National Post Barbara Kay: Why won’t the Liberal government make its Gender Based Analysis public?

National Post - Thursday January 16th, 2020

Prime Minister Justin Trudeau attends a memorial service at the University of Alberta for the victims of Ukraine International Airlines Flight 752, on Jan. 12, 2020. The government has denied requests for release of its Gender Based Analysis.

Our prime minister is a proud feminist, a zealous champion in the protection of women’s rights. With that objective in mind, Justin Trudeau decreed early in his tenure that all new policies by his government would thenceforth include a Gender Based Analysis (GBA) to assess their impact on women.

Bill C-16, informally known as the “Transgender Rights Bill,” was proposed in the summer of 2016 and rushed to passage in May 2017. C-16 added the terms “gender identity” and “gender expression” to the Canadian Human Rights Act and to our Criminal Code. It wasn’t long before sharp-eyed observers expressed strong misgivings about C-16’s shortcomings and potential for harm to biological women.

Sen. Linda Frum got to the heart of the problem in a June 2017 Toronto Sun op-ed, “The big problem with Canada’s transgender rights bill.” She expressed her “fear that it will not create rights for the transgendered as much as it will take away rights from women and girls.” Importantly, she noted, “Bill C-16 does not provide explicit protections for the transgendered. Instead, it creates protections for “gender identity” and “gender expression”: vague concepts with no precise legal definitions.”

A Trans March is held in downtown Toronto on July 1, 2016. Ernest Doroszuk/Postmedia News

Exactly. And how prescient she was when she wrote, “It is guaranteed that it will be only a short matter of time before C-16 triggers litigation that will place a financial and legal burden on women who will need to prove that biological women (and transitioned transgendered women) have a right to women’s-only safe spaces and the right to sex-segregated activities,” citing abuse shelters, spas, women’s prisons and women’s sports teams. All of her predictions have come true.

Was no consideration given to these possibilities in the obligatory GBA? We don’t know, because nobody outside the government has been able to get their hands on it. A Quebec group, Pour les Droits des Femmes (For Women’s Rights) asked the government as early as November 2016 to release the GBA, but their request was denied.

A women’s rights activist who goes by the name of “Jennifer Anne” joined forces with Diane Guilbault of PDF to continue pressing the issue, pretty well full time over the past three years. She is now affiliated with, and supported by caWsbar — the recently launched Canadian Women’s Sex-based Rights — an advocacy organization whose objective is to challenge C-16 on Charter grounds. Ultimately, the entire report was redacted on grounds of “cabinet confidence.”

Diane Guilbault, president of Pour les Droits des femmes, is photographed in her home in Montreal on April 8, 2019. Allen McInnis/Postmedia News

It has been confirmed by caWsbar as I write that the Standing Committee on Human Rights and Justice committee was instructed just to rubber-stamp C-16 and not suggest any ways to improve the legislation.

So is there a GBA or not? It sounds like there isn’t any.

Last fall, Jennifer Anne created an e-petition demanding the release of the GBA.[5] She explained how an e-petition works (something I have never inquired into before). You are allowed 250 words, which you submit, endorsed by five Canadian citizens, to the House of Commons website. If it gets 500 signatures, it is reviewed, and then an MP takes it to the House of Commons for parliamentary response.

Sounds easy, but there’s a catch: You need to find that co-operative MP. OK, so you choose one — maybe your own MP or someone you have good reason to believe is sympathetic to your petition. She or he has 30 days to accept the role. If they don’t accept, they don’t have to actively decline; they can just let the deadline lapse. Then you need to ask another MP. You only get to ask five in all. If all five decline or keep mum, your e-petition fails.

Conservative MP Alain Rayes, seen during question period in the House of Commons on June 17, 2019, has been asked to champion an e-petition demanding the Liberal government release its Gender Based Analysis to the public. Adrian Wyld/The Canadian Press

This past Sunday was the deadline for MP Diane Finley, Jennifer Anne’s first choice, since she had voted against the bill. Finley did not accept. Jennifer Anne has moved on to Alain Rayes, who has until Feb. 11 to accept or decline. As you can see, the process is very slow, the petitioner has no leverage whatsoever, and there is a strong possibility of failure.

Moreover, especially given the sensitive nature of this particular issue, it would take unusual backbone in any MP to accept the role of intermediary. Imagine the social-media mobbing they might be subjected to, and the flak they might receive in caucus (according to Jennifer Anne, one MP told her that he would be “terrified” to do it). And since there is no downside to declining, the odds are stacked against the petitioner.

As I write, Jennifer Anne has just received yet another refusal from of an Access to Information request for the GBA report. There’s something very wrong here. C-16 is proving to be a hornet’s nest of colliding rights, and real women are suffering its stings. If the GBA was done in good faith, why can’t we see it? If in bad faith, it’s time we knew it.

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