On June 13, 2012, the Ontario Legislature
passed third reading of Bill 33, which will amend the Ontario Human Rights Code
(the “Code”) to prohibit discrimination in Ontario on the basis of gender
identity or expression. The Bill, entitled “Toby’s Act (Right to be Free from
Discrimination and Harassment because of Gender Identity or Gender Expression),
2012,” received support from all parties, and will come into force upon
receiving Royal Assent. It is expected the amendments will become law later this year. Once
in force, charities and not-for-profits, operating in Ontario will be subject
to these amendments.
As a result of Bill 33, the Code will
provide that every person has the right to equal treatment without
discrimination because of “gender identity” or “gender expression” with respect
to employment, services, accommodation, contracts and memberships in vocational
associations (such as a trade unions, trade or occupational association or a
self-governing professions). As well, harassment on the basis of gender
identity and expression, both in the workplace and in residential
accommodation, will be prohibited.
B. WHAT IS “GENDER IDENTITY” AND “GENDER
The terms “gender identity” and “gender
expression” are not specifically defined in the Code. However, the goal of the
amendments is to extend legal protections to people who identify themselves as
“transgendered.” According to the Ontario Human Rights Commission, which
released its “Policy on Discrimination and Harassment Because of Gender Identity” in March, 2000, the term “gender identity” means:
“Gender identity is linked to an
individual’s intrinsic sense of self and, particularly the sense of being male
or female. Gender identity may or may not conform to a person's birth-assigned
sex. The personal characteristics that are associated with gender identity
include self-image, physical and biological appearance, expression, behaviour
and conduct, as they relate to gender.
At birth, a child is assigned a gender
by a health care professional based on observation of the child’s genitalia.
Society makes the assumption that based on this medical assessment a child will
grow up to exhibit correspondingly masculine or feminine behaviours and
appearances. However, this is not always the case. A person’s felt identity or
core identity may differ in part or in whole from their birth assigned sex. Individuals
whose birth-assigned sex does not conform to their gender identity include
transsexuals, transgenderists, intersexed persons and cross-dressers.
A person’s gender identity is
fundamentally different from and not determinative of their sexual
While the term “gender expression” is not
specifically referred to in the Ontario Human Rights Commission Policy, it is
understood to mean the manner by which a person expresses their gender
identity, including how they dress, behave, speak and interact with others.
The amendments to the Code by Bill 33
seek to remove any legal doubt as to human rights protections afforded to
transgendered people. While provincial human rights tribunals in Ontario and other provinces
have consistently held over the past several years that current human rights
statutes must be interpreted to prohibit discrimination on the basis of gender
identity and expression (primarily under the current “sex” or “sexual
orientation” prohibited grounds of discrimination), Ontario will be the first
province in Canada to specifically include these two new grounds in its
provincial human rights laws. Therefore, charities and not-for-profits will
need to be mindful of these changes and, subject to the existing exemptions,
adapt their internal human rights policies accordingly. It should be noted that
the exemptions in the Code pursuant to s. 18 with respect to services and
facilities provided by special interest organizations (such as churches, educational
and fraternal organizations), and pursuant to s. 24 with respect to employment,
will continue to apply.