On June 15, 2012, the Government of Ontario enacted a major change in the Human Rights Code, when it added gender identity and gender expression as Code grounds. The government acknowledged the need to include explicit language about gender identity and expression, to better protect people who are often vulnerable to discrimination in Ontario.
Since 1999, the OHRC has recommended that gender identity be listed as a separate ground under the Code, to provide greater clarity that transgender people are equally protected under the law. In the past, gender identity was hidden in the human rights system under the ground of sex. Many housing and service providers, employers, communities and even government regulations routinely discriminated against people based on their gender identity.
But we were just one voice – this change reflects the tireless efforts of community advocates, organizations like the Trans Lobby Group, and elected officials from all political parties.
Adding the new Code grounds is important, but much work must still be done to make these rights a lived reality. The OHRC is currently consulting with the transgender community and working on an updated policy on gender identity and gender expression, which will be released in the coming year.
Something to celebrate at Toronto’s Pride Parade in June 2012: 50 years for the Human Rights Code, 25 years for the Code ground of sexual orientation, and the brand new Code grounds of gender identity and expression! With MPP Cheri DiNovo, left, and Barbara Hall, centre.
Changing the landscape – the XY decision
In April 2012, a significant decision from the HRTO in XY v. Ministry of Government and Consumer Services reinforced the human rights of transgender persons. The OHRC intervened in this case as part of its ongoing commitment to seek systemic solutions to eliminate discrimination based on gender identity.
The decision found that legislation requiring a person to have “transsexual surgery” before they can change the sex designation on their birth registration is discriminatory. It said that requiring surgery adds to the disadvantage and stigma experienced by members of this community, and reinforces the stereotype that transgender persons must have surgery to live in their felt gender. The HRTO also found that the goals of the Vital Statistics Act (VSA) would not be harmed by removing this requirement.
This decision confirms the OHRC’s position that gender identity should be recognized based on a person’s lived identity, and not depend on any surgical procedures.
The HRTO decision required the Ontario Ministry of Government and Consumer Services to:
- Stop requiring transgender persons to have “transsexual surgery” to change the sex designation on their birth registrations
- Revise the criteria for this change, within 180 days of the date of the decision, to remove the discriminatory effect
- Take reasonable steps to publicize these changes within the trans community within a further 30 days.
The HRTO left it to the Ministry of Government and Consumer Services to determine an appropriate alternative process for sex designation changes under the VSA. But it did cite the process currently used by the Ministry of Transportation for driver’s licences – which is based on a settlement the OHRC was involved with in 2005.
If a landlord is denying you a rental because you’re a trans person, it isn’t explicitly clear to them that you being a trans person is different from you just being a woman or a man. They understand the difference. They understand it I should say explicitly. They understand the difference that you’re not just like every other woman they’ve ever met or just like every other man, that there is a difference there.
So there should be a difference in the legislation so that you are protected when you are met by that landlord who refuses to rent you a space… when that employer refuses to hire you. They see you as somebody distinctively different. And in a sense, you are. That’s why the language needs to be explicit, to counter those instances of prejudice and abuse.
- Cheri DiNovo, MPP
The language must be explicit
The next step: changing the rules
To revise the requirements, the Ministry of Government Services (MGS) consulted with several organizations with expertise in gender identity issues and human rights. In July 2012, we added our comments to the consultation.
We agreed that adopting the Ministry of Transportation’s criteria for changing the sex designation on a driver’s licence, which requires a letter from a licensed physician, would be a better way to proceed. However, we also suggested that a physician’s letter should not be a necessary requirement. As society’s awareness and understanding of gender identity develops, we argued that people should be recognized based on their lived and internally-felt gender identity.
We recommended that MGS consider other criteria that are more respectful, less intrusive and less medicalized than a doctor’s letter. We suggested there were many persons – psychologists, social workers, nurses, school or college or university officials, therapists, employers, family members, the faith community or others – who could confirm that a person is transgender, or is living publicly in the gender that is consistent with the change they are requesting on their birth registration.
It is the social presentation of one’s felt gender, rather than a particular physical or sexual feature, genetic makeup or medical history that is at issue when considering a change to the sex designation on a document.
We also commented that:
- Criteria for people under age 18 should be no more stringent than the criteria for adults
- Although it would be rare, people should be allowed to change the sex designation on their birth registration more than once
- We need to question whether a sex designation on a “wallet” birth certificate is needed at all, and consider removing it or including it in a coded form in the certificate number, instead of being printed on the face of the document.
In Fall 2012, MGS adopted new criteria, which reflected several of our recommendations. In the new system, people need to provide a note from a practicing doctor or psychologist (including a psychological associate) stating that they have treated or evaluated the person and the change in designation is appropriate. However, MGS did not speak to the age concern – it still requires people to be 18 or older before they can change the designation, stating they need to further consult on this point.
We will continue to work with our partners and monitor MGS’s progress.
[T]rans people have been around since the beginning of time. We’ve been going to washrooms, we’ve been running races and competing in society and living in society… [M]y identity as Susan and as a trans woman, that’s really mostly all you need to know about me… My physician and I, my therapist and I and a few close friends know what’s going on inside of me. That’s where my boundaries are.
- Susan Gapka, former Chair, Trans Lobby Group
I’m a woman – that’s all you need to know