Canada’s top court rules there are two genders in Supreme Court
Posted On July 28, 2021
A Canadian Supreme Court justice has ruled there are only two genders at the highest court in Canada.
In a case that has riveted the country, Justice Bruce Smith made the ruling Monday in a ruling that could make the Supreme Court a place where people feel comfortable talking about gender identity.
The Supreme Court has long allowed individuals to express their gender identities as a way to identify themselves, but Smith’s decision in the case of a trans woman and a man who were challenging the right of a woman to use the women’s bathroom was one of the first to allow gender-neutral bathrooms.
“The Canadian public’s desire to be treated equally by the government, by the courts, and by the police is at the core of our democracy,” Justice Smith said in his decision.
Smith’s decision comes as the country debates whether the country is ready to have the federal government allow transgender people to use women’s bathrooms and locker rooms, or whether it needs to go the way of North America and adopt a national mandate to allow transgender Canadians to use whichever restroom they feel comfortable in.
But Smith’s ruling, which came after two other Supreme Court judges made similar decisions, is notable for its specificity, including specifically noting that gender is “a social construct, not an immutable physical characteristic” and that transgender Canadians are entitled to the same legal protections as cisgender people.
“The Court has a duty to respect the individual’s right to gender identity and expression,” Smith said.
Smith also noted that “there is no evidence that the facility is used by more than one gender,” noting that the Supreme House of Commons passed a motion last year that would allow transgender women to use a single women’s restroom. “
It is therefore the Court’s belief that a single-gender toilet facility is not a reasonable accommodation, and therefore, the need to accommodate the privacy interests of a transgender individual is outweighed by the public interest in protecting the public health and safety of Canadians.”
Smith also noted that “there is no evidence that the facility is used by more than one gender,” noting that the Supreme House of Commons passed a motion last year that would allow transgender women to use a single women’s restroom.
As CBC News has previously reported, Canada’s House of Assembly passed a resolution that would amend the Criminal Code to include gender identity in the definition of sexual assault.
The bill has stalled in the Senate, with only three senators supporting it and all three abstaining.
A spokesperson for the House of Representatives did not immediately respond to a request for comment.