In Canada, transphobic rhetoric has influenced provincial policies of New Brunswick and Saskatchewan along with Canada’s Opposition Party. Several other provinces and political parties are discussing implementing similar legislation. Such transphobic rhetoric and policy is evidence of genocide. 

Genocide has five elements in international law under the Convention on the Prevention and Punishment of the Crime of Genocide. Any one of the five in action would meet the definition of genocide. If gender was included as a category, then the Governments of Saskatchewan and New Brunswick are in violation of international law. These elements include:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated

to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

The definition is limiting because it only applies to a national, ethnic, racial or religious group and fails to include gender despite widespread discrimination that has similar effects on transgender peoples. Throughout this article, I will point out how genocide is still ongoing in Canada, and how transphobic policies violate international as well as national law. The absence of gender as a category of genocide in international law demonstrates political choices made in absence of gender diverse peoples.

Colonialism

There are also impacts on First Nations which recognize Two Spirit and gender diverse identities. The ongoing colonial project of Canada has devastating impacts on Indigenous peoples, and, in particular, on Indigenous conceptions of gender and or sexuality. For Example, in the National Inquiry into Missing and Murdered Indigenous Women and Girls Viola Thoma said:

 “We also really need to address the homophobia within Indigenous communities. And I’ve witnessed so many of my dear friends who are Two-Spirited in the Downtown Eastside, you know, how they’ve shared – they would never ever – if they ever died, they would always tell me, “Don’t ever bury me back home in my community because of how I’ve been treated because of who I am.”

This quote shows that colonial values are often internalized, adversely impacting Two-Spirit, queer and gender-variant Indigenous people.

In addition to this, the Assembly of First Nations interim National Chief Joanna Bernard said in a press release AFN and AFN 2SLGBTQQIA+ Council Condemns Pronoun Use Policy in Schools:

“This policy [pronoun policies in Saskatchewan and New Brunswick] conflicts with our cultural norms and does not align with the principles of self-determination and identity that are vital to the health and well-being of First Nations in Canada. Further, this policy puts 2SLGBTQQIA+ youth in danger of being outed in unsupportive environments or being misgendered at school, both of which can have harmful consequences.”

The Federation of Sovereign Indigenous Nations made a similar statement on X, formerly known as Twitter, where they said, “this man made policy infringes on the rights of our people and their autonomy. Our Nations have always had Two Spirit LGBTQ+ people.”

It is within reason to make a legal argument that colonial, anti-Indigenous, and transphobic policies violate the

Convention on the Prevention and Punishment of the Crime of Genocide due to the danger placed on 2SLGBTQQIA+ gender diverse kids.

the harmful rhetoric of “Parents’ Rights”

The Article Transgender and Sexual Identities: The Next Strange Fruit goes into detail into how violence against transgender people globally meets the definition of genocide and argues that the current international definition is heterosexist and hetronormative because there is a clear violation of article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide – if gender was included in the definition. 

One of the influences of this transphobia is the “Parents’ Rights” movement, in which some parents are asking that kids require permission to identify how they choose in terms of names or pronouns. This imposes authority on parents over their kids’ autonomy. This rhetoric isn’t new. In 1978, “Parents’ Rights” were used to ban gay and Lesbian teachers. Samatha Godwin in Children’s Oppression rights, and Liberation from issue 1 of No! Against Adult Supremacy makes the case that the subordination of children to adults and their parents is similar to dominance of white oppressors over Black people, and men over women, given the paternalistic and infantilizing beliefs that position white people and men superior to Black people and women respectively. This same reasoning is being used to oppress kids, specifically transgender and non-binary kids. Godwin also says that “there is no fixed adult level of brain development…” The Mayo clinic says that most kids can label their own gender by age 3. In chapter two of Chasing Rainbows called Get your gender binary off my childhood, Jane Ward shared media stories including of Molly in the New York Magazine who was assigned male at birth and shared that she identifies as a girl starting at age 3. 

Saskatchewan and New Brunswick mark 16 as the age when the government feels parents no longer need to be the authority on children’s gender. This denies the choice children have in when and where they disclose their identity, which is their right. In issue 6 of No! Against Adult Supremacy, the article called Criminalizing Gender Nonconforming Youth points out that if a gender diverse kid is disowned and becomes unhoused, they are unsafe in many programs meant to keep youth off streets. In addition, they are often involved in the criminal justice system as a result of being treated as disposable because of their identity:

“Gay and transgender youth represent up to 40 percent of the homeless youth population even though they only compose 5 percent to 7 percent of the youth population overall, and 39 percent of homeless gay and transgender youth report being involved in the juvenile justice system at some level.”

The overrepresentation of people who are gender diverse and members of the 2SLGBTQIA+ population as quoted in the article is further evidence that gender diverse kids will be further harmed as a result of transphobic legislation. 

Policies 713 of New Brunswick and Saskatchewan’s “Use of Preferred First Name and Pronouns by Students”, now “The Education Act, 1995 respecting parental rights” are legislating that kids must seek parental consent prior to using a different gender or name. This is a violation of The United Nations Convention on the Rights of the Child. 

The Saskatchewan Advocate for Children and Youth lists the violations which include the following rights for children: 

• “Not to be discriminated against on the basis of gender identity and expression
• to have their best interests given primary consideration in decisions that affect them
• to be heard and have their opinions given due consideration;
• to receive and benefit from an education;
• to have and maintain their own identity;
• to free expression;
• to privacy;
• to be free from violence and harm; and potentially even,
• their right to life and survival.”

Some of these rights are further protected under the Canadian Charter of Rights and Freedoms such as freedom of expression and the right to life liberty and security. 

The advocate writes, “…the Supreme Court has concluded that the blanket restriction of a young person under the age of 16 from making their own health decisions – without being given the opportunity to demonstrate capacity – is arbitrary and amounts to an unconstitutional “deprivation of liberty and security of the person.”” This supports Godwin’s argument that kids are being oppressed based on characteristics that are discriminatory when used on other groups of people. 

The advocate says, “The very same children who are denied their self-identity at home are therefore also denied their identity at school. In this way, the most vulnerable transgender students are further marginalized by the policy.” They further point out that there is an increased risk of suicide of transgender kids who do not gain consent to share their identity with their parents. 

UR Pride Centre for Sexuality and Gender Diversity challenged Saskatchewan’s policy. Dr. Salway provided an opinion in paragraph 77 from the challenge which says “…it is not surprising that 2SLGBTQ youth who experience identity invalidation suffer an elevated burden of suicide-related outcomes”. This statement, along with expertize from the American Psychiatric Association, provides evidence that the Government of Saskatchewan is deliberately inflicting conditions that would bring about the destruction of transgender and gender non confirming youth who don’t have parental consent to explore their identities as a result of increased violence and suicide.

In paragraph 76 of the injection request, Dr. Salway links identity invalidation to “psychological harm”, which includes depression, anxiety and suicide. Later in the injunction, Dr. Salway points to positive mental health outcomes when schools affirm kids’ gender identities. 

Dr. Travers in paragraph 81 says:

“Deadnaming and misgendering by teachers harms already vulnerable kids. Public health literature outlines multiple significant psychological and other health-related harms that may occur if a trans student is unable to use their chosen name or pronouns…”

The American Psychiatric Association says that “Transgender individuals are at higher risk of victimization and hate crimes than the general public. Suicide rates among transgender people are markedly higher than the general population.” 

Justice Megaw in paragraph 98 said:

“I am satisfied that those individuals affected by this Policy, youth under the age of 16 who are unable to have their name, pronouns, gender diversity, or gender identity, observed in the school will suffer irreparable harm.”

The evidence in the injunction clearly demonstrates that there is mental harm and is likely to increase the risk of death via suicide. There is also evidence of direct violence. For example, Dr. Travers says in paragraph 81:

“Several trans kids that I interviewed, or whose parents I interviewed, in the course of my work experienced verbal abuse, threats of violence, and physical violence at school that made it impossible for them to continue attending, either temporarily or indefinitely.”

Dr. Saewyc gives further evidence in paragraph 84:

“Almost 25% of trans and nonbinary youth reported they did not feel safe at home;… for the Prairie provinces, more than 1 in 3 younger youth (14-18) sometimes or rarely felt safe at home, diverse youth, including youth as young as 12 in BC and as young as 14 in the data from Saskatchewan, unfortunately contradict the assumption that all parents are safe and must give consent for gender diverse young people to have their identity supported at school.”

After an injunction was granted and reports from multiple child advocates the Government of Saskatchewan introduced Bill 137 An Act to amend The Education Act, 1995 respecting parental rights which uses the notwithstanding clause. The bill passed after an “emergency“ recall of the house and the rules for debate were limited and shortened. 

Section 197.4(1) of the legislation Bill 137 says: 

“If a pupil who is under 16 years of age requests that the pupil’s new gender-related preferred name or gender identity be used at school, the pupil’s teachers and other employees of the school shall not use the new gender-related preferred name or gender identity unless consent is first obtained from the pupil’s parent or guardian.”

This would result in lower mental health outcomes for students who may be misgendered. Even if there is a concern about the safety of kids regarding their parents, section 197.4(2) says: 

“If it is reasonably expected that obtaining parental consent as mentioned in subsection (1) is likely to result in physical, mental or emotional harm to the pupil, the principal shall direct the pupil to the appropriate professionals, who are employed or retained by the school, to support and assist the pupil in developing a plan to address the pupil’s request with the pupil’s parent or guardian.”

Even in the event of physical harm, kids will be required to seek parental consent. This is a clear disregard for the safety and autonomy of kids. Section 197.4(3) takes away rights mentioned in sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms. These rights include freedom of thought, belief and expression. Section 7 involves the right to life and liberty and section 15 includes the right to not be discriminated against based on sexual identity. It is understood that gender is included although gender and sex are separate concepts.

Who defines genocide?

International law does not include gender identity, which means that gender identity is incorrectly excluded as a factor of genocide. Section 318 of the Canadian Criminal Code, “advocating genocide,” only includes two of five acts of genocide as mentioned in international law. In Canadian law, gender identity is in the list of protected identities along with race, religion and sex. Given the limitations to both international and Canadian definitions of genocide, in Canada, gender is only a factor of genocide when it comes to the following two elements:

• killing members of the group; or
• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

This means the following three elements of genocide are not included in Canadian law: 

• Causing serious bodily or mental harm to members of the group;
• Imposing measures intended to prevent births within the group;
• Forcibly transferring children of the group to another group.

The exclusion of the above three elements of genocide in Canadian law demonstrates that what counts as genocide is based on political decisions and not human rights for everyone. A violation of any one element of genocide is genocide. It’s essential to note that Canada’s definition of genocide deliberately omits three elements that it carries out as part of its own colonial project.

We should accept that the government is aware of increased suicides and violence due to transphobia, as this evidence was presented in multiple court cases and from non governmental organizations. Despite this, multiple Premiers have advocated for similar policies and or are moving ahead with the polices. Scott Moe is moving ahead with the notwithstanding clause while recalling the legislature on October 10 2023 for this purpose. Canadian Opposition leader Pierre Polivre on X , formerly Twitter, shared a post indicating that parents are being attacked when it is pointed out that some parents may be unsafe. 

On October 12 2023 MLA Sarauer of the NDP said:

“If two-thirds of the transgender and/or nonbinary youth surveyed across the province reported having self-harmed or seriously considered suicide, Mr. Deputy Speaker, was this government’s response to that jumping into action? Creating a comprehensive, serious mental health strategy in this province? Particularly paying attention to the most vulnerable people, most vulnerable youth in our province? Nope. You see them recalling the sitting, ripping up the rule book, so they can ram through this policy.”

Genocide is also defined in the Crimes Against Humanity and War Crimes Act  which says:

“Genocide means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.”

In New Brunswick, Premier Higgs proposed similar changes in policy 713 which would now require schools to misgender and deadname students where parents were not informed. This policy change is transphobic and endangers kids’ lives especially when there are unsupportive parents. Egale Canada said “Outing 2SLGBTQI students… is unconscionable” and “ …youth in New Brunswick will see the … policy review… [for] what it is: Their government failing to protect them from hate movements.” 

The Public Service Alliance of Canada said “57% of transgender Ontarians have avoided using public washrooms when they needed to go for fear of harassment.” The organization also talked about negative health impacts as a result of not using a washroom. Jay Jonah who wrote Trans Youth and the Right to Access Public Washrooms referenced a survey of Canadian high schools which revealed that 90% of trans youth experienced transphobia or homophobia daily, and that the most unsafe areas are gender segregated, which may lead to higher risk of suicide. The deliberate omission of safe locations in schools and public buildings would also qualify as genocide. 

Moving Forward

There are things you can do to combat the rising transphobia in Canada such as following 2SLGBTQ+ individuals on social media, supporting National and local organizations such as Wisdon2action, Egale, Momentum and many more. Momentum has a petition calling for greater action to address rising hate and there is a White paper on the status of gender diverse people that has recommendations. On an individual level, if you are safe, it is important to call in friends and family and to call out public figures causing harm – including ones seeking votes. Substantial action from building relationships, community work that supports and empowers marginalized people is critical, along with showing up physically when gender diverse people are under threat. Under sections 55 and 56 of the Constitution Act, the Federal Government of Canada has the ability to disallow provincial legislation within two years. This means that the Federal Government can be held accountable for decisions provincial governments make. In addition, it is under Federal jurisdiction that international agreements are made. This also means that the Federal government can be pressured to use power of disallowance.

Written by Robert Gibson