On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, received Royal Assent. As a result, “gender identity” and “gender expression” are now prohibited grounds of discrimination under the Canadian Human Rights Act (the “Act”). In particular, section 3(1) of the Act now reads:
Prohibited grounds of discrimination
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
This amendment brings the Act in line with the human rights legislation in a majority of the provinces and territories in Canada. Federally-regulated employers, and provincially-regulated employers in each of the provinces and territories identified below, are prohibited from discriminating against an employee and/or prospective employee on the basis of their gender identity and/or gender expression:
As with other grounds of discrimination, the Act does not include a definition of gender identity or gender expression. As stated by the Department of Justice, this is done “in order to ensure that the law would be as inclusive as possible… [G]rounds of discrimination are not defined in legislation but are left to courts, tribunals, and commissions to interpret and explain, based on their detailed experience with particular cases.” However, the Canadian Human Rights Commission will be publishing guidance in due course regarding these terms.
In 2014, the Ontario Human Rights Commission (OHRC) published a “Policy on preventing discrimination because of gender identity and gender expression”, which sets out the OHRC’s interpretation of the terms gender identity, gender expression, transgender, discrimination, and harassment. This Policy, while not legally binding, may serve as a starting point for federally-regulated employers when considering their duties under the Act.