Policy on discrimination and harassment because of gender identity

Approved by the OHRC: March 30, 2000

Please note: minor revisions were made in December 2009 to address legislative amendments resulting from the Human Rights Code Amendment Act, 2006, which came into effect on June 30, 2008.
Available in other accessible formats on request

** Please note that in 2012 “gender identity” and “gender expression” were added as grounds of discrimination in the Ontario Human Rights Code.  To reflect these changes, as well as other developments relating to human rights and gender identity, the Ontario Human Rights Commission is in the process of updating this policy.

1. Introduction

The Code^[1] states 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 Code aims 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.

The OHRC has developed policy statements and guidelines that cover many human rights issues. However, issues related to gender identity remain largely unresolved in policy, procedures, and law.

Gender identity is not an enumerated ground in the Code. However, the existing legal structure in the Code can support a progressive understanding of the ground of ‘sex’ to include ‘gender identity’ and protect individuals who are subject to discrimination or harassment because of gender identity. This approach toward the application of the Code has been accepted for some time and is well demonstrated by Mr. Justice McIntyre who said:

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment ... and give to it an interpretation which will advance its broad purposes [Emphasis added]. Legislation of this type is of a special nature, not quite constitutional, but certainly more than the ordinary^[2] ....

The right to equal treatment without discrimination or harassment because of sex extends to all persons. The OHRC has taken the policy position that this protection extends to persons because of gender identity. However, this policy focuses on persons whose gender identity diverges from their birth-assigned identity.

Human rights claims related to gender identity are made almost exclusively by transgenderists and transsexuals. There are, arguably, few groups in our society today who are as disadvantaged and disenfranchised as transgenderists and transsexuals. Fear and hatred of transgenderists and transsexuals^[3] combined with hostility toward their very existence are fundamental human rights issues. As the organization responsible for promoting and advancing respect for human rights in Ontario, and for protecting human rights and the public interest, the OHRC is in a unique position to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination because of gender identity. Mr. Justice Sopinka once noted:

Human rights legislation is amongst the most pre-eminent category of legislation. It has been described as having a "special nature, not quite constitutional but certainly more than the ordinary..." (Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 547). One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised.^[4] [Emphasis added].

^[1] Human Rights Code, R.S.O. 1990, c. H.19, as amended.
^[2]Ontario Human Rights Commission v. Simpsons-Sears Ltd. (1985), 7 C.H.R.R. D/3102 at D/3105 (S.C.C.).
^[3] Referred to as “transphobia”.
^[4] See Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321.