3. Pregnancy and other grounds of discrimination under the Code

3.1. Pregnancy and intersecting Code grounds

A woman’s experience of discrimination based on pregnancy may differ based on other aspects of her identity. There are unique and persistent negative stereotypes about pregnant women who are parenting on their own, or who are young, have a disability, are receiving social assistance, are racialized[21] or Aboriginal, or are lesbian or bisexual. For example, young mothers, especially when they are parenting on their own, may be stereotyped as irresponsible and lacking parenting skills, and may face discrimination in housing. Similarly, some women experience negative attitudes if they are pregnant or have had a child “out of wedlock.”[22] This could be discrimination based on sex, family status and marital status.

As well, some pregnant women may have unique needs and experience specific barriers related to other aspects of their identities. For example, there may be a lack of appropriate and accessible services and supports for pregnant women who have disabilities.

Mothers who are young, parenting on their own, have a disability,[23] or are racialized or Aboriginal are disproportionately poor,[24] and therefore especially vulnerable to the effects of discrimination.[25]

3.2. Pregnancy and family status

Human rights protections against discrimination based on pregnancy are related closely to those based on family status. The Code defines family status as “the status of being in a parent and child relationship.”[26] This ground extends protection to persons who are providing care within a parent-child “type” of relationship, including both eldercare and care for young children.[27] Situations may arise where discrimination based on pregnancy overlaps with discrimination based on family status. For example, a new mother in the immediate post-natal period will be covered by the grounds of both pregnancy and family status.

Pregnancy discrimination and family status discrimination are often based on the same stereotypes and negative attitudes, such as some employers’ perception that mothers are less capable, committed and competent than other employees, or some landlords’ negative attitudes towards children. Employers or housing providers sometimes discriminate based on pregnancy to avoid dealing with a woman’s family status-related needs at a later date.

Many women who are pregnant also already have children; they may therefore experience discrimination based on pregnancy and family status at the same time.[28]

Men may also experience discrimination based on family status because of their relationship with women who are pregnant, or because they have accommodation needs relating to caring for a newborn.[29]

3.3. Pregnancy, gender identity and gender expression

A person’s gender identity and gender expression are protected by the Code.[30] This policy also applies to people who are trans or gender diverse and experience discrimination based on pregnancy and breastfeeding. Trans or gender diverse people who are pregnant or nursing may be vulnerable to unwanted attention, disrespectful treatment, or inappropriate conduct or comments from others because they do not conform to gender norms. Negative perceptions persist that children may be harmed by a trans parent.[31]

In employment, some trans men[32] whose lived gender identity[33] is male may have to disclose that they are trans because they need to ask for a pregnancy accommodation, which may make them vulnerable to discrimination. Some trans people report that their specific lived experiences with gender were invisible to some health care workers providing fertility or pregnancy support.[34]

3.4. Pregnancy and domestic abuse

Women’s experience with pregnancy can intersect with experiences of gender-based violence. There is research indicating that pregnant women are at greater risk of domestic violence, and that violence may increase during pregnancy.[35]

Women who are facing violence in the home can end up being disciplined at work, or even losing their jobs because of rigid absenteeism policies. Landlords that discriminate against lone mothers with children can place women who are attempting to leave abusive relationships at serious risk. They may end up returning to an abusive relationship because they have literally nowhere else to go.[36]

[21] Race is a social construct. The Report of the Commission on Systemic Racism in the Ontario Justice System defined racialization as “the process by which societies construct races as real, different and unequal in ways that matter to economic, political and social life.” Commission on Systemic Racism in the Ontario Criminal Justice System, Report of the Commission on Systemic Racism in the Ontario Justice System (Toronto: Queen’s Printer for Ontario, 1995) (Co-Chairs: D. Cole & M. Gittens) at 40-41. For more information, see OHRC, Policy and guidelines on racism and racial discrimination (2005), online: OHRC www.ohrc.on.ca/en/policy-and-guidelines-racism-and-racial-discrimination.

[22] Discrimination may also occur when an employer, housing provider or service provider disapproves of a woman’s personal circumstances or her relationship with the father of the child. In Ballendine v. Willoughby (No. 5), 2009 BCHRT 33 (CanLII), the British Columbia Human Rights Tribunal (BCHRT) found that a woman experienced discrimination based on pregnancy when her employment was terminated in part because the employer was upset with the relationship that led to the pregnancy and was concerned about its impact in the workplace. In Johnston v. Poloskey (2008), CHRR Doc. 08-079, 2008 BCHRT 55, where the BCHRT found that a woman had been discriminated against because of pregnancy, the Tribunal found that one of the reasons that the employer (a husband and wife) decided not to continue the woman’s employment was because they disapproved of her being pregnant and unmarried, even though they knew and were friendly with the man who was her long-term common-law companion and the father of her child.

[23] Women can also be protected from discrimination based on sex and disability if they experience adverse treatment that is related to pregnancy complications or a disability arising from pregnancy. See Purres, supra note 15.

[24] For example, see Amber Gazso & Ingrid Waldron, “Fleshing out the Racial Undertones of Poverty for Canadian Women and their Families: Re-envisioning a Critical Integrative Approach” (2009) 34(1) Atlantis 132; May Luong, “Life after Teenage Motherhood” (May 2008) no. 75-001-X Perspectives online: Statistics Canada www.statcan.gc.ca/pub/75-001-x/2008105/pdf/10577-eng.pdf; The Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities reported that in 2008, “Female-headed lone-parent families were particularly at risk of low income and had a low-income rate of 20.9%, compared to 7.0% among male-headed lone-parent families…The same year, 36% of all children living in low-income households, approximately 218,000 children, lived in female-headed lone-parent families.” See Report of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, Federal Poverty Reduction Plan: Working in Partnership Towards Reducing Poverty in Canada (2010) at 22 (Chair: Candice Hoeppner) online: Parliament of Canada www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4770921&Language=E&Mode=1&Parl=40&Ses=3&File=24; Marika Morris & Tahira Gonsalves, Women and Poverty Third Edition, Canadian Research Institute for the Advancement of Women, online: Canadian Research Institute for the Advancement of Women http://criaw-icref.ca/WomenAndPoverty (retrieved April 10, 2014).

[25] The HRTO has recognized some of these particular vulnerabilities when deciding on remedies. In Maciel v. Fashion Coiffures Ltd. (No. 3) (2009), CHRR Doc. 09-2373, 2009 HRTO 1804 (CanLII), the HRTO noted the applicant’s vulnerability as a young person. In both Maciel and Graham, supra note 7, the HRTO considered the effects on the claimants as single parents. 

[26] Ontario Human Rights Code, R.S.O. 1990, c. H-19, s. 10(1).

[27] See further, OHRC, Policy and guidelines on discrimination because of family status (2007), online: OHRC www.ohrc.on.ca/en/policy-and-guidelines-discrimination-because-family-st....

[28] See Brown v. PML and Wightman (No. 4), 2010 BCHRT 93 (CanLII).

[29] In McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 (CanLII), the HRTO found that a man experienced discrimination based on family status when he was fired from his job due to absences related to his wife’s serious pregnancy-related complications, and because he had to take his premature baby to a medical appointment.

[30] “Gender identity” refers to 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” refers to how a person publicly presents or expresses 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 people express their gender. Others perceive a person’s gender through these attributes. For more information, see the OHRC’s Policy on preventing discrimination based on gender identity and gender expression, supra note 2.

[31] “[T]he notion that a child will be harmed by a trans parent lingers in child custody decision-making, in family planning policy and practice, and in public opinion, and is experienced by trans parents as discrimination….” Jake Pyne, Transforming Family: Trans Parents and their Struggles, Strategies and Strengths (2012), online: LGBT Parenting Connection www.lgbtqparentingconnection.ca/resources.cfm?mode=3&resourceID=444bca3c-ba19-213b-d94e-e941220871c1&subjectID=59, at 8.

[32] A person whose sex assigned at birth is “female” and identifies as a man may identify as a trans man (female-to-male FTM).

[33] A person’s “lived gender identity” refers to the gender a person internally feels (“gender identity” along the gender spectrum) and publicly expresses (“gender expression”) in their daily life including at work, while shopping or accessing other services, in their housing environment or in the broader community.

[34] Pyne, supra note 31 at 5, 22 and 25.

[35] See Public Health Agency of Canada, Woman Abuse – Overview Paper (2009) online: Public Health Agency of Canada www.phac-aspc.gc.ca/ncfv-cnivf/publications/femviof-eng.php (retrieved February 3, 2014); Muriel McQueen Fergusson Centre for Family Violence Research, Family Violence and Pregnancy, Fact Sheets (2004) Series 11/16 Pregnancy, online: http://fvps.ca/womanabuseresearch/factsheet11.pdf.;  While Canadian data on physical abuse during pregnancy is limited, the 1993 Violence Against Women Survey found that 21% of women experiencing abuse were assaulted during pregnancy. In 40% of these cases, the abuse started during pregnancy. See Statistics Canada, Measuring Violence against Women, Statistical Trends 2006 (2006), online: Statistics Canada www.statcan.gc.ca/pub/85-570-x/85-570-x2006001-eng.pdf

[36] These issues were raised during the OHRC’s 2005 public consultations on discrimination based on family status.  See OHRC, The Cost of Caring: Report on the Consultation on Discrimination on the Basis of Family Status (2006) online: OHRC www.ohrc.on.ca/en/cost-caring-report-consultation-discrimination-basis-family-status at 10.