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Developing transgender-inclusive policies

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In June 2012, the Ontario legislature passed Bill 33, also known as Toby’s Act, adding the grounds of gender identity and gender expression to the Ontario Human Rights Code(“Code”). Since then, numerous other Canadian jurisdictions – i.e. the Northwest Territories, Manitoba, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador – also explicitly reference gender identity in their human rights legislation. On March 10, 2014, Alberta passed legislation that will add them to the list.

“Gender identity” and “gender expression” were not defined by the legislature, but in April 2014, the Ontario Human Rights Commission released its Policy on preventing discrimination because of gender identity and gender expression (the “Policy”), in which the terms were defined as follows:

Gender identity is each person’s internal and individual experience of gender. It is their 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 identity is fundamentally different from a person’s sexual orientation.

Gender expression is how a person publicly 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.

Since that time, I have kept an eye out for decisions that interpret and apply the definitions and protections outlined in the Policy. While I have yet to see many decisions based on these grounds, the impact of these changes are nonetheless being seen through the development of internal policies addressing gender identity and expression.

For example, as part of the settlement of a complaint by a transgender teen hockey player, Hockey Canada agreed to allow players in Ontario to use the change-room that corresponds with their gender identity and to be referred to by the name and pronouns with which they identify.

Other organizations are being more proactive and are developing policies on their own. In January 2015, Ontario’s Ministry of Community Safety and Correctional Services released its Policy for the Admission, Classification and Placement of Trans Inmates after extensive consultation with community and justice sector organizations. Among other things, the Policy provided that trans inmates are placed in an institution that is appropriate for their gender identity and are referred to by their preferred name and gender pronoun. In addition, trans inmates are able to provide input as part of a case management process in decisions being made about their placement and care.

And just yesterday, Humber College announced that they are the first college in Ontario to release a gender diversity policy, relating to areas such as “privacy and confidentiality, all-gender washrooms, change-rooms, gender-inclusive language, and all-gender residence.” Similar to the Commission’s policy, Humber College recognizes that self-identification is the sole and whole measure of a person’s gender.

We are beginning to see protections for trans individuals take other forms as well. Last week NDP MPP Cheri Dinovo tabled a bill, the Affirming Sexual Orientation and Gender Identity Act  that would ban conversion therapy for LGBT youth and prohibit any attempt to change or direct the gender identity of a person under the age of 18.

While there were certainly progressive organizations addressing these topics prior to the Commission’s policy – the Toronto District School Board and Mt. Sinai Hospital come to mind – it is encouraging to see that organizations increasingly seek to meet (and exceed) the legal expectations of them as employers and service organizations in Ontario relating to gender identity and gender expression.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.