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5. Emerging human rights protections

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5.1 Ontario

In 1999, the OHRC took the position that the ground of sex under human rights law could be interpreted to include the right of transgender people to be free from discrimination and harassment.

In 2000, the OHRC released its ground breaking Policy on discrimination and harassment because of gender identity (the original version of this policy). The OHRC and others successfully litigated that policy over the years, with tribunals and courts recognizing more and more the human rights of trans people.

During this time, the OHRC continued to call for explicit recognition of gender identity as a protected ground of discrimination in Ontario’s Human Rights Code.[17] In 2012, Ontario added the grounds “gender identity” and “gender expression” to the Code.[18]

5.2 Other Canadian jurisdictions

Some other jurisdictions in Canada also provide protection for trans people. Human rights legislation in Manitoba and the Northwest Territories includes the protected ground of “gender identity.” Nova Scotia’s human rights legislation includes both “gender identity” and “gender expression.” In jurisdictions without specified grounds, discrimination because of gender identity is being addressed under the ground of “sex.”[19]

5.3 International standards

Internationally, understanding of legal rights for trans people has advanced in recent years. The 2007 Yogyakarta Principles, developed by a group of international human rights experts, detail how international human rights law applies to gender identity and sexual orientation in a range of areas including discrimination in work, health, education and access to justice.[20]

Several statements from international human rights organizations have recognized the fundamental human right to self-identify one’s gender, and the need for protection against discrimination based on gender identity and gender expression.[21]

In 2011, the United Nations Human Rights Council adopted a resolution, supported by 85 countries including Canada, to study the issue of human rights, sexual orientation and gender identity. Among other things, the resolution expressed concern about acts of violence and discrimination against individuals because of their gender identity. In a report later that year, the United Nations High Commissioner for Human Rights emphasized that governments have an obligation to protect people from discrimination because of gender identity.[22]

[17] See OHRC Discussion paper, supra note 14. Also see the OHRC’s statement to the Standing Committee on Social Policy on Bill 33, Toby's Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), online: Legislative Assembly of Ontario

[18] See Bill 33, supra, note 9. Before the addition of the grounds gender identity and gender expression, discrimination against trans and transgender people had been addressed under the grounds of ”sex” and “disability.” The use of the ground disability to address claims of discrimination against trans people has been recognized as problematic because it can imply a demeaning and medicalized approach to understanding gender identity.

[19] In addition, in 2013, the Parliament of Canada passed a bill [Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity)] that would amend Canada’s Human Rights Code to include the ground “gender identity”. The bill also includes proposed changes to the Criminal Code to recognize violent crimes motivated by transphobia as hate crimes. At the time of this policy, Bill C-279 was before the Senate and had not yet received a final vote to become law. Under the bill, “gender identity” means… the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth. See Parliament of Canada:

[20] Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2007), online: Yogyakarta Principles

[21] See International Commission of Jurists, Sexual orientation and gender identity in human rights law, references to jurisprudence and doctrine of the United Nations human rights system – 4th edition (2010), online: International Commission of Jurists!lightbox/0/. Also see: Human Rights, Sexual Orientation and Gender Identity Res.AG/RES. 2504 (XXXIX-O/09), 4th Sess., Organization of American States (OAS),(2009), online: OAS

[22] See Human rights, sexual orientation and gender identity HRC Res. 17/19, UN HRCOR, 17th Sess., UN Doc. A/HRC/RES/17/19 (2011); Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity: Report of the United Nations High Commissioner for Human Rights, UN HRCOR, 19th Sess., UN Doc. A/HRC/19/41, (2011) online: United Nations at 5.


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