Submitted by: Action Canada for Sexual Health and Rights
Sandeep Prasad, Executive Director
+1 613-562-2441 x3
Action Canada for Sexual Health & Rights is a progressive, pro-choice charitable organization committed to advancing and upholding sexual and reproductive health and rights in Canada and globally.
Key words: maximum available resources, right to health, access to abortion information and services, access to sexual and reproductive health services and information, sexual and reproductive health of Indigenous peoples, conscientious objection, comprehensive sexuality education.
Article 2 – Realization of economic, social and cultural rights 3
Background: progressive realization of economic, social and cultural rights through international development cooperation policy 3
Situation in Canada: support for the realization of economic, social and cultural rights through international development cooperation policy 4
Situation in Canada: discrimination on the grounds of sexual orientation, gender identity and expression 8
Article 12 – Right to health 10
Situation in Canada: availability and accessibility of sexual and reproductive health services 12
Situation in Canada: sexual and reproductive health of Indigenous Peoples 21
Situation in Canada: conscientious objection 24
Article 13 – Right to education 28
Situation in Canada: comprehensive sexuality education 30
This report is submitted by Action Canada for Sexual Health and Rights for Canada’s review during the 57th Session of the UN Committee on Economic, Social and Cultural (herein referred to as the ‘Committee’), taking place from February 22nd to March 4th 2016. The report examines violations of articles 2, 12 and 13 of the International Covenant on Economic, Social and Cultural Rights with respect to ensuring the allocation of maximum available resources through international assistance for the realization of economic, social and cultural rights, access to safe abortion services without discrimination, providing young people with access to accurate, evidence-based sexuality education, and the denial of sexual and reproductive health care on moral or religious grounds.
The List of Issues1 prepared by the Committee in March 2015 requests that Canada provide information on a number of issues outlined in this report. Specifically, the Committee requests that Canada provide information on: the legal framework regulating abortion in Canada, the availability and accessibility of sexual and reproductive health information and services, and the availability and accessibility of age-appropriate sexual education in schools.
Article 2 – Realization of economic, social and cultural rights
Background: progressive realization of economic, social and cultural rights through international development cooperation policy
Article 2.1 of the Covenant on Economic, Social and Cultural Rights obliges state parties to undertake steps, including legislative measures, to allocate the maximum available resources for the realization of economic, social and cultural rights through international assistance and co-operation.2 In General Comments No. 2 and No. 3, prepared by the Committee, the Committee reiterates the obligation of states in a position to assist others in need.3 The Committee has further recommended that efforts should be made to ensure that economic, social and cultural rights, which include sexual and reproductive rights, are taken into consideration at all phases of development initiatives.4 In concluding observations to states, the Committee expressed concern regarding failure to meet the global 0.7% Gross National Income (GNI) target for international assistance, and called on states to step up efforts to meet the target.5 The Committee has further recommended the adoption of a human rights-based approach to development cooperation, with a specific focus on economic, social and cultural rights.6
Article 2.2 of the Covenant further obliges state parties to guarantee economic, social and cultural rights without discrimination. Analysis of this provision by the Committee affirms that a lack of available resources cannot justify failure to eliminate discrimination.7 In the context of international assistance, General Comment No. 20 dissuades states from promoting or upholding discriminatory practices, and obliges states to “take steps to ensure that all actors under their jurisdiction do likewise.”8
Situation in Canada: support for the realization of economic, social and cultural rights through international development cooperation policy
In the past, Canada has had a strong reputation of being a leader on these issues. But in recent years, this reputation has been diminished. Government of Canada spending on aid has plateaued at 0.24% Gross National Income (despite commitment to a minimum target of 0.7%), funding for women’s rights organizations and gender specific projects has decreased significantly, and many partners and countries have criticized Canada for adopting ideological stances on development issues, specifically around sexual and reproductive rights.
Investing in sexual and reproductive health and rights yields significant returns on investment. Meeting the unmet need for modern contraception and achieving universal access to sexual and reproductive health services by 2030, for example, is estimated to yield US$120 for every dollar spent, and over US$400 billion in annual benefits.9 Despite this, Canadian aid, specifically in the realm of sexual and reproductive rights, continues to fall short. Compared to its G7 counterparts, Canadian official development assistance (ODA), and specifically funding for sexual and reproductive rights, is among the lowest - behind the UK, Germany, Japan, the Netherlands, France, and others.10 Despite being a vocal champion for maternal, newborn and child health, UK government spending on family planning in one year alone was more than double the total that Canada spent on family planning in the last four years of the Muskoka Initiative,11 with a mere 1.2% of funding going to family planning.12 Canada’s overall support for sexual and reproductive health and rights is far below the 10% of ODA repeatedly agreed upon during International Parliamentarian Conferences on the Implementation of the International Conference on Population and Development (ICPD, IPCI/ICPD).13 Figures from 2013-2014 demonstrate Canada is less than half way towards achieving this target, spending only 4.97% ODA (of an already small ODA budget) on reproductive health care and family planning.14
Not only has the Government of Canada underfunded central components of a comprehensive package of sexual and reproductive health services and information, it has also refused to fund safe abortion services as part of its international assistance. Canada’s refusal to fund abortion services was not a written policy and therefore not subjected to parliamentary scrutiny. Grounded in ideology rather than human rights, evidence and best practice, the government’s approach to development has discriminated against women. It is also feared that the refusal to fund abortion services has had a ‘chill effect’ on the provision of other related services and information.15
The new government elected in October 2015 has committed to ensuring Canada’s focus on maternal, newborn and child health is “driven by evidence and outcomes, not ideology, including by closing existing gaps in reproductive rights and health care for women.”16 Despite the clarity brought by the mandate letter to the new Minister of International Development, the government has yet to indicate what steps it will take to support sexual and reproductive health in the future. According to the Official Development Assistance (ODA) Accountability Act, the Government must align development assistance with international human rights right standards which hold the Government and implementing partners accountable to promoting international human rights standards.17
Background: non-discrimination in economic, social and cultural rights of persons with diverse sexual orientations, gender identities and expressions
Referring to article 2.2 of the Covenant, General Comment No. 20, produced by the Committee in 2009, requires states to “guarantee non-discrimination in the exercise of each of the economic, social and cultural rights enshrined in the Covenant” – and that discrimination “constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.”18 In the same General Comment, the Committee makes specific reference to gender identity as a prohibited grounds for discrimination, recognizing that “persons who are transgender, transsexual or intersex often face serious human rights violations, such as harassment in schools or in the workplace.”1920 To address such forms of discrimination, the Committee calls upon states to adopt legislation that prohibits discrimination on the field of economic, social and cultural rights, ensure that strategies, policies and plans are implemented to address formal and substantive discrimination, and conduct human rights education and training programmes for public officials. All efforts in this regard should include effective remedies and mechanisms for accountability.21
The Committee, in its concluding observations to states, has often expressed concern regarding ongoing forms of discrimination against persons with diverse gender identities and expressions, and has called for awareness raising and the enactment of specific legislation prohibiting discrimination against persons on grounds covered under the principles on gender equality.22
The Human Rights Council (herein referred to as the ‘Council’) has addressed the issue of sexual orientation and gender identity through the passing of specific resolutions as well as a report which studies discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity.23 The report calls on states to:
“enact comprehensive anti-discrimination legislation that includes discrimination on grounds of sexual orientation and gender identity among prohibited grounds and recognizes intersecting forms of discrimination;”
“implement appropriate sensitization and training programmes for police, prison officers, border guards, immigration officers and other law enforcement personnel, and support public information campaigns to counter homophobia and transphobia among the general public and targeted anti-homophobia campaigns in school;” and
“facilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human rights.”24
Situation in Canada: discrimination on the grounds of sexual orientation, gender identity and expression
In a 2011 nationwide survey, over three-quarters of transgender youth reported experiencing verbal harassment in school and 1 in 3 reported experiencing physical violence.25 People of diverse and non-conforming sexual orientations, gender identities and expressions, who challenge socially accepted norms and behaviours, are most at risk of experiencing heightened levels of stigma, discrimination and violence, often by teachers, medical professionals, police and others in positions of authority. Such experiences are often exacerbated by multiple and intersecting forms of discrimination, including those related to income, immigration status, age, level of education, housing situation and employment, among many other factors.
Fearing stigma or discrimination, or lacking access to comprehensive rights-based and integrated health services, individuals are often left with no option but to choose to avoid seeking health services, particularly sexual and reproductive health services. Such situations result in poor health outcomes, which can lead to socio-economic challenges, including reduced income, reduced mobility, inability to stay in school or access decent employment, among other related impacts. For example, trans persons experience heightened rates of HIV: “in Ontario, self-reported HIV prevalence among trans persons was ten times the overall provincial prevalence estimate.”26 A 2011 study found that 27.7% of trans women in Canada were living with HIV, representing a significantly higher HIV prevalence rate than the general population.27According to researchers, HIV vulnerability of trans persons, and trans women of colour in particular, “may include multiple forms of stigma and discrimination resulting in poverty and the need to engage in survival sex work, lower rates of HIV testing, less education about sexually transmitted diseases, inequitable power in relationships, a longing for affirmation, and decreased desire for self-care, among other factors.”28 According to the United Nations Special Rapporteur on the right to the highest attainable standard of physical and mental health, “stigmatization prevents legislative and policymaking institutions from adequately addressing health-related matters in communities that are especially vulnerable to the infringement of the enjoyment of the right to health.”29
Trans persons also face barriers in accessing the services and information required to proceed with the medical treatment they might need as part of their transition. Barriers include cost of the procedures, limited access to trained professionals, risk of experiencing stigma or discrimination at the hands of health professionals, travel-related costs and age restrictions, among others. As a result, many trans persons may not proceed with the treatment. Recognizing such barriers, all provinces except New Brunswick and PEI fund a range of sex reassignment surgeries through provincial insurance plans.30
In Canada, a number of provinces and territories have added both gender identity and gender expression to the list of protected grounds from discrimination including: Ontario, Nova Scotia, Newfoundland and Labrador and Prince Edward Island. Manitoba and Northwest Territories have listed gender identity. While such efforts at provincial and territorial levels are critical, they nonetheless create discrepancies between levels of government, which can result in further discrimination depending on the legal context. Federal leadership on this issue is therefore required to ensure that all trans persons across the country have the same human rights protections.
Recommendations to the Government of Canada relating to Article 2 of the Covenant:
Increase foreign aid to meet the international commitment of 0.7% GNI to ODA, and exceed the commitment of 10% of OA for sexual and reproductive health information and services.31
Increase funding for multilateral and civil society organizations working on the rights contained in this Covenant, including those related to gender equality, sexual and reproductive health and rights. Such organizations include: the United Nations Population Fund (UNFPA), UN Women, and the Office of the High Commissioner for Human Rights (OHCHR).
Ensure alignment with international human rights instruments, including this Covenant, by establishing a Canadian global policy on sexual and reproductive rights that would bring a human rights-based approach to Canadian foreign policy and development assistance in the realms of gender equality, sexuality and reproduction.
Introduce legislation to add real or perceived gender identity and gender expression to the list of prohibited grounds for discrimination in the Canadian Human Rights Act and make it illegal to willfully or publically incite hatred based on these grounds in the Criminal Code, ensuring the meaningful participation of persons with diverse sexual orientations, gender identities and expressions in all relevant legislative reforms.
Create a third gender marker on all government forms, census and other means of data collection.
Initiate dialogue with provinces and territories to ensure laws and policies related to trans persons are aligned and consistent across jurisdictions, including human rights protections and the ability to access medical treatment free of charge, and identification that matches the gender and name of their choosing, regardless of immigration status or age.