Erik Marshall, Toronto
On June 13, 2012, Bill 33, Toby’s Act (Right to be Free from
Discrimination and Harassment Because of Gender Identity or Gender Expression),
2012 (“Proposed Amendment”) passed Third Reading as amended by the Standing
Committee on Social Policy. The purpose
of the Proposed Amendment is to extend human rights protections to
transgendered people.
The term “transgendered” is not included in
either the Proposed Amendment or the existing Ontario Human Rights Code (“Code”). However, the Ontario Human Rights Commission,
one of the Proposed Amendment’s principal advocates, has stated that the term “transgendered”:
describes
individuals who are not comfortable with, or who reject, in whole or in part,
their birth assigned gender identities. The
word transgendered is generally viewed as an umbrella term that unifies people
who identify as transsexual, transgenderist, intersexed, transvestite or as a
cross-dresser.1
The Proposed Amendment amends the Code to specify that every person has a
right to equal treatment without discrimination because of “gender identity” or
“gender expression” with respect to employment, services, accommodation,
contracts, and vocational associations (i.e., trade union membership).
In addition, the Proposed Amendment amends
the Code to specify that every person
has a right to be free from harassment because of “sexual orientation”, “gender
identity” or “gender expression” with respect to employment and accommodation.
While the Proposed Amendment does not
specifically provide definitions of “gender identity” or “gender expression”,
the Commission, has stated with respect to “gender identity” that:
Gender identity is
linked to an individual’s intrinsic sense of self and, particularly the sense
of being male or female. Gender identity
may or may not conform to a person's birth-assigned sex. The personal characteristics that are
associated with gender identity include self-image, physical and biological
appearance, expression, behaviour and conduct, as they relate to gender.2
This development in the law follows on the
heels of a recent decision of the Human Rights Tribunal of Ontario in which
legislation requiring a person to have transsexual surgery before he or she can
change the sex designation on his or her birth registration was found to be discriminatory.3
The Proposed Amendment will become law in Ontario once it has received Royal Assent. It is anticipated that this will occur in the
near future.
1 Ontario Human Right Commission, Policy on discrimination and harassment because of
gender identity, March 30, 2000, at page 15.
2 Ibid., at page 6.
3 XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII).
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