Toby’s Act

In an important development in human rights legislation, “gender identity” and “gender expression” are now officially protected grounds under Ontario’s Human Rights Code. Ontario is the first jurisdiction in North America to explicitly guarantee a right to equal treatment without discrimination because of gender identity or gender expression.  Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression) received royal assent on June 19, 2012.[1]  This act amends the Ontario Human Rights Code to include “gender identity or gender expression” as a prohibited ground of discrimination with respect to services, goods and facilities, accommodation, contracting, employment, and membership in a trade union, trade or occupational association or self-governing profession.

What is gender identity or gender expression under the HRTO?

Notably, Toby’s Act does not explicitly define the meaning of “gender identity or gender expression.”  Employers can draw guidance in this regard from the Ontario Human Rights Commission, which has previously described gender identity in its “Policy on Discrimination and Harassment Because of Gender Identity” as follows:

Gender identity is linked to an individual’s intrinsic sense of self and, particularly the sense of being male or female.  Gender identity may or may not conform to a person’s birth-assigned sex.  The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender.

At birth, a child is assigned a gender by a health care professional based on observation of the child’s genitalia.  Society makes the assumption that based on this medical assessment a child with grow up to exhibit correspondingly masculine or feminine behaviours and appearances.  However, this is not always the case.  A person’s felt identity or core identity may differ in part or in whole from their birth-assigned sex. Individuals whose birth-assigned sex does not conform to their gender identity include transsexuals, transgenderists, intersexed persons and cross-dressers.

A person’s gender identity is fundamentally different from and not determinate of their sexual orientation.[2]

Although the Policy quoted above provides employers with some guidance regarding the meaning of “gender identity or gender expression,” it is by no means an exhaustive definition.  For example, although the Policy refers to gender identity as being linked to the “sense of being male or female,” some individuals may identity as both or neither gender. 

Moreover, in addition to the categories of transsexuals, transgenderists, intersexed persons and cross-dressers articulated in the Policy, some individuals identify as bigender, androgyne or genderqueer.  The terminology will no doubt continue to evolve and employers should be mindful of this evolution over time.

What does the change in legislation mean for employers?

Discrimination against transgendered persons has long been regarded as discrimination on the basis of disability, sex or both.[3]  This principle was recently affirmed in the 2012 HRTO decision of XY v. Ontario (Government and Consumer Services) which held that legislation requiring persons to have “transsexual surgery” before they could change the sex designation on their birth registration was discriminatory.[4]

The purpose behind explicitly adding the ground of gender identity and expression to the Code was articulated by the Ontario Human Rights Commission in October 1999 in a Discussion Paper entitled “Toward a Commission Policy on Gender Identity”:

By adding the ground “gender identity” to the Code, there would be no doubt legally or politically that transgendered people have the same protections as everyone else.  Unfortunately, using the ground of ‘sex’, while it does not properly convey the meaning of ‘gender identity’, is the only reasonable alternative available at present until such time as the legislature sees fit to amend the Code.[5]

Given that human rights tribunals have, over the last several years, consistently interpreted existing human rights statutes to prohibit discrimination on the basis of gender identity and expression, it may be that this legislative change will result in only minor practical changes to employers.  However, in the interests of prudence, employers should take this opportunity to carefully review their policies and procedures and to consider how these policies and procedures may impact on transgendered employees or employees who identify as having other gender identity concerns. 

Obvious policies to consider are those dealing with appearance, dress code and uniforms.  Also, policies or practices relating to membership in gender designated facilities or gender designated groups within the workplace should be carefully reviewed. Issues regarding washrooms and change rooms are likely to arise. The issue of transgendered individuals seeking access to women’s washroom and women-only gym facilities has already been judicially considered in both British Columbia and Ontario human rights jurisprudence.[6]   Finally, a seemingly simple issue, the appropriate use of pronouns, can be an extremely sensitive matter where gender identity issues are in play.  Employers should be cognizant of their duty to accommodate by using appropriate pronouns. 

As stated by the Ontario Human Rights Commission, “there are, arguably, few groups in our society today who are as disadvantaged and disenfranchised as transgenderists and transsexuals.”[7] The inclusion of gender identity and gender expression under the Ontario Human Rights Code is an acknowledgment by the legislature of the need to provide explicit protection to this disadvantaged group of individuals and employees.  Although there may be few practical changes at the outset of the introduction of this legislation, as time passes these amendments may well have the potential to significantly transform the culture of many workplaces.