tansi ninôtemik,
For the purpose of this blog post, we use the term “Indian” when discussing the Indian Act and registration under the Indian Act, including terms such as “status Indian” and “non-status Indian.”[1] These terminologies were created by the federal government and are still used when discussing Indigenous people under the Indian Act. As well, it is important to know that 2SLGBTQI+ stands for “Two-Spirit, lesbian, gay, bisexual, transgender, queer, intersex, and additional sexually and gender diverse people.”[2]
In a previous blog post we began the discussion on the issues of gender identity and registering for Indian status.[3] Today, we are going to discuss Bill C-16 and how it interacts with Indian status registration.[4]
What is Bill C-16?
Bill C-16 is an act that came into force on June 19, 2017, and amended the Canadian Human Rights Act and the Criminal Code.[5] It amended the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination. For the Criminal Code, it extended protection to victims of criminal offences that were motivated by bias, prejudice or hate based on gender identity or expression and made it an aggravating circumstance that the Court must take into consideration in sentencing.
Did it have any impact on registering for status?
Bill C-16 came into effect on June 19, 2017, and Bill S-3 came into force on December 22, 2017. Bill S-3 amended the Indian Act to get rid of sex-based unfairness in the registration process for Indian status.[6] The Bill S-3 “amendments are gender neutral and apply equally, regardless of a person’s gender identity or expression”.[7] Therefore, they align with the Bill C-16 amendments to the Canadian Human Rights Act.[8] However, as we discussed in our previous blog, people apart of the 2SLGBTQI+ community still face more barriers and requirements when applying for Indian status.[9]
Bill C-16 made gender identity and expression protected against discrimination in the Canadian Human Rights Act. Do you think that more needs to be done to make it a better process for gender diverse people and Indian registration? For this discussion, we will leave you with a quote from Cree lawyer and professor, Val Napolean:
"In the Aboriginal political landscape, there is an absence of voices advocating that sexual orientation and transgenderism are significant Aboriginal issues. Instead, they remain subsumed by continuing political and legal battles over Aboriginal rights and title, formal equality rights as set out in the Canadian Charter of Rights and Freedoms, and human rights legislation."[10]
- Val Napoleon
How do you think we can better support our Indigenous 2SLGBTQI+ community?
ekosi.
The ReconciliACTION Team
Citations
[1] Indian Act, RSC 1985, c I-5 [Indian Act].
[2] Government of Canada, “Facts, stats, and impact: 2SLGBTQI+ communities”, (fact sheet) online: <www.canada.ca> [www.canada.ca/en/women-gender-equality/free-to-be-me/federal-action-2slgbtqi-communities/facts-stats.html].
[3] ReconciliACTION YEG, “Gender Identity and Status” (9 February 2025) online(blog): <reconciliactionyeg.ca/post/gender-identity-and-status> [perma.cc/HP44-AN5C] [Blog].
[4] Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2017 (as passed by the House of Commons 19 June 2017).
[5] Canadian Human Rights Act, RSC 1985; Criminal Code, RSC 1985.
[6] Bill S-3
[7] Assembly of First Nations, “Gender Identity and Registration for Indian Status” (last visited 28 February 2025) online(fact sheet): <afn.ca/wp-content/uploads/2020/01/10-19-02-06-AFN-Fact-Sheet-Gender-Identity-and-Registration-final-revised.pdf> [perma.cc/RV6L-JXA8].
[8] Ibid.
[9] Blog, supra note 3.
[10] Val Napoleon, “Raven’s Garden: A Discussion about Aboriginal Sexual Orientation and Transgender Issues,” (2002) 17:2 CanJ L & Society 149 at 149.
[Image] National American Indian Court Judges Association, “Two Spirit/Native LGBTQ Resources” (last visited 28 February 2025) online (resource): <naicja.org/two-spirit-native-lgbtq-resources/>.
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