The framework for developing Commission policy in the area of gender identity is the Code, with the preamble being of particular importance:
it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of 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 able to contribute fully to the development and well-being of the community and the Province.
The Commission has developed policy statements and guidelines for many of the grounds in the Code. However, for the most part, the human rights of transgendered persons have not been addressed in policies, procedures, or law.
Since March 1998, the Commission’s working position has been that the existing legal structure set out in the Code can support a progressive understanding of the law and thereby protect transgendered people effectively. Although gender identity is not explicitly set out in the Code, this progressive understanding is rooted in the profound relationship between sex and gender. This approach was recently successfully used by the British Columbia Human Rights Tribunal in a case involving a complaint from a individual who although living full-time as a woman but not having undergone sex reassignment surgery, was not allowed to use the woman’s washroom in a nightclub. In ruling in favour of the complainant the tribunal found that “transsexuals in transition who are living as members of the desired sex should be considered to be members of that sex for the purposes of human rights legislation” and concluded by stating that “discrimination against a transsexual constitutes discrimination because of sex.”[50]
Given that there is no express ground of gender identity, there is no impediment in the Code to an interpretation of sex discrimination that includes gender discrimination. In other words, ‘sex’ is not limited to biological/genetic sex, but has been extended to include gender characteristics. The Commission's 1996 Policy on Sexual Harassment and Inappropriate Gender-based Comment and Conduct is official Commission policy and already supports an analogous view. Areas of particular relevance to gender identity are emphasised in the following excerpt:
Freedom from sexual harassment and other forms of unequal treatment expressed through demeaning comments and actions based on gender is, therefore, a fundamental human right... Sex discrimination may also include harassing comments or conduct made to a person because of his or her gender.
[The following] list...should assist in identifying what may constitute sexual harassment or inappropriate gender-related comments and conduct:
- gender-related comments about an individual's physical characteristics or mannerisms;
- unwelcome physical contact;
- suggestive or offensive remarks or innuendoes about members of a specific gender;
- propositions of physical intimacy;
- gender-related verbal abuse, threats, or taunting;
- leering or inappropriate staring;
- bragging about sexual prowess;
- demands for dates or sexual favours;
- offensive jokes or comments of a sexual nature about an employee, client, or tenant;
- display of sexually offensive pictures, graffiti, or other materials;
- questions or discussions about sexual activities;
- paternalism based on gender, which a person feels undermines his or her self respect or position of responsibility;
- XIII. rough and vulgar humour or language related to gender.[51] (Emphasis added.)
In the Shaw [52] case, the Commission successfully argued before a board of inquiry that issues related to gender should be included under the ground of sex. This case dealt with a woman who was subjected to non-sexual remarks but those remarks nonetheless were intended to make her feel less attractive and therefore were related to her sex and stereotypes about being a woman.
Traditionally, many human rights commissions, including Ontario’s, used the ground of disability or sexual orientation when a complaint related to gender identity was made. The Commission has discontinued the practice of automatically using these grounds unless the complainant specifically makes such requests. This change occurred as a result of Commission staff developing a better understanding of transgendered issues.
[50] Sheridan v. Sanctuary Investments Ltd. et al. January 8, 1999 (B.C. Human Rights Tribunal) from <http://www.bchrt.gov.bc.ca/sheridan2.htm>.
[51] Ontario Human Rights Commission, Policy on Sexual Harassment and Inappropriate Gender Based Comment and Conduct (1996).
[52] Shaw v. Levac Supply Ltd. (1990) 14 C.H.R.R. D/36 (Ont. Bd. of Inquiry).