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Section 30 of the Ontario Human Rights Code (Code) authorizes the Ontario Human Rights Commission (OHRC) to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code.[∗] The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code.

Section 1 of the Code provides that every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. Education and access to educational facilities are "services" under Code.

”Discrimination“ in human rights law does not simply mean treating someone differently. In human rights law, it means treating someone differently because of personal characteristics that are based on the grounds set out in the Code.

A scholarship or award is an advantage or benefit to persons seeking employment or access to further education and training. For this reason, scholarships and other academic awards result in a benefit to some students, while excluding others who may be historically disadvantaged. Therefore, scholarships that restrict eligibility on the basis of prohibited grounds in the Code are not permissible unless the award:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Please visit www.ontario.ca/humanrights for more information on the human rights system in Ontario. The Human Rights System can also be accessed by telephone at: Local: 416-326-9511 Toll Free: 1-800-387-9080 TTY (Local): 416-326-0603 TTY (Toll Free): 1-800-308-5561 To file a human rights claim, please contact the Human Rights Tribunal of Ontario at: Toll Free: 1-866-598-0322 TTY (Local): 416-326-2027 TTY (Toll Free): 1-866-607-1240 Website: www.hrto.ca

Introduction

The Commission has been aware of gender identity issues as far back as 1984. The Commission has received complaints from transsexuals in areas such as access to services, employment, lack of OHIP coverage for sex reassignment surgery, and access to medical care. However, the Commission has not specifically tracked the number of complaints connected with this issue.

The methodology for this discussion paper included: consultation with members and representatives of the transgendered community, review of jurisprudence and legislation in Canada and in other jurisdictions, literature review, and review of other human rights commission policies. Although the reviews of literature and case law were not exhaustive, the intention was to identify significant trends and developments related to the issue of gender identity.

Historical framework Transgendered people have existed throughout history. Several cultures have integrated behaviours related to sex and gender that today would be seen by North American culture as incongruent with socially acceptable behaviours.[8]

As with many emerging human rights issues, terminology is a powerful and, at times, a controversial tool. In consultation, one group of transsexuals expressed concern about the use of the term ‘transgendered’ to describe their experience because it covers so many different types of behaviour and can undermine the importance of individual or particular issues faced by transsexuals.

Transgendered people have clearly identified that they should be addressed based on the gender they present. Male to female transsexuals, transgenderists, and cross-dressers who present as women should be addressed as women. Female to male transsexuals, transgenderists and cross-dressers who present as men should be addressed as men.

Transgendered people come from all walks of life, and are represented in every race, class, culture, and sexual orientation. ‘Gender identity disorders’ have been identified in children as young as 3 years of age and in adults as old as 70. There is no definitive statistical information that speaks to the prevalence of ‘gender identity disorder’ in the general population. The statistical information that does exist varies both in terms of numbers and the sub-groups that are identified.

‘Coming out’ as a transsexual person connotes a cycle or pattern of acknowledgement that one’s gender identity does not match one’s birth assigned sex. That cycle may begin, for example, with acknowledgement to one’s self and move toward public acknowledgement. However, for many people, this process is not linear. It does not start with denial and end with acknowledgement. It may be a non-linear process where the individual struggles with denial and acknowledgement over a period of time until coming to terms with the true gender self.

Recently, there has been more attention to the issues faced by transgendered people. Occasionally, some sources of the mainstream media have begun to address these issues in a more constructive fashion[22] but myths and misinformation persist and only serve to reinforce stereotypes. Myths about transgendered people include:

Medical Treatment and Medicalisation of Identity (a) Gender Dysphoria/Gender Identity Disorder

(1) Introduction The framework for developing Commission policy in the area of gender identity is the Code, with the preamble being of particular importance:

Issues (1) The Ontario Human Rights Commission The Ontario Human Rights Commission is a central figure in the advancement of human rights in Ontario. The Commission is currently developing, implementing and operationalising policies and procedures related to transgendered issues.

Mr. Justice Sopinka once noted that human rights legislation is, often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.[76]

The following information provides a limited sampling of how ‘gender identity’ (and related terms) is viewed in various jurisdictions.

The insurance industry in Ontario is regulated by the Insurance Act (R.S.O. 1990, c. I.8). The Ministry of Finance regulates insurance services through the Financial Services Commission of Ontario (FSCO), an amalgamation of the former Ontario Insurance Commission, the Pension Commission and the Deposit Institutions Division of the Ministry of Finance.

As a regulator, FSCO does not have the authority to make regulatory or legislative changes, although FSCO may provide advice to the government in such matters. FSCO’s overall objective for insurance is to build public confidence in Ontario's insurance industry. It does this by:

There are six sections in the Code that have implications for the insurance industry (see Appendix). Section 3 prohibits discrimination in contracts, which would therefore prohibit discrimination in insurance contracts.

The Bates v. Zurich Decision To date, one of the most influential rulings relating to insurance and the Code has been the Supreme Court of Canada’s majority ruling in Bates v. Zurich[3] with respect to the "reasonable and bona fide" test under section 22 of the Code (section 21 at the time of the complaint).

The Commission is proposing to undertake the following actions and strategies in order to better promote the protection of human rights in insurance: