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The Supreme Court of Canada took a vital step

On May 19, a somewhat innocuous seeming case made it way to the Supreme Court of Canada and the positive ramifications for trans rights in Canada are huge.

The Hansman v. Neufeld case stems from an appeal from British Columbia on an anti-SLAPP motion. In this case, Neufeld sued Hansman for defamation because Hansman referred to Neufeld's anti-SOGI comments in school settings as being hateful (an accurate statement). In this case, the Supreme Court upheld the dismissal of the defamation case and, in so doing, made an important notice that the right to label anti-trans commentary for what it is must be protected.

It goes further, though, and this is why it is so very vital:

[88] In the wake of this legislative progress, judicial recognition of the plight of transgender individuals in Canada is growing (see XY, at para. 164; see also Oger, at para. 62; Vanderputten v. Seydaco Packaging Corp. (No. 1), 2012 HRTO 1977, 75 C.H.R.R. D/317, at para. 61; JY v. Mint Tanning Lounge, 2018 BCHRT 282, at para. 32 (CanLII); J.Y. v. Various Waxing Salons, 2019 BCHRT 106, 94 C.H.R.R. D/11, at para. 33; X v. Hot Mess Salon, 2019 BCHRT 24, at para. 11 (CanLII); T.A. v. Manitoba (Justice), 2019 MBHR 12, at para. 24 (CanLII); A.B. v. Correctional Service Canada, 2022 CHRT 15, at para. 41 (CanLII)). And in 2021, the Superior Court of Quebec held that “[g]ender identity is analogous to the grounds listed at s. 15(1) of the Canadian Charter” because “[g]ender identity is an immutable personal characteristic” (Centre for Gender Advocacy v. Attorney General of Quebec, 2021 QCCS 191, 481 C.R.R. (2d) 273, at paras. 104 and 106).

This is a very powerful signal from the Supreme Court that the trans identity is protected by the Canadian Charter of Rights & Freedom. Why is this important? Any legislative attempt to restrict the rights of trans people would be forced to invoke the infamous "Notwithstanding Clause" to bypass this protection, a clear signal of discrimination in that event, and that puts a sunset on any such law, forcing a review every 5 years. 

So, while not perfect, this just moved the bar higher to get over if a government in Canada sought to restrict trans rights. Not impossible, obviously, but nevertheless a victory for us on the eve of Pride Month.


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