / tenancy premises / employment advertisements / wages and employment – for completeness;
And whereas the addition of the word “adult” focuses this protected class on adults only and thus would help to recognize that the protection of children is the natural jurisdiction of their parents;
And whereas the 1996 BC Recall and Initiative Act establishes a framework for registered voters to propose a new provincial law or changes to an existing provincial law;
And whereas a successful initiative petition may result in an initiative vote;
And whereas the purpose of this act is to add the word “adult” to section 1 and to sections 7 through 14 of the Human Rights Code.
Therefore Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia enacts as follows:
Revise the BC Human Rights Code by adding the words highlighted with a yellow background:
Section 1 – Interpretation:
“adult” means an age of 19 years or more;
Section 7 – Discriminatory publication
(1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or
(b) is likely to expose a person or a group or class of persons to hatred or contempt because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, adult gender identity or expression, or age of that person or that group or class of persons.
(2) Subsection (1) does not apply to a private communication, a communication intended to be private or a communication related to an activity otherwise permitted by this Code.
Section 8 – Discrimination in accommodation, service and facility
(1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, adult gender identity or expression, or age of that person or class of persons.
(2) A person does not contravene this section by discriminating
(a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or
(b on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.
Section 9 – Discrimination in purchase of property
A person must not
(a) deny to a person or class of persons the opportunity to purchase a commercial unit or dwelling unit that is in any way represented as being available for sale,
(b) deny to a person or class of persons the opportunity to acquire land or an interest in land, or
(c) discriminate against a person or class of persons regarding a term or condition of the purchase or other acquisition of a commercial unit, dwelling unit, land or interest in land because of the race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, sex, sexual orientation, or adult gender identity or expression of that person or class of persons.
Section 10 – Discrimination in tenancy premises
(1) A person must not
(a) deny to a person or class of persons the right to occupy, as a tenant, space that is represented as being available for occupancy by a tenant, or
(b) discriminate against a person or class of persons regarding a term or condition of the tenancy of the space, because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, adult gender identity or expression, age or lawful source of income of that person or class of persons, or of any other person or class of persons.
(2) Subsection (1) does not apply in the following circumstances:
(a) if the space is to be occupied by another person who is to share, with the person making the representation, the use of any sleeping, bathroom or cooking facilities in the space;
(b) as it relates to family status or age,
(i) if the space is a rental unit in residential premises in which every rental unit is reserved for rental to a person who has reached 55 years of age or to 2 or more persons, at least one of whom has reached 55 years of age, or
(ii) a rental unit in a prescribed class of residential premises;
(c) as it relates to physical or mental disability, if
(i) the space is a rental unit in residential premises,
(ii) the rental unit and the residential premises of which the rental unit forms part,
(A) are designed to accommodate persons with disabilities, and
(B )conform to the prescribed standards, and
(iii) the rental unit is offered for rent exclusively to a person with a disability or to 2 or more persons, at least one of whom has a physical or mental disability.
11 – Discrimination in employment advertisements
A person must not publish or cause to be published an advertisement in connection with employment or prospective employment that expresses a limitation, specification or preference as to race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, adult gender identity or expression, or age unless the limitation, specification or preference is based on a bona fide occupational requirement.
Section 12 – Discrimination in wages
(1) An employer must not discriminate between employees by employing an employee of one sex for work at a rate of pay that is less than the rate of pay at which an employee of the other sex is employed by that employer for similar or substantially similar work.
(2) For the purposes of subsection (1), the concept of skill, effort and responsibility must, subject to factors in respect of pay rates such as seniority systems, merit systems and systems that measure earnings by quantity or quality of production, be used to determine what is similar or substantially similar work.
(3) A difference in the rate of pay between employees of different sexes based on a factor other than sex does not constitute a failure to comply with this section if the factor on which the difference is based would reasonably justify the difference.
(4) An employer must not reduce the rate of pay of an employee in order to comply with this section.
(5) If an employee is paid less than the rate of pay to which the employee is entitled under this section, the employee is entitled to recover from the employer, by action, the difference between the amount paid and the amount to which the employee is entitled, together with the costs, but
(a) the action must be commenced no later than 12 months from the termination of the employee’s services, and
(b) the action applies only to wages of an employee during the 12 month period immediately before the earlier of the date of the employee’s termination or the commencement of the action.
Section 13 – Discrimination in employment
(1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, adult gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
(2) An employment agency must not refuse to refer a person for employment for any reason mentioned in subsection (1).
(3) Subsection (1) does not apply
(a) as it relates to age, to a bona fide scheme based on seniority, or
(b) as it relates to marital status, physical or mental disability, sex or age, to the operation of a bona fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employer.
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
Section 14 – Discrimination by unions and associations
A trade union, employers’ organization or occupational association must not
(a) exclude any person from membership,
(b) expel or suspend any member, or
(c) discriminate against any person or member because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, adult gender identity or expression, or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.
Final Section
The Act comes into force on the date of Royal Assent.