Gender Identity & Expression Added to Code

June 27, 2012 | Gillian Tuck Kutarna

On June 13, 2012 the Ontario Legislature unanimously approved Bill 33 ‘Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity and Gender Expression) at its third reading.  Following Royal Assent, the Ontario Human Rights Code (the “Code”) will be amended to specify that every person in Ontario has a right to equal treatment without discrimination because of gender identity or gender expression, with respect to goods, services, and facilities, employment, accommodation, contracts, and vocational associations.

The Code will also provide that every person has the right to be free from harassment with respect to employment and accommodation because of their gender expression, however, freedom from harassment with respect to services was not included.

Ontario now joins the Northwest Territories, and most recently Manitoba, in protecting people whose gender identity differs from their assigned sex at birth.

Interestingly, the Ontario Ministry of Education’s ‘Equity and Inclusive Education Strategy’, released in April 2009, preceded the current Human Rights Code amendments, requiring all boards of education to address the rights of transgender students and staff.  The Ministry Strategy definition of ‘Diversity’ included the statement:

“The dimensions of diversity include, but are not limited to, ancestry, culture, ethnicity, gender, gender identity, language, physical, and intellectual ability, race, religion, sex, sexual orientation, and socio-economic status” (emphasis added).

and defined an “inclusive education” as:

“Education that is based on the principles of acceptance and inclusion of all students. Students see themselves reflected in their curriculum, their physical surroundings, and the broader environment, in which diversity is honoured and all individuals are respected.”

The Guidelines, Policy and Program to implement the Ministry’s four year strategy (2008 to 2012) included requirements that each board develop equitable and inclusive policies, programs and practices; curriculum such that all students see themselves reflected in their studies; and staff hiring, promotion and professional development which advanced the goals of the Strategy.

The amended Code prescribes that people must be free from discrimination on the basis of gender identity and gender expression, among other grounds explicitly delineated, however, the Ministry of Education has gone farther to require school boards to undertake positive and proscribed steps to ensure that all students and staff are not only protected, but feel included and welcomed in their educational environment.


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