Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Expression), 2012 (the Act) received royal assent on June 19, 2012.
The Act has amended the Ontario Human Rights Code (Code) in two material respects:
- The Code now provides for the right to equal treatment without discrimination on the basis of gender identity and gender expression in respect of employment; services; goods and facilities; accommodation; contracting; and membership in a trade union, trade or occupational association or self-governing profession.
- The Code now provides individuals with the right to be free from harassment because of sexual orientation, gender identity or gender expression with respect to accommodation and employment.
As a result of these amendments, Ontario is one of the first jurisdictions in North America to extend specific human rights protections to transgendered, transsexual and intersexed persons.
Although the Code has not been amended to include definitions of “gender identity” or “gender expression,” the Ontario Human Rights Commission’s Policy on Discrimination and Harassment Because of Gender Identity (the Policy) gives an indication that these terms will be interpreted broadly.
The Policy recognizes that a person’s gender identity may be different from his or her birth-assigned sex and also recognizes that a person’s gender identity is different from his or her sexual orientation. The Policy defines gender identity as:
…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 associated with gender identity include self-image, physical and biological appearance, expression, behavior and conduct, as they relate to gender.
A person’s gender identity is fundamentally different from and not determinative of their sexual orientation.
The recent amendments have important implications for Ontario employers. Employers may receive a greater number of requests for accommodation in the workplace on the basis of gender identity or gender expression (e.g., with respect to the use of change facilities). Employers should implement procedures to ensure that an employee’s gender identity, if this is disclosed to the employer, remains private and confidential. To do otherwise may result in a violation of the Code. Finally, employers should consider updating their harassment and discrimination policies and procedures to incorporate this significant amendment to the Code.