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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

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]

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.

2.1 The practice of FGM In 1991, the term "Female Genital Mutilation" was adopted at the Inter-African Committee Regional Conference on Traditional Practices Affecting the Health of Women and Children held in Burkina-Faso.[2] Female genital mutilation (FGM) is the collective term given to several different procedures that involve the cutting of female genitalia and permanently mutilating the sexual organs of young females for non-medical reasons.

3.1 International policy and law FGM has been condemned by numerous international and regional bodies, including the United Nations Commission on Human Rights, the United Nations International Children Emergency Fund (UNICEF), the Organization of African Unity and the World Medical Association. In addition to the broader issues of health and human rights of the child, FGM is gender-specific discrimination related to the historical suppression and subjugation of women that is unique to women and female children.

For some time now, Canada has experienced immigrant and refugee movements from countries in which FGM is commonly practised. In Toronto, community groups have estimated that there are 70,000 immigrants and refugees from Somalia and 10,000 from Nigeria, countries in which FGM is commonly practised.[22] As already noted, because of the nature of FGM, reliable statistics on the incidence of its practice are not available.

The Ontario Human Rights Code recognizes the inherent worth and dignity of every person in Ontario. The Preamble makes particular reference to the Universal Declaration of Human Rights and the inherent principles of dignity and equal and inalienable rights of the person. The creation of a society in which all persons can live and work in an environment that is free from discrimination is central to the policy objectives of the OHRC by virtue of the Code.

The OHRC is mandated to undertake public education activities directed at promoting a greater understanding of human rights principles and voluntary compliance with the provisions of the Code.

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

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.

The Code 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 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.

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.

In the past, employers often screened out applicants with disabilities based on medical information requested on application forms or obtained through pre-employment medical examinations. The OHRC believes that such questions, asked as part of the application screening process, violate subsection 23(2) of the Code.

The prohibition contained in subsection 23(2) of the Code is qualified by subsection 23(3), which allows an employer to ask at a personal interview whether an applicant has any disability-related needs that would require accommodation to enable her or him to do the essential duties of the job. The duty to provide such accommodation is discussed in more detail in the following section.

In some circumstances, the nature or degree of a person's disability may preclude that individual from performing the essential duties of a job. Subsection 17(1) provides that the right to equal treatment in employment is not infringed if the individual is incapable of performing or fulfilling the essential duties of the position because of a disability.

Section 17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.