On February 9th, 2011, Bill C-389, An Act to Amend the Canadian Human Rights Act and Criminal Code (gender identity and gender expression), passed third reading in Parliament, and moved on to the Senate, where it faces even more daunting challenges.

If you heard anything about the bill at all in the mainstream media, it was either from Charles McVety raising fears that legal protections for trans people would result in trans women using the ladies’ restroom and being a threat to his daughter (a claim which would go almost unchallenged), or the occasional maverick editorial supporting trans rights, but without any trans perspectives at all on what human rights inclusion would mean for them. This was not for lack of people willing to speak publicly on the issue, since a network of trans activists across the country had approached the major media outlets indicating a willingness to speak.

Potty fear has been a tactic from the far right that started being used in earnest in the US around 2008 to oppose any form of human rights inclusion for trans people, and also used to oppose any gains made by the lesbian and gay community at large – sometimes even if trans people weren’t included in the legislation at all. And of course, it was a ruse. In almost all cases, it had always been legal for transsexual women to use the ladies restroom, and in all cases, this had happened for decades without incident.

Despite being a fallacy, the religious right found the potty meme to be a quick, exploitive way to win support through fear. But in the long run, the washroom argument almost never succeeded. Even in the national discussion in Canada, where the media allowed McVety to turn a bill which said absolutely nothing about -- nor changed what is legal in -- washrooms into "the bathroom bill," C-389 still passed, albeit narrowly.

In 2008, right-wing groups responded to a proposed rights bill in Montgomery County, Maryland by characterizing it as "the bathroom bill." The groups that had pioneered the modern use of potty panic realized that the evidence was against them, so they staged a fake locker room invasion in a Gaithersburg, Maryland health club. [1] Of course, they took it upon themselves to embellish a little by having the invader do tough drag, something certain to play on the "ick" factor of people everywhere and ensure that everyone saw the invader as a man in a dress:

The ploy was so obvious that the public expected that the event was faked, and Citizens for a Responsible Government spokesperson Theresa Rickman eventually admitted it during an interview by an allied organization. [2] Rickman had even been in the lobby of the gym when the incident took place, in order to direct media. Even though the only thing exposed was CRG’s intent to deceive, Focus on the Family, Family Research Council and other anti-gay organizations have still used the "Maryland spa" incident on occasion over the years since, as evidence of wrongdoings that will ensue if we extend human rights to trans people – it’s the only thing they can find to point to. In the US, the ratio of trans-inclusive ordinances to actual problems is 130+ [3] (dating as far back as 1975) to 0.

The far right continues to use the potty meme because it gains some quick support, and as long as they can divert people from examining further, it seems to them to be lasting support. It was somewhat successful in Canada during the public discussion, because left and center –leaning people didn’t bother to challenge it, and so it was allowed to dominate the conversation. And yet it only works because the media allows folks like McVety (or even encourages them, since sensationalism sells, and it becomes lucrative to provide the platform) to conflate all trans people with a Jerry Springer-style image of rough drag, conflate all trans people (male-identified or female-identified) with men, and conflate all men with sexual predators.

Sometimes, when called on the ruse, opponents of trans rights will say, "I’m not saying trans people are molesters, but someone might pretend to be trans in order to access a washroom." Beyond the obvious problem with opposing human rights for an entire group of people in order to avert theoretical occurrences not related to them, this argument also assumes that a washroom predator would be more likely to risk attracting attention to themselves throughout their travels in public by crossdressing, in order to access a washroom they’d have better luck accessing by slipping in when no one is looking.

In the US south, decades earlier, there was reluctance to desegregate washrooms because of "delicate sensibilities" and beliefs in the inferiority and impurity of entire groups of people. In the advent of HIV, there were ignorant comments about gay men in washrooms, borne by fears (that had not yet been dispelled by science) that AIDS could be contracted from a toilet seat. And every time, there was hysteria. Every time, it was unfounded. Every time, our society ultimately moved toward progress, inclusion and accommodation, anyway. And every time, we looked back and realized that the potty panic was just plain offensive.

Of course, the religious right’s concern never really was about washrooms. While Bill C-389 began its slow trek to passage in Canada, the city of Missoula, Montana passed an ordinance that extended human rights to LGBT people. Opponents emulated the CRG use of potty fear by creating notmybathroom.com (modeled after CRG’s notmyshower.com) and painting that ordinance as "the bathroom bill." The ploy failed to work, and the ordinance was passed (and potty chaos failed to ensue). So last month, opponents dropped all pretences of concerns for propriety when they lobbied the Montana Legislature to put forward a bill that would prevent communities from passing human rights ordinances that differed from the State’s law – thus erasing LGBT protections in Missoula. Now, of course, the issue is masked as "reigning in rogue government" and "maintaining intergovernmental consistency." We, however, recognize it as the blatant will to discriminate.

One of the Conservative government’s stated reasons for opposing Bill C-389 was that it was "unnecessary."

But it is necessary. It’s necessary exactly because this irrational fear persists. It’s necessary exactly because trans people still get conflated with sex predators and child predators, or labeled as "sick," "perverse," and "freaks." It’s necessary exactly because people become so clouded with assumptions and myths that they argue for our deliberate exclusion from human rights under the pretext that granting them would be "dangerous" or "scary." It’s necessary exactly because this bias is so entrenched that people think nothing about broadcasting it openly as though fact. It’s necessary exactly because it is so pervasive that discrimination becomes not only likely but inevitable.

Because Bill C-389 is a human rights bill. Inclusion in the hate crimes clauses of the Criminal Code of Canada means that violence against trans people cannot be simply dismissed in the courts as inconsequential or the victim’s just deserts, and hate crimes data can start to be collected. Inclusion in the Canada Human Rights Act calls for equal treatment in terms of employment, housing and access to services. While the Canada Human Rights Act only governs those things governed federally, it bolsters the case for human rights inclusion through the various provinces, and pushes for them to write inclusion in.

Bill C-389 is a human rights bill. Affirmation in the form of C-389 is necessary exactly because the use of irrational assumptions to hijack human rights for trans people persists.

TransRights.ca has a sample letter and contact info so that you can contact Senators to voice your support for Bill C-389, and to stress the importance of it proceeding through the Senate in a timely manner. At the time of writing, it is still a bill without a sponsor in the Senate.

1) www.gaycalgary.com/u205

2) www.gaycalgary.com/u212

3) www.gaycalgary.com/u219