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Special report: gender identity and gender expression

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New policy protects human rights of trans and gender-diverse people

The OHRC launched an im­portant new policy in Spring 2014, the Policy on preventing discrimination because of gender identity and gender expression. This policy fol­lowed the 2012 amendment to the Human Rights Code to add the grounds of gender identity and gender expres­sion. This change provides protection for one of the most vulnerable and margin­alized communities in society.

“It has been a long struggle to have these rights clearly protected in the Code,” said OHRC Chief Commissioner Barbara Hall. “Adding these grounds makes it clear that trans people are entitled to the same legal protections as other groups under the Code. The challenge now is to send a message across Ontario that discriminating against or harassing people because of their gender identity or gen­der expression is against the law. This policy provides the tools to do this.”

We consulted with sever­al hundred members of the trans community, healthcare workers, housing providers, social service organizations and educators, and did exten­sive research to make sure the policy reflected today’s lived reality for trans persons and people of diverse genders.

The policy looks at cur­rent issues around recognizing lived gender identity, changing identity on official documents, transitioning, dress codes and accessing facilities. It provides tools, practical scenarios and information that can be ap­plied to everyday situations that trans people face in housing, at work or when accessing services.

The policy offers organi­zations the tools to remove barriers and respect human rights. It also includes:

  • clarifications of terminology
  • information on key issues affecting the community
  • in employment, educa­tion, services and the justice system
  • review of case law and clarity on rights and obligations
  • guidelines on how to meet the needs of trans persons and people of diverse genders, including a best practices checklist.

We launched the policy at the 519 Church Street Community Centre in Toronto with more than 200 people attending. It was a powerful atmosphere as trans people and their allies celebrated their success, while acknowl­edging the work ahead to make new written rights real lived rights.

Future launches are planned for Sudbury and Ottawa in the Fall. Major outreach ini­tiatives will include training, printed and electronic publications, an eLearning module and webinar.

This year in history

Taking trans rights to the courts Michelle Hogan, Martine Stonehouse, A.B.  and Andy McDonald v. Her Majesty the  Queen in Right of Ontario as represented by  the Minister of Health and Long-Term Care

Before October 1, 1998, the provincial government provided public funding for sex reassignment surgery to persons who were approved for that surgery by the Gender Identity Clinic at what is now the Centre for Addiction and Mental Health (CAMH). The Clinic would grant its approval if satisfied that, among other things, the person had successfully completed a real-life test by living publicly in the desired gender role for two or more years.

Effective October 1, 1998, the government removed public funding for sex reassignment surgery for all persons who had not already received Clinic approvals for surgery. Four people who received Clinic approvals for sex reassignment surgery after October 1, 1998, challenged the government’s decision to remove public funding. We argued that the decision to remove funding amounted to discrimination in services because of sex and/or disability.

In November 2006, an HRTO panel ruled that the government’s removal of public funding for sex reassignment surgery was not itself discriminatory, but that it did discriminate against persons who had started medically-supervised transitions before October 1, 1998, and who received approvals for surgery from the Clinic within six years of having started their transitions. These persons should have received public funding for surgery, to allow them to complete the gender transitions they had begun at a time when public funding for surgery was still available.

The HRTO ruled that only three of the four people had been subjected to discrimination, and ordered the government to provide them with funding for surgery, and with general damages ranging from $25,000 to $35,000 per person.

Transit accessibility: calling all stops

In July 2007, in Lepofsky v. Toronto Transit Commission (TTC), the HRTO found that the TTC’s failure to ensure announcements of all stops on buses and streetcars violated the human rights of persons with disabilities, particularly riders with visual impairments. This decision showed that a policy of only announcing stops on request was not enough – the only way to ensure an accessible system was to call out all stops.

We took this message across Ontario, and asked all transit services to review their accessibility policies and practices and tell us what steps they were taking to make sure all transit stops were announced. After much discussion, and after making HRTO complaints against several services, calling out all stops is now the standard across the province – a standard that is also reflected in regulations under the Accessibility for Ontarians with Disabilities Act.

The XY decision: changing the landscape for gender identity

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. It ordered the Ontario Ministry of Government and Consumer Services (MGCS) to stop requiring transgender persons to have “transsexual surgery” to change the sex designation on their birth registrations, and to revise its criteria to reflect this.

In Fall 2012, MGCS adopted new criteria. 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.

Moving forward with transit

In 2011, the OHRC reached settlements with the cities of Hamilton, Greater Sudbury and Thunder Bay in three transit-based cases at the Human Rights Tribunal of Ontario. We filed the complaints in 2009 to increase accessibility for riders with vision disabilities by ensuring the transit services called out all transit stops.

All three transit providers took action and now have automated call out systems that incorporate backup procedures should the systems malfunction. The transit providers monitor their systems regularly to make sure they are working properly, and provide training for all drivers. As part of the cities’ commitment to accessible service, they have also helped transit riders learn about the stop announcement systems, and provided ways for riders to raise any concerns or get more information.

We also continued to follow up with both Variety Village and the Toronto Transit Commission about the Variety Village bus stop. This new stop made Variety Village, in Scarborough, more accessible for people with disabilities who rely on transit.

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