Human Rights Legislation to Include Gender Identity in Manitoba and Ontario, Among Others

Manitoba and Ontario recently added gender identity and/or gender expression to their human rights legislation as prohibited grounds of discrimination.

Ontario private member’s Bill 33, Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012, received royal assent on June 19, 2012, and is now law and in force.

The Manitoba government gave royal assent to passed Bill 36, the Human Rights Code Amendment Act to add gender identity to the list of protected characteristics. On June 14, 2012, Tthe Bill received royal assent; it is now law and in force.

The changes amend Ontario and Manitoba’s Human Rights Codes to specify that every person has a right to equal treatment without discrimination because of gender identity. In Ontario, it includes gender expression.

Individuals who experience more complex gender identification can, unfortunately, face discrimination and harassment on a daily basis. For example, persons who are going through gender reassignment, requiring they live in the sex they are transitioning to, often encounter discrimination when they use public or workplace washrooms.

Though the Bills add no new definitions to the Codes, GLAAD (the Gay and Lesbian Alliance Against Defamation) offers the following:

  • Gender identity: One’s internal, personal sense of being a man or a woman (or a boy or a girl). For transgender people, their birth-assigned sex and their own internal sense of gender identity do not match.
  • Gender expression: An external manifestation of one’s gender identity, usually expressed through “masculine,” “feminine” or gender-variant behaviour, clothing, hairstyle, voice or body characteristics. Typically, transgender people seek to make their gender expression match their gender identity, rather than their birth-assigned sex.

These changes apply to employment among other areas. Employers are specifically prohibited from discriminating against transgendered persons in employment. You may have to think of such issues in your recruitment and hiring process, and violence/harassment prevention and accommodation policies

In addition, specifically in Manitoba,

The Human Rights Code Amendment Act adds “social disadvantage” to protect individuals who are, or are perceived to be undereducated, underemployed, homeless or living in inadequate housing.

The definition of social disadvantage contains an objective component. A person’s standing in society is often determined by his or her occupation, income or education level, or family background. It also has a subjective component, associated with the perceptions that are drawn from these various objective points of reference.

Discrimination on the basis of social disadvantage only occurs where the discrimination is based on a negative bias or stereotype related to that social disadvantage. When it is alleged that a person has engaged in discrimination on the basis of social disadvantage, the onus of proving that the discrimination is based on a negative bias or stereotype lies on the person making the allegation.

The amendments also streamline the handling of human rights complaints in Manitoba in several ways:

  • The Manitoba Human Right Commission may sit in panels to consider complaints
  • The commission and the adjudicator at a hearing are authorized to explore the settlement of complaints
  • An adjudicator can deal with similar complaints involving different parties in a single hearing
  • The position of chief adjudicator is created
  • Fines under the Code will be increased, but are not set in the Bill
  • The time allowed for filing a complaint or starting a prosecution under the Code is increased from six months to a year
  • The Code will allow the commission to determine its own practice and procedure and forms
  • No action or proceeding may be brought against the commission or any of its members, officers or employees, an adjudicator or any other person acting under the authority of this Code for anything done, or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under the Code

Furthermore, discrimination has been clarified to include any act or omission that results in discrimination, regardless of:

a. The form of the act or omission; and

b. Whether the person responsible for the act or omission intended to discriminate.

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