Human Rights Protection Added for Transgender Identity - LawNow Magazine

Human Rights Protection Added for Transgender Identity

Human Rights Law ColumnA trans-identified, transgender or transsexual person is someone who feels they were born in the wrong body (for example, someone born either with female anatomy who feels male, or with male anatomy who feels female, on a deep, psychological and emotional level) and therefore has a gender identity that is different from their birth gender. Gender identity is separate from sexual orientation, which is the descriptor of a person’s overall attraction to people of the same sex, the opposite sex, or either sex.
Transgender persons are particularly vulnerable to and experience discrimination and other challenges:

  • at school (e.g., teasing, deciding which locker room or washroom to use);
  • in medical contexts (e.g., whether hormone therapy or surgery is available and at what age);
  • in identification (e.g., birth certificates, passports, etc., which may need to be amended);
  • in employment (e.g., seeking appropriate accommodation, informing co-workers, etc.); and
  • in other contexts.

Only recently has human rights legislation in several provinces and territories explicitly recognized and addressed discrimination on the basis of transgender identity. Equality for Gays and Lesbians Everywhere (EGALE) indicates that there is discrimination against trans-identified individuals (EGALE, FAQs: Gender Identity and Canada’s Human Rights System online: http://egale.ca/faq-gender-identity/#2)

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.

Only recently has human rights legislation in several provinces and territories explicitly recognized and addressed discrimination on the basis of transgender identity. As of November 2015, eight provinces and territories explicitly protect “gender identity” or “gender expression”. Alberta was the most recent province to explicitly add this ground through Bill 7, the Alberta Human Rights Amendment Act, 2015. The following list illustrates when each of the provinces or territories added to their legislation “gender identity” or “gender expression” as a ground of protection:

  • Alberta 2015
  • Saskatchewan 2014
  • Manitoba 2013
  • Ontario 2012
  • Nova Scotia 2012
  • Prince Edward Island 2013
  • Newfoundland and Labrador 2013
  • Northwest Territories 2002

Other provinces, territories and the federal government jurisdiction continue to rely on an expansive definition of “gender” that has developed through case law. The following examples are taken from decisions in jurisdictions that formerly or currently rely on the expanded definition of “gender” or “sex” discrimination to include discrimination on the basis of gender identity or gender expression.

In Sheridan v Sanctuary Investments Ltd, (c.o.b. B.J.’s Lounge), [1999] BCHRTD No. 43 (QL), discrimination was established when staff at a bar prohibited a pre-operative transgender from accessing the washroom of her target gender. Access to facilities that are exclusively male or female is a commonly litigated area in this field.

Gender identity is separate from sexual orientation, which is the descriptor of a person’s overall attraction to people of the same sex, the opposite sex, or either sex.In Vancouver Rape Relief Society v British Columbia (Human Rights Commission), 2000 BCSC 889 (QL), a trans individual initially won her case after being denied a volunteer position because she had not lived her whole life as a female. That decision was overturned and later affirmed by the British Columbia Court of Appeal (denied leave to appeal to the SCC) (Vancouver Rape Relief Society v Nixon, 2005 BCCA 601). Although discrimination on the basis of sex had been shown, the Society was exempt under the British Columbia Human Rights Code because of its non-profit status. Section 41 of the B.C. Code offers protection for non-profits contravening the Code, if the primary purpose of the organization is the promotion of the interests of one of the protected groups.

In Kavanagh v Canada (Attorney General), [2001] CHRD No 21, QL, the Canadian Human Rights Tribunal confirmed that sex-reassignment surgery cannot be prohibited while an individual is incarcerated, but the penal institution’s duty to accommodate does not guarantee that pre-operative transsexuals are placed in the institution of their target gender.

In Forrester v Peel (Regional Municipality) Police Services Board, 2006 HRTO 13, (CanLII) [Ontario], when a police strip search was conducted improperly, the complainant was successful in a case of discrimination on the basis of sex.

In Hogan v Ontario (Minister of Health and Long-Term Care), 2006 HRTO 32 (CanLII) the Province of Ontario delisted sex-reassignment surgery and it ceased to be an insured benefit covered by the provincial health insurance plan. In this case, the successful complainants had already begun the process towards achieving the surgery, and the Tribunal found that it would not have been unduly hard for the province to have accommodated these individuals.

While “gender” may be interpreted to include gender identity or gender expression, its explicit inclusion in human rights legislation makes it clear to people what their rights and responsibilities are. Previously,  individuals would have discouraged from making complaints about gender identity discrimination if they are unclear as to whether the complaint will be received. Now, the focus will be on how service providers, employers and landlords may accommodate trans identified individuals so that they are treated with dignity and respect.

Authors:

Linda McKay-Panos
Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.
 


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