The Ottawa Region Charity & Not-for-Profit Law Seminar
Update On Charity Law
Gender Identity or Expression Now Prohibited Grounds of Discrimination
On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code (“Bill C-16”) received Royal Assent and came into force. Bill C-16 amended the Canadian Human Rights Act (“the Act”) to include gender identity and gender expression as prohibited grounds of discrimination, and also amended the Criminal Code to include both terms in the definition of ‘identifiable group’ in relation to offences of hate propaganda.
The Act applies to federal and federally-regulated works and industries, such as the federal government, federal agencies and Crown corporations, chartered banks and airlines, among others. As such, the changes will have little direct impact to the charitable sector, which for the most part is subject to provincial human rights laws. With these changes, it is now a discriminatory practice to deny the provision of goods, services, facilities or accommodation, ordinarily available to the general public, to any individual for reason of gender identity or expression. Similarly, it is a discriminatory practice to deny commercial premises or residential accommodation, as well as to refuse or limit employment on these prohibited grounds, unless there is a bona fide justification as described in s.15(1) of the Act.
The definitions for “gender identity” and “gender expression” were not included in Bill C-16. However, federal courts and tribunals may follow generally accepted interpretations, such as those of the Ontario Human Rights Commission in its policies from 2000 and 2014:
Gender identity is each person’s internal and individual experience of gender. It is a person’s sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex.
Gender expression is how a person publicly expresses or presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender. Others perceive a person’s gender through these attributes. A person’s gender identity is fundamentally different from and not related to their sexual orientation.
The amendments to the Act follow like changes in provincial human rights legislation in the past five years, starting with Ontario in 2012, as reported in our Charity Law Bulletin No. 285.
With respect to the amendments to the Criminal Code, Bill C-16 introduced gender identity or expression to the s. 318(4) definition of “identifiable group”. This definition applies to the s.318 offence of “advocating genocide” and the s. 319 offence of “public incitement of hatred.” Thus, the promotion of genocide or hatred towards a group of individuals based on their gender identity or expression can now be punishable by imprisonment.
Moreover, Bill C-16 amended subparagraph 718.2(a)(i) of the Criminal Code to allow a sentencing judge to consider if the offender was motivated by bias, prejudice or hatred based on gender identity or expression as an aggravating factor that might lead to harsher sentences.