Gender Identity and Canada’s Human Rights System
Gender identity is becoming an important social issue, particularly here in Canada as we move towards a more inclusive society. The traditional view of gender as being binary - either male or female - is increasingly becoming outdated. While in many countries men and women are regarded as equal before the law, the same cannot necessarily be said for people who are transgender. Transgender is a broad term for people who do not identify or conform with the physical gender they were born with. The last decade has seen some advances for transgender people, but their legal rights are still very much in their infancy. This post will examine the law in Canada as well as throughout the world.
Given their vulnerability, transgender people need the protection of legislation to ensure they are treated without discrimination by their employers, organisations, and government bodies. At the federal level in Canada, the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act guarantee equality and protection on the basis of "sex”, an implicit guarantee for transgender people.
However, many of the provinces do provide explicit protection in their own human rights legislation. "Gender identity” and "gender expression” were added to the Ontario Human Rights Code in 2012. The policy of the Ontario Human Rights Commission now states: "Everyone has the right to define their own gender identity. Trans people should be recognized and treated as the gender they live in, whether or not they have undergone surgery, or their identity documents are up to date.”1 Newfoundland and Labrador, Nova Scotia, and Prince Edward Island also have the same explicit protection in their human rights legislation, while Manitoba and the Northwest Territories protect "gender identity”. Other provinces in Canada must rely on their anti-discrimination laws based on references to "gender” or "sex” to implicitly protect transgender people.
There is hope at the federal level. Bill C-279 promises to finally give transgender people explicit protection under the law. Currently undergoing its second reading in the Senate, it seeks to add "gender identity” to the Canadian Human Rights Act and the hate crime sections of the Criminal Code. The Bill has had plenty of support: Amnesty International partnered with a number of Canadian organisations to put their weight behind it, saying in a statement: "Given the extreme vulnerability to human rights abuse faced by trans people in Canada, Bill C-279 will help to prevent discrimination and ensure that those who commit hate crimes are held to account”.2 If passed, this will be a landmark piece of legislation, finally giving transgender people federal protection from discrimination and harassment.
How common is discrimination based on gender identity in Canada?
Discrimination on the basis of gender identity is still very prevalent in Canada. In Ontario, TransPULSE has collected statistics on discrimination against trans people. These statistics show that on the basis of their gender identity, 73% of trans people have been made fun of, 39% have been turned down for a job, 26% have been assaulted, and 24% have even been harassed by police. In addition, discrimination in employment imposes a disproportionate burden on trans people in Ontario, including both high unemployment and underemployment.
On the other hand, human rights legislation provides concrete legislation allowing individuals to seek remedies against organizations, employers, and government bodies who discriminate. By acknowledging gender identity claims, human rights bodies can provide tangible support for trans people. The case of XY v. The Ministry of Government and Consumer Services (2012 HRTO 726) is an excellent example of the support that human rights legislation can provide. Previously, Ontario law had not allowed transgender people to change the sex designation on their birth certificate without first undergoing surgery, but the tribunal overturned the requirement because it was discriminatory.
What is the difference between explicit and implicit recognition of gender identity?
Every provincial and territorial government in Canada has a human rights code, including the federal government. These codes list grounds such as race, sex, and sexual orientation under which Canadians may not be discriminated. However, only the Northwest Territories, Manitoba, Ontario, and Nova Scotia explicitly recognize complaints based on gender identity within their human rights legislation. This means that the code itself says that gender identity is one type of discrimination that is covered. In these provinces, claims of discrimination on the basis of gender identity may be filed in the same way as any other discrimination claim.
In other provinces and territories, the legislatures have not passed bills that would add gender identity to their human rights codes. Their codes do not list gender identity as one of the grounds of discrimination. However, the human rights bodies of these provinces have other ways of recognizing discrimination based on gender identity, such as recognizing the link between the discrimination and the claimant’s gender. This is called implicit recognition, because these provinces will help people who have been discriminated against because of their gender identity, even though their codes have not been amended. ECHRT supports the passing of more formal protection for gender identity in these provinces and territories, as it would provide clear protection for trans people. Currently, Canada’s Human Rights Codes only provides implicit support for gender identity, but a bill has passed the House of Commons that would add gender identity to the federal code.
How do provinces that don’t have ‘gender identity’ in their codes implicitly recognize gender identity?
Before Ontario passed legislation to add gender identity and expression to its human rights code, decisions at the Ontario Human Rights Tribunal allowed for recognition of gender identity through other grounds. Both the federal human rights tribunal, and British Columbia have done the same. These decisions are important because courts recognize prior decisions as evidence when considering a new claim. Although they have not had similar landmark decisions, several other provinces and territories already acknowledge gender identity as a form of sex discrimination on their websites or in publications by their human rights bodies.
The Canadian Human Rights Tribunal held in Kavanagh v. Canada (Attorney General), (2001 CanLII 8496, 41 C.H.R.R. D/119 (C.H.R.T.)) that discrimination on the basis of "transsexualism” is discrimination on the basis of sex or disability. The Canadian Human Rights Commission’s FAQ page for complaints now explicitly recognizes that gender identity is an aspect of gender to be recognized within the federal code.
It is clear that legal rights for transgender people are still evolving. Even in countries like Canada and the United States, it will be some time before transgender people receive the equality they are entitled to. Bill C-279 has great potential for transgender Canadians, and as we see awareness growing and laws changing, it is hoped that other countries also move in the right direction.