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“Gender Identity” and “Gender Expression” now Protected Grounds under Ontario Human Rights Code

In a significant and historic move, on June 13, 2012, the Ontario Legislature passed amendments to the Ontario Human Rights Code that would extend protection against discrimination to transgender individuals.  The term transgender is used to generally describe persons whose gender identity, or the way in which they express their gender, differs from their assigned sex.  The Code will now protect individuals on the basis of their “gender identity” and “gender expression”.

The Code already protects individuals from discrimination on the basis of sex and sexual orientation.  However, an individual’s gender identity or gender expression is not necessarily captured by either “sex” or “sexual orientation”.

Though yet to be defined in the Code, an individual’s gender identity is generally understood to be a person’s innate psychological identification with a particular sex.  In some cases, a person’s gender identity does not match his or her sex determined at birth.  “Gender expression” is also not defined, but is commonly understood to be how a person expresses his or her gender identity through behaviour and characteristics such as dress, grooming and mannerisms.  Transgender individuals can struggle with gender identity and expression issues throughout their life.

The amendment to the Code was proposed as a private member’s bill and received support from all three political parties.  Bill 33, Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012 amends the Code to prohibit discriminatory practices, including harassment, on the basis of gender identity or gender expression in various areas, including employment.

The changes to the Code are significant and in line with human rights developments in other countries, including the United States.  Ontario employers will undoubtedly need to consider and revise their non-discrimination and anti-harassment policies to align with the amendments.  Nevertheless, employers are likely to have questions and concerns with respect to the accommodation of transgendered individuals and their unique needs.  This may be particularly the case where a person undergoes surgery to alter physical characteristics to match the gender identity.

The amendment will take effect upon Royal Assent.  The definitions of gender identity and gender expression that are used in the Code will undoubtedly have an impact on the amendments and we will keep you updated on those additional provisions.  In the meantime, CCP’s lawyers are well equipped to advise you on the implications of these important changes and what they mean for your organization going forward.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.