Toward a policy on gender identity

Introduction

One of the great myths of our culture is that at birth each infant can be identified as distinctly `male' or `female' (biological sex), will grow up to have correspondingly `masculine' or `feminine' behavior (public gender), live as a `man' or a `woman' (social gender role), and marry a woman or a man (heterosexual affective orientation). This is not so. There is much disagreement as to why this is not so, but a significant number of people in fact do not fit this simple idea of biological gender destiny.[1]

This quote serves as a reminder that our knowledge and understanding of human rights has evolved over time. It is also a reminder that we must remain open to considering the most effective methods the Ontario Human Rights Commission (the “Commission”) can use to give full meaning to the Ontario Human Rights Code[2] (the "Code").

The preamble of the Code provides that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and feels able to contribute to the community.

Research and consultation conducted by Commission staff in preparation for this paper shows that transgendered people experience negative stereotypes that have a pervasive and often traumatic impact on virtually every aspect of their lives. They are shunned by society and regarded with suspicion. Their jobs, housing and family lives are as threatened by the process of ‘coming out’ as by involuntary discovery. These are all issues that favour the development of a progressive policy to protect the human rights of transgendered persons within the legal framework of the Code.

Over the last two decades, there has been a growing societal awareness of people whose gender identity is different from accepted social norms. These people include pre- and post-operative transsexuals; transgenderists (transsexuals who have chosen not to pursue sex reassignment surgery) intersexed people, cross-dressers, female impersonators, and others who blur traditional gender lines. Along with emerging visibility is a growing appreciation of the problems that they face. Community, media and web sites dedicated to gender identity report incidents of employment discrimination, harassment, violence, denial of services, higher risk of suicide, addiction and poverty.

By developing policy in this area, the Commission can:

  • promote the dignity and equality of transgendered people,
  • ensure that transgendered people are protected by the Code,
  • promote awareness and prevent discrimination,
  • identify areas of systemic discrimination,
  • develop strategies to eliminate discrimination, and
  • dispel myths that foster deep prejudice.

British Columbia was the first Canadian jurisdiction to propose ‘gender identity’ as a formal ground for protection in human rights law, and other jurisdictions are moving in this direction. [3] Australian discrimination laws as well as several American municipalities and states recognize transgendered people and have included the ground of gender identity or similar concepts in their human rights laws.[4]


[1] Lees, L., Gender: Exploring Diversity And Acceptance <http://www.msu.edu/~lees/handout.html> Text Copyright 1997-9 by Lisa Josephine Lees.
[2]Human Rights Code, R.S.O. 1990, c. H.19.
[3] See BC Human Rights Commission, Human Rights for the Next Millennium, (January 1998), recommendation 6.
[4] See Appendix 1.