Important Note: This FAQ is intended to provide you with a broad overview of gender identity’s representation in the human rights process, and should not be treated as legal advice. Egale Canada does not provide legal advice or legal assistance. You should seek the assistance of a lawyer in completing the human rights complaint process. Free legal assistance with human rights complaints is available at legal clinics across the country.
What are human rights and what is human rights legislation?
According to the Government of Canada, human rights are rights that every single human being is entitled to. They boil down to protection from discrimination and harassment, which all people need in order to be able to live a “life of equality, dignity, and respect.”
‘Human rights legislation’ refers to laws that define rights and lay out how they should be enforced. For example, the Canadian Charter of Rights and Freedoms (often simply called the Charter) contains a list of rights that the government has to respect, like the right to equal treatment, the right to not be arbitrarily imprisoned or detained, and the right to express your opinion. It also says that if you feel one of these rights has been violated, you can go to court to seek relief.
Another type of human rights legislation are the federal and provincial or territorial Human Rights Acts. These very specifically target discrimination and harassment based on what are called protected grounds – characteristics often associated with structural oppression where it makes sense to fight the effects of inequality with legal measures. The Canadian Human Rights Act is a federal law that applies whenever a federal body is involved, like, for example, the Armed Forces. Each province and territory has its own human rights legislation, which applies for provincial or territorial and municipal bodies like schools. These Human Rights Acts also apply between ordinary people, as opposed to the government, in some cases: specifically, for housing, employment, and some services.
Here’s the list of the protected grounds in the Canadian Human Rights Act, Section 3(1):
- national or ethnic origin
- sexual orientation
- gender identity or expression (since 2017)
- marital status
- family status
- genetic characteristics
- conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered
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, 39% of trans people have been turned down for a job, 26% have been assaulted, and 24% have been harassed by police. In addition, discrimination in employment imposes a disproportionate burden on trans people in Ontario, including both high unemployment and underemployment. In 2020, TransPULSE found that 45% of trans and non-binary people surveyed had had an unmet healthcare need in the previous year. Trans youth are consistently more likely than cisgender LGBQ and heterosexual youth to be bullied, made to feel unsafe, and excluded in schools, according to research by Egale.
How is gender identity protected by human rights legislation?
So, on the one hand, there is widespread inequality between trans, non-binary, and gender non-conforming people compared to cisgender people in Canada. On the other, there’s legislation designed to prevent the discrimination that leads to a lot of those inequalities. In this section and the next, we’ll take a look at how, exactly, human rights legislation can help fight discrimination based on gender identity and expression.
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.
Some notable early victories included the holding by the (federal) Canadian Human Rights Tribunal in Kavanagh v. Canada (2001) that discrimination on the basis of “transsexualism” is discrimination on the basis of sex or disability. Though that line of argument might be considered both transphobic and ableist, it meant that trans people had a legal avenue to defend themselves against discrimination. Other important provincial cases included Ferris v. Office and Technical Employees Union, Local 15 (1999) in British Columbia, which protected trans people from being discriminated against in unions; Mamela v. Vancouver Lesbian Connection (1999), also in British Columbia, which protected trans people from being fired because of their gender identity; and XY v. The Ministry of Government and Consumer Services (2012), which allowed trans people in Ontario to change the sex designation on their birth certificate without first undergoing surgery.
What is Bill C-16 (2017) and what exactly did it do?
The last few years have shown significant progress in formal protection against discrimination for gender identity and expression. Bill C-16, which passed in 2017, added ‘gender identity and expression’ to the list of protected grounds above. That formally enshrined protections for trans, non-binary, and gender-nonconforming folks into federal law. It also added ‘gender identity and expression’ to similar lists of identifiable characteristics in two spots in the Criminal Code: first, in the section on hate crimes, making it easier to prosecute hate crimes against trans, non-binary, and gender-nonconforming individuals; and second, in the section on hate speech, making it an offense to incite violence against them just as it is an offense to incite violence against other vulnerable groups.
It was – and still is – the subject of a great deal of misinformation and confusion, as well as disinformation (purposefully spreading untrue or misleading statements) and fearmongering. Some people falsely claim that it turned using the wrong pronouns for people into a criminal offense, raising concerns about “forced speech” or other limitations on freedom of speech. There are even claims that people could end up being sent to jail for refusing to use trans and non-binary people’s correct name and pronouns.
These claims have absolutely no basis in reality. As we’ve discussed, human rights protections for trans people go back all the way to the 90s. Bill C-16 didn’t create anything new, it just added a new characteristic to existing legislation – just like sexual orientation was added to the Canadian Human Rights Act in 1996.
That doesn’t mean that nothing has changed. Formally enshrining the right for trans, non-binary, and gender non-conforming people to live free of discrimination in federal law is a much stronger form of protection than protection by analogy to a different protected characteristic. It’s also a powerful message of support from our democratic institutions.
For more information on Bill C-16, check out the video below: