Gender identity and gender expression (brochure)

Ontario’s Human Rights Code

The Ontario Human Rights Code (the Code) provides for equal rights and opportunities, and freedom from discrimination. The Code recognizes the dignity and worth of every person in Ontario, in employment, housing, facilities and services, contracts, and membership in unions, trade or professional associations.

People who are discriminated against or harassed because of gender identity are legally protected. This includes transsexual, transgender and intersex persons, cross-dressers, and other people whose gender identity or expression is, or is seen to be, different from their birth-identified sex.

What are gender identity and expression?

Gender identity is linked to a person’s sense of self, and the sense of being male or female. A person’s gender identity is different from their sexual orientation, which is also protected under the Code. People’s gender identity may be different from their birth-assigned sex, and may include:

Transgender: People whose life experience includes existing in more than one gender. This may include people who identify as transsexual, and people who describe themselves as being on a “gender spectrum” or as living outside the categories of “man” or “woman.”

Transsexual: People who were identified at birth as one sex, but who identify themselves differently. They may seek or undergo one or more medical treatments to align their bodies with their internally felt identity, such as hormone therapy, sex-reassignment surgery or other procedures.

Intersex: People who are not easily classified as “male” or “female,” based on their physical characteristics at birth or after puberty. This word replaces the inappropriate term “hermaphrodite.”

Crossdresser: A person who, for emotional and psychological well-being, dresses in clothing usually associated with the “opposite” sex.

Trans: An umbrella term used to describe individuals who, to varying degrees, do not conform to what society usually defines as a man or a woman.

Gender expression refers to the external attributes, behaviour, appearance, dress, etc. by which people express themselves and through which others perceive that person’s gender.

Discrimination and harassment

Discrimination happens when a person is treated unequally or differently because of their gender identity or gender expression and it results in a disadvantage to that person. Discrimination includes any action, intentional or not, that treats someone less favourably than other members of society because of the person’s identified or perceived gender identity or gender expression.  
 
This can be obvious or subtle. Discrimination can also happen on a bigger, systemic level, such as when a rule or policy may appear to be neutral, but is not designed in an inclusive way. This may harm the rights of people because of their gender identity or gender expression.
Harassment is a form of discrimination. It includes comments, jokes, name-calling, or behaviour or display of pictures that insult or demean you because of your gender identity or gender expression.
 
No person should be treated differently while at work, at school, trying to rent an apartment, eating a meal in a restaurant, or at any other time, because of their gender identity or gender expression.

Example: A transsexual person answers an ad for an apartment. The superintendent says there are no units available, even through there are.

Example: An employee tells his manager that he cross-dresses. His manager says he will no longer qualify for promotions or job training, because customers and co-workers will not be comfortable with him.

Organizations cannot discriminate, must deal with harassment complaints, and must provide a non-discriminatory environment for trans people. This also applies to “third parties,” such as people doing contract work or who regularly come into contact with the organization. People should be recognized as the gender they live in, regardless of whether they have undergone any type of surgery. Trans individuals should also be given access to washrooms and change facilities on this basis, unless they specifically ask for accommodation (such as for their own safety or privacy reasons).

Example: A transsexual woman is not allowed to use the women’s washroom at her place of work. Her manager defends this by explaining that other staff have expressed discomfort. This workplace needs a policy that clearly states that a transsexual employee has the right to use this washroom, while providing education to resolve staff concerns and to prevent future harassment and discrimination.

The duty to accommodate

Under the Code, employers, unions, landlords and service providers have a legal duty to accommodate people because of their gender identity. The goal of accommodation is to allow people to equally benefit from and take part in services, housing or the workplace.

Accommodation is a shared responsibility. Everyone involved, including the person asking for accommodation, should cooperate in the process, share information, and jointly explore accommodation solutions.

Example: A transgender man raises safety concerns due to threats in the men’s locker room at his gym. The gym manager takes steps against the harassers, and explores possible solutions with the client, such as privacy partitions for all shower and change stalls in the men’s locker room, or a single-occupancy shower and change room. They provide him with access to the staff facilities until a final solution is found.

Example: A trans woman is strip-searched by male police, even though she has asked to have female officers do this type of search. The police service says that a male officer must be involved in the search because the person has not had sex reassignment surgery. The Human Rights Tribunal of Ontario has ordered that a trans person who is going to be strip-searched must be given three options: the use of male officers only; the use of female officers only; or a search involving both male and female officers.

Keeping information private

An employer or service provider must have a valid reason for collecting and using personal information, such as from a driver’s licence or birth certificate, that either directly or indirectly lists a person’s sex as different from his or her lived gender identity. They must also ensure the maximum degree of privacy and confidentiality. This applies in all cases, including employment records and files, insurance company records, medical information, etc.

For more information

Policy on Discrimination and Harassment Because of Gender Identity 

To make a human rights complaint – called an application – contact the Human Rights Tribunal of Ontario at:

Toll Free: 1-866-598-0322
TTY Toll Free: 1-866-607-1240
Website: www.hrto.ca

To talk about your rights or if you need legal help, contact the Human Rights Legal Support Centre at:

Toll Free: 1-866-625-5179
TTY Toll Free: 1-866-612-8627
Website: www.hrlsc.on.ca