FAQ: Gender Identity and Canada’s Human Rights System
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. ECHRT 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. A list of trans-specific services is available here.
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.
In a series of three 1999 rulings, the British Columbia Human Rights Tribunal held that discrimination against persons because of their gender identity is sex discrimination (Ferris v. Office and Technical Employees Union, Local 15, (1999) 36 C.H.R.R. D/329 (B.C.H.R.T.), Mamela v. Vancouver Lesbian Connection, (1999) 36 C.H.R.R. D/318 (B.C.H.R.T.), Sheridan v. Sanctuary Investments Ltd, (1999) 33 C.H.R.R. D/467). Sheridan also held that it constituted a form of discrimination based on disability.
Saskatchewan has published a guide on the human rights of transgender people, where it states that gender identity discrimination is a form of sex discrimination, as do Alberta, Yukon, Prince Edward Island, and New Brunswick. Quebec defines sex discrimination as discrimination “because you are a woman, a man or a transsexual.”