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Consultation survey: Revised Policy on discrimination and harassment because of gender identity and gender expression

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In 2000, the Ontario Human Rights Commission (OHRC) released a policy on gender identity and human rights, taking the position that the ground of sex could be used to protect transgender people from discrimination and harassment. The OHRC also called for an amendment to the Ontario Human Rights Code (the Code) to add “gender identity” as a prohibited ground of discrimination and harassment.

In 2012, two new grounds “gender identity” and “gender expression” were added as grounds of discrimination in the Code. Adding these grounds makes it clear that transgender people are entitled to the same legal protections from discrimination and harassment as everyone else. These grounds will also protect people who face harassment or discrimination because they are perceived to be trans or do not conform to stereotypical gender norms.

To reflect these new Code grounds, as well as other developments relating to human rights and gender identity, the OHRC is revising its Policy on discrimination and harassment because of gender identity and including discussion of gender expression.

This survey will help us get your input on defining the new grounds and other terms. Through the survey, we also invite you to talk about your lived experiences of discrimination, organizational responsibilities and ideas for advancing the rights of transgender people.

1. Defining the new grounds

The updated policy will provide definitions of the new grounds “gender identity” and “gender expression.” Defining the grounds will help clarify when the grounds apply and how the new grounds may intersect with other grounds. The OHRC has developed draft definitions of the new grounds and is interested in hearing your feedback.

Draft definitions:

Gender identity  refers to each person’s deeply felt internal and individual experience of gender. A person’s gender identity may or may not correspond with their birth sex, and with social norms of “male” and “female.” It includes an individual’s personal sense of their body (which may involve, if freely chosen, modifying body appearance or function by medical, surgical or other means) and other expressions of gender, such as dress, speech and mannerisms.

Gender expression refers to the external attributes, behaviour, appearance, dress, etc., by which a person expresses themselves and through which others perceive that person’s gender.

Gender identity and gender expression are linked. They can be seen along a continuum in relation to each other and to the ground of sex, which is also a Code protected ground. Code protections for the grounds of gender identity and gender expression apply to people who may identify as, or are perceived to be, trans, transgender, transsexual, intersex, cross-dressers, two-spirit and others. Gender expression may sometimes also link with the ground of sex or sexual orientation depending on the circumstances.

a) Please provide your feedback on these proposed definitions, including any suggested additions or changes.

2. Terminology

Understanding of transgender rights and the lived reality of transgender people has evolved considerably since the OHRC published its Policy on discrimination and harassment because of gender identity in 2000. The terms in that policy may not reflect the language transgender communities use today. The OHRC has drafted a revised glossary of terms to include in the updated policy and is interested in hearing your feedback.

Draft glossary of terms:

Sex: The biological classification of people as male or female. Sex is usually assigned by a doctor at birth and is based on a visual assessment of external anatomy.

Gender: The social classification of people as “masculine” or “feminine.” While sex is an assigned classification, gender is something that becomes evident in a social context.

Intersex: People who are not easily classified as “male” or “female,” based on their physical characteristics at birth or after puberty. This word replaces the inappropriate term “hermaphrodite.”

Crossdresser: A person who, for emotional and psychological well-being, dresses in clothing usually associated with the “opposite” sex.

Trans: An umbrella term used to describe people who, to varying degrees, do not conform to what society usually defines as a man or a woman. This inclusive category is used by many who also identify as transgender, transsexual, crossdressers and others.

Transgender: People whose life experience includes existing in more than one gender. This may include people who identify as transsexual, and people who describe themselves as being on a “gender spectrum” or as living outside the categories of “man” or “woman.”

Transsexual: A person whose biological sex assigned at birth does not match their gender identity. They may seek or undergo one or more medical treatments to align their bodies with their internally felt gender identity, such as hormone therapy, sex-reassignment surgery or other procedures. They may also undertake other changes to align their external attributes and appearance with their internally felt gender identity.  

Transition: Transitioning refers to a host of activities that trans people may pursue to affirm their gender identity. This may include changes to their name, dress, the use of gender pronouns, and may or may not include other physical changes such as the use of medication and surgery. Transitioning may take time to complete for some or may be an ongoing process for others.

Two-Spirit: An English language umbrella term for a range of people in some First Nations and Aboriginal cultures that identify as carrying both a male and female spirit. This term may include gender identity, gender expression and sexual orientation.

Transphobia: An irrational fear or hatred of trans people. Like other prejudices, it is based on negative stereotypes and misconceptions that are used to justify discrimination, harassment and violence toward trans people.

a) Please provide your feedback on the proposed glossary, including any suggested additions or changes.

3. Lived experience of transgender people

Many of the human rights issues discussed in the OHRC’s initial policy over 10 years ago remain relevant today. Research, media reports and human rights case law
show that transgender people experience negative stereotypes, discrimination and harassment that have a pervasive and often traumatic impact on many aspects of their daily lives. For transgender people, some of the fundamental things that many people take for granted, like jobs, housing and family life, are potentially at risk because they identify as trans or are seen to be trans.

The OHRC is interested in hearing from you about experiences of discrimination and harassment and what can be done to address them (accommodation issues are addressed in Part 4 below).

a) In what ways do people experience discrimination and/or harassment based on gender identity and gender expression?

b) What steps can be taken to prevent and address this discrimination and harassment?

c) Are there other important human rights issues or concepts related to gender identity and gender expression that should be added or changed to improve the policy?

4. Organizational responsibilities

Under the Code, organizations cannot discriminate based on gender identity and gender expression. They must deal with harassment complaints and must provide a non-discriminatory environment for trans people. Employers, unions, landlords and service providers also have a legal duty to accommodate people because of their gender identity and gender expression to the point of undue hardship. The goal of accommodation is to allow people to equally benefit from and take part in services, housing or the workplace.

The updated policy will have a new section on the duty to accommodate on the grounds of gender identity and gender expression, along with helpful examples and suggestions to guide rights-seekers, employers, service providers and others in the accommodation process.

The OHRC wants to hear from you about:

  • How employers, unions, and service providers can facilitate the transition process for employees or service users
  • Best practices in accommodation
  • Accommodation policies that address gender identity and gender expression

5. Organizational responsibilities 

The OHRC is interested in hearing from organizations to learn what information would be helpful to include in the policy to support them in developing anti-discrimination/ harassment and accommodation policies. If you are an employer, service provider, housing provider, union or an organization that represents one of these groups:

a) What information do you need to understand your organization’s responsibilities under the Code related to gender identity and gender expression?

b) What information do you need to help you establish effective anti-discrimination/harassment and accommodation policies related to gender identity and gender expression?

6. Conclusion

This consultation survey identifies several key issues that the OHRC would like your input on. We welcome any and all comments related to advancing the rights of transgender people as we revise the Policy on discrimination and harassment because of gender identity.

a) Do you have any other ideas or comments on advancing the human rights of transgender people in Ontario?

Providing your feedback

To write a submission to the OHRC, please use the questions above to guide your response. You can mail, fax or e-mail your written comments to us at:

Fax : 416-314-4533
Mail:  Ontario Human Rights Commission
Gender Identity Consultation Survey
Policy, Education, Monitoring and Outreach Branch
180 Dundas Street West, 8th Floor
Toronto, Ontario
M7A 2R9

Alternative formats of this survey are available upon request.

Please provide your comments to the OHRC no later than May 24, 2013.

Please provide contact details, including your name, organization (if applicable), address, phone number and email address (optional). Information provided during the consultation is subject to the requirements of the Freedom of Information and Protection of Privacy Act. Personal information will be used for the purposes of this project only, and will remain confidential.

If you have any questions about the consultation process, contact the OHRC by telephone at: 416-314-4507, or 1-800-387-9080 (follow the instructions to speak to staff about public education).

TTY contact information: 416-326-0603 or Toll Free: 1-800-308-5561

Complete the gender identity and gender expression survey online.