“Gender Identity” and “Gender Expression” to be Added to List of Prohibited Grounds of Discrimination in Ontario Human Rights Code

June 14, 2012

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.

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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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