What does it mean to be transgender and why do pronouns matter?
People who are transgender come from all walks of life. Yet they are some of the most disadvantaged individuals in society. Trans people routinely experience discrimination, harassment and even violence because their gender identity or gender expression is different from their birth-assigned sex.
Gender identity is each person’s internal and individual sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. Personal names and pronouns are two fundamental ways we express gender and how others perceive our gender. Traditional gender pronouns (she/her, he/him) do not fit everyone’s gender identity.
The words people use to describe themselves and others are very important. The right terms can affirm identities and challenge discriminatory attitudes. The wrong ones can disempower, demean and reinforce exclusion. This is as true today for non-binary gender pronouns like “they” as it was for the evolution of the feminist movement and the use of the term “Ms” or a married woman’s maiden name.
What does the Ontario Human Rights Code say about gender issues?
Ontario added explicit protection for gender identity and gender expression to the Code in 2012. The Code prohibits discrimination and harassment against trans people in employment, services (including education, policing, health care, restaurants, shopping malls, etc.), housing, contracts and membership in vocational associations. The Code does not specify the use of any particular pronoun or other terminology.
Is it a violation of the Code to not address people by their choice of pronoun?
The law recognizes that everyone has the right to self-identify their gender and that “misgendering” is a form of discrimination.
As one human rights tribunal said: “Gender …may be the most significant factor in a person’s identity. It is intensely personal. In many respects how we look at ourselves and define who we are starts with our gender.” The Tribunal found misgendering to be discriminatory in a case involving police, in part because the police used male pronouns despite the complainant’s self-identification as a trans woman.
Refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity, or purposely misgendering, will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education. The law is otherwise unsettled as to whether someone can insist on any one gender-neutral pronoun in particular.
Gender-neutral pronouns may not be well known. Some people may not know how to determine what pronoun to use. Others may feel uncomfortable using gender-neutral pronouns. Generally, when in doubt, ask a person how they wish to be addressed. Use “they” if you don’t know which pronoun is preferred. Simply referring to the person by their chosen name is always a respectful approach.
Doesn’t this interfere with freedom expression?
Our lawmakers and courts recognize the right to freedom of expression, and at the same time, that no right is absolute. Expression may be limited where, for example, it is hate speech under criminal law.
The Supreme Court has also found that some limits on free speech are justifiable to protect people from harassment and discrimination in social areas like employment and services. On the other hand, decision-makers have said that freedom of expression is much less likely to be limited in the context of a public debate on social, political or religious issues in a university or a newspaper.
In situations where equality rights and freedom of expression must be balanced, context is critical. The words that are chosen matter: the more harmful the words, the further they are from the core values of freedom of expression. Other important considerations are the vulnerability of the group affected by the speech, and the degree of impact on their ability to access employment, services and housing on an equal basis.
What if I have a complaint?
Organizations have a legal duty to maintain an environment free from discrimination and harassment because of gender identity and expression. They must investigate complaints and take steps to prevent and respond to violations of the Code.
People who believe they have experienced discrimination or harassment should try to raise the matter with the organization involved. They can ask the Human Rights Legal Support Centre for advice or make a complaint – called an application – to the Human Rights Tribunal of Ontario (HRTO) within one year from the last alleged incident. The HRTO is an independent quasi-judicial (court-like) body that hears and makes decisions on claims of discrimination. A tribunal or court may order financial or other remedies.
The OHRC does not have a mandate to deal with individual complaints or to make decisions about alleged violations of the Code. The OHRC conducts research and public consultation, develops policies and promotes compliance with the Code through public education and other communication. The OHRC also has powers to undertake public inquiries and can seek to initiate applications at the HRTO or request to intervene in cases at tribunals and higher courts on human rights matters in the broader public interest.
Where can I get more information?
The OHRC’s Policy on preventing discrimination because of gender identity and gender expression is based on the Code and case law. The policy deals with a range of issues and says organizations must respect a trans person’s right to be treated in accordance with their lived gender identity. While the OHRC’s policy describes some common terminology, it does not specify what specific gender-neutral pronouns to use. The policy also recognizes that the meaning and use of gender related terms can evolve and change over time.
There are many resources available that provide helpful guidance on policies, practices and use of terminology for respecting the identity of trans people. For example:
- The Toronto District School Board has prepared Guidelines for the Accommodation of Transgender and Gender Non-Conforming Students and Staff.
- Ontario’s Ministry of Community Safety and Correctional Services’ policy on the admission, classification and placement of transgender inmates also recognizes a person’s self-identified gender, chosen name and pronouns, as well as their housing preference.
- Egale Canada Human Rights Trust, a national charity promoting lesbian, gay, bisexual and trans human rights, provides helpful advice on how to refer to someone who is trans.
- The 519 and Rainbow Health Ontario have also prepared a helpful media reference guide on how to discuss and refer to trans and gender-diverse people in an accurate and respectful way; available online.
- (Policy Document) Policy on preventing discrimination because of gender identity and gender expression
- (Brochure) Gender identity and gender expression
- (Backgrounder) Talking about gender identity and gender expression
- Glossary for understanding gender identity and gender expression
- (Videos) Living Rights: Gender identity and gender expression
 Dawson v. Vancouver Police Board (No. 2), 2015 BCHRT 54 (CanLII) at para. 1.
 The Oxford English Dictionary recognizes the growing acceptance of the word “they” as a singular pronoun in various contexts, including for people who identify as neither male nor female (see online: https://en.oxforddictionaries.com/definition/they).
 For example, the Supreme Court of Canada upheld a human rights decision that found a schoolteacher’s off-duty anti-Semitic comments undermined his ability to fulfill his functions as a teacher and poisoned the educational environment for his students (Ross v. New Brunswick School District No. 15,  1 S.C.R. 825). In another case, the British Columbia Court of Appeal found that the British Columbia College of Teachers could discipline a teacher for articles and letters to the editor that were discriminatory, linked to his position as a teacher and which showed that he was committed to fulfilling his public and professional responsibilities in an intolerant and discriminatory way. His statements undermined the core value of non-discrimination in the public education system (Kempling v. British Columbia College of Teachers, 2005 BCCA 327 (CanLII)).
 For example, discriminatory or harassing comments made directly to someone who is receiving a service or in their employment are likely to be limited by human rights protections (Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 (CanLII) at para. 31-32).
 Saskatchewan (Human Rights Commission) v. Whatcott,  1 SCR 487 at para. 119.
 See also Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 (CanLII); upholding 2014 ONSC 2169 (CanLII), dismissing an application for judicial review of decisions of the Human Rights Tribunal of Ontario, 2012 HRTO 1393 (CanLII) and 2013 HRTO 180 (CanLII). The HRTO found that a union President’s online blog about a supervisor did not amount to discrimination with respect to her employment. The HRTO balanced the competing rights at issue (freedom of expression and association and equality) to determine the scope of the Code’s protection in the circumstances. The HRTO noted that union comments on workplace issues are close to the core of freedom of expression and association and noted the absence of Code-related effects in the workplace.