OHRC. Ontario Human Rights Commission. (2014). Policy on preventing discrimination because of gender identity and gender expression. http://www.ohrc.on.ca/sites/default/files/Policy%20on%20preventing%20discrimination%20because%20of%20gender%20identity%20and%20gender%20expression.pdf
Introduction:
Transgender individuals represent diverse demographics and contribute to communities across Ontario and globally.
Despite this, they face pervasive discrimination, prejudice, harassment, and violence, especially during the transitioning process.
Discrimination against transgender individuals impacts their daily lives, health, and well-being significantly.
The Trans PULSE Project's 2010 survey in Ontario revealed barriers in employment and healthcare access, with many transgender individuals living below the poverty line.
Discrimination based on gender identity and expression violates human dignity, recognized by courts and tribunals as substantial and disturbing.
Transgender individuals often avoid public spaces due to fear of harassment, leading to significant mental health challenges and a high prevalence of suicidal thoughts and attempts.
Despite challenges, there's growing recognition globally and legally of the importance of respecting gender identity and expression.
Ontario's Human Rights Code was amended in 2012 to include gender identity and expression as prohibited grounds of discrimination, providing legal protections for transgender individuals.
About this policy:
This policy updates the Ontario Human Rights Commission's original Policy on discrimination and harassment based on gender identity (2000).
It aims to promote the dignity and worth of transgender individuals, ensure equal rights and opportunities without discrimination or harassment, and foster understanding and mutual respect.
The policy helps organizations understand and meet their legal obligations under the Code to prevent and address discrimination based on gender identity and expression.
It's based on research, tribunal and court cases, and consultations with transgender individuals and organizations.
Gender identity and gender expression:
The Code doesn't define these terms but their understanding evolves from legal decisions, social science research, and common usage.
Gender identity is an individual's internal sense of gender, which may differ from their birth-assigned sex.
Gender expression is how a person publicly presents their gender, including behavior, appearance, and chosen name/pronoun.
Transgender is an umbrella term for individuals with diverse gender identities and expressions.
Gender non-conforming individuals don't adhere to stereotypical gender norms.
Lived gender identity refers to the gender a person feels internally and expresses publicly in daily life.
Bias and prejudice:
Transgender individuals face stigma, prejudice, and bias due to societal stereotypes and fears.
Stereotyping leads to discrimination based on misconceptions and incomplete information.
Transphobia, aversion or hatred towards trans people, leads to discrimination, harassment, and violence.
Cisnormativity assumes everyone is cisgender, perpetuating discrimination against transgender individuals.
5. Emerging human rights protections:
Ontario's Human Rights Code protects transgender individuals from discrimination in various social areas.
Other Canadian jurisdictions and international human rights standards also recognize and protect gender identity and expression.
Ontario’s Human Rights Code:
The Code protects transgender individuals from discrimination and harassment in areas like goods/services, housing, employment, contracts, and vocational associations.
Discrimination is established when a protected characteristic like gender identity or expression is a factor in adverse treatment.
Transgender individuals have the right to self-identify their gender, and organizations must respect their lived gender identity.
Forms of Discrimination:
Discrimination can occur in various forms, including direct, indirect, and subtle discrimination.
Direct discrimination involves exclusion, withholding benefits, or imposing extra burdens without legitimate reasons.
Indirect discrimination occurs through another person or organization, such as instructing a temp agency not to send trans workers.
Subtle discrimination, though less overt, is equally harmful and may be detected by examining patterns of behavior.
Intersecting Grounds:
Discrimination can intersect with multiple Code grounds, leading to unique forms of discrimination.
Trans individuals may experience discrimination based on race, family status, sex, or disability, impacting access to housing, employment, or services.
Stereotypes around intersecting identities contribute to disadvantage.
Association:
Discrimination may target individuals due to their association with trans or gender non-conforming individuals, such as experiencing harassment because of a roommate's identity.
Gender-based Harassment and Sexual Harassment:
Harassment, including gender-based and sexual harassment, is prohibited under the Code.
Trans and gender non-conforming individuals may experience harassment based on their gender identity, expression, or sex.
Examples of harassment include derogatory language, refusal to use correct pronouns, spreading rumors, and unwelcome touching or violence.
Poisoned Environment:
A single severe incident or ongoing unwelcome behavior can create a poisoned environment, constituting discrimination.
Organizations have a duty to maintain environments free from discrimination and to address and eliminate poisoned environments.
Systemic Discrimination:
Discrimination can be systemic, embedded in policies, practices, or culture, leading to disadvantage.
It may overlap with overt and adverse effect discrimination, compounding issues.
Organizations must proactively prevent systemic discrimination by inclusive policy design and regular review to remove barriers.
Accomodation:
Responsibilities of the Person Seeking Accommodation:
Notify the accommodation provider (employer, landlord, service provider, etc.) when Code-related needs requiring accommodation arise.
Provide relevant information about their needs and adhere to agreed-upon standards once accommodation is provided.
Cooperate to the best of their ability throughout the accommodation process.
Responsibilities of Accommodation Providers:
Accept requests for accommodation in good faith, unless evidence suggests otherwise.
Request only necessary information to clarify the nature and extent of accommodation needed.
Ensure confidentiality of information related to accommodation and share it only with relevant parties.
Act promptly and actively seek solutions.
Cover appropriate costs related to accommodation.
The principle of keeping information about someone's trans identity confidential is emphasized due to the stigma and stereotypes often faced by trans individuals.
Regarding reasonable bona fide requirements, the Code prohibits discrimination resulting from seemingly neutral requirements that have a negative effect on individuals identified by Code grounds. However, organizations may justify such requirements if they demonstrate that accommodating the person would cause undue hardship. The legal test involves proving that the requirement:
Is rationally connected to the function being performed.
Was adopted in good faith with the belief that it is necessary to fulfill its purpose or goal.
Is reasonably necessary to accomplish its purpose or goal, to the point where accommodation without undue hardship is impossible.
An organization failing to participate in the accommodation process may have met its duty if the person requesting accommodation did not sufficiently participate, refused, or could not participate due to disability or other Code-related factors. However, organizations should consider adjustments if the accommodation is ineffective.
Competing rights situations may arise when accommodation requests affect the rights of others. Organizations must address these situations, considering legislative exemptions and the significance of the interference with others' rights.
Undue hardship in accommodating trans individuals involves assessing cost, outside sources of funding, and health and safety requirements. Organizations must provide objective evidence to prove undue hardship, considering factors such as the size of operation, recoverability of costs, and mitigation of risks. They should also explore options like phasing in costs or utilizing reserve funds.
11. Complaints and reprisal:
Transgender and gender non-conforming individuals experiencing discrimination or harassment should raise the issue with relevant authorities like employers, unions, landlords, or service providers.
If the problem persists or isn't addressed, they can seek advice from the Human Rights Legal Support Centre or file a complaint with the Human Rights Tribunal of Ontario within one year of the last incident.
The Code protects against reprisal or retaliation for claiming rights under it, even if no formal complaint has been made.
People associated with those experiencing discrimination are also protected from reprisal.
12. Corporate liability:
Organizations have a legal obligation to maintain a discrimination-free environment, facing penalties if they fail to prevent or respond to Code violations.
They must address underlying issues like systemic barriers or organizational cultures condoning discrimination.
Vicarious liability holds organizations responsible for discriminatory acts or omissions by employees or agents.
Tribunals and courts may find organizations liable for failing to respond appropriately to discrimination or harassment.
13. Preventing and responding to discrimination:
Organizations should develop and implement barrier prevention plans, anti-harassment policies, accommodation procedures, and internal complaints systems.
Education and training programs should address stereotypes and discrimination faced by trans people.
Consideration should be given to specific needs during transitioning, including identity documents, washrooms, privacy, etc.
13.2 Transitioning:
Transitioning refers to the process individuals undertake to live their felt gender identity.
Accommodation may be needed during transition, such as access to private facilities or time off for medical procedures.
13.3 Identity documents:
Discrepancies on official documents can create barriers and risks for trans individuals.
International standards and case law confirm that surgery is not a requirement to change gender designation on identity documents.
Criteria for changing name or gender should be respectful and non-intrusive.
13.4 Washrooms and change rooms:
Trans individuals have the right to access facilities based on their lived gender identity.
Organizations should accommodate without undue hardship, ensuring inclusive design and accessibility.
13.5 Dress codes:
Dress codes must accommodate individuals' expressed gender, allowing for flexibility and inclusivity.
Policies should not be based solely on gender stereotypes.
Shelter Services: Transgender individuals often face discrimination and barriers when accessing shelter services. This includes feeling unsafe in gender-segregated shelters and being subjected to invasive questions about their transition status. Shelters should accommodate individuals based on their lived gender identity and provide education to staff and clients on transgender-related issues.
Healthcare Services: Transgender individuals encounter obstacles in accessing healthcare services, with many reporting a lack of understanding and respect for their gender identity from healthcare providers. Policies and procedures should be developed to prevent discrimination and ensure access to appropriate care.
Education System: Transgender youth experience prejudice and discrimination in educational settings, including harassment and lack of support from teachers and peers. Educational institutions have a responsibility to create inclusive environments and accommodate the needs of transgender students.
Law Enforcement and Justice Services: Transgender individuals are particularly vulnerable in encounters with law enforcement and correctional institutions. Policies should be developed to address discrimination, harassment, and violence faced by transgender people in these settings.
Other Services: Transgender individuals are protected from discrimination in various other areas, including retail stores and other service providers. Businesses have a duty to accommodate the needs of transgender customers.
Housing (13.11):
Trans individuals may face discrimination from landlords when seeking housing or exercising their rights as tenants.
The Ontario Human Rights Code ensures equal treatment in housing without discrimination based on gender identity or expression.
Landlords must not deny housing or discriminate against tenants based on gender identity or expression.
Landlords must address discrimination or harassment within the housing environment.
Employment (13.12):
Trans individuals report facing discriminatory treatment in employment, including being turned down for jobs or fired because of their trans identity.
Discrimination in employment includes unfounded stereotypes or negative assumptions about trans individuals.
The Ontario Human Rights Code guarantees equal treatment in employment without discrimination based on gender identity or expression.
Employers must ensure that overt and subtle discrimination against trans individuals does not occur during hiring or employment.
Trans employees transitioning publicly may face discrimination, such as being fired or demoted instead of being accommodated.
Vocational Associations (13.13):
The Ontario Human Rights Code ensures equal treatment regarding membership in trade unions, occupational associations, or self-governing professions without discrimination based on gender identity or expression.
Trans individuals have the right to fair treatment within vocational associations.