Gender Identity and Gender Expression Protection Under the Law

On May 17, 2016, the federal government tabled Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code to add gender identity and gender expression to the list of prohibited grounds of discrimination.

If enacted, Bill C-16 would:

• Amend the Canadian Human Rights Act to add gender identity and gender expression as prohibited grounds of discrimination in the areas of employment, housing, health services, and other accommodations.
• Amend the Criminal Code to prohibit hate propaganda against groups that are identifiable based on gender identity or gender expression, and allow longer sentences for criminal offences motivated by hate based on gender identity or gender expression. This means that it would be illegal to produce propaganda that promotes violence or hatred against persons based on their gender identity or gender expression.

The Bill does not define gender identity or expression, however, the government has interpreted to mean that the terms “gender identity” and “gender expression” includes a wide range of gender diversity.

Gender identity is each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from the gender typically associated with their sex assigned at birth. When a person’s gender identity is different from the gender typically associated with their sex assigned at birth, this is often described as transgender or simply trans. Gender identity is not the same as a person’s sexual orientation.

Gender expression is the way in which people publicly present their gender. It is the presentation of gender through such aspects as dress, hair, make-up, body language, and voice.

The understanding of these and other related terms is evolving from tribunal and court decisions, social science research as well as self-identity and common everyday use.

Moreover, the government has stated that, “gender diversity is not a type of gender identity-rather, it is an umbrella term that includes all definitions of gender, including gender identity, gender expression, and transgender. Transgender persons face high levels of discrimination, including employment barriers: according to a study conducted in 2010, 18 percent of participants had been refused employment because they were transgender, and the median income of all respondents was $15,000 per year. In addition, transgender persons face a high risk of violent crime: according to a study conducted in 2010, 20 percent of respondents had been physically or sexually assaulted, though many had not reported these assaults to the police.”

The proposed amendments is intended to affirm the rights of transsexuals, transgenderists, intersexed persons, cross-dressers and other groups who routinely suffer discrimination based on the expression of their gender or the gender identity they experience.

Federally-regulated employers covered under the Canada Human Rights Act (the CHRA applies only to matters that fall within federal jurisdiction) must remember that they will be responsible for discriminatory comments their employees make on their own or at the employer’s request and they must make themselves and their employees aware of discrimination and human rights responsibilities based on gender identity and gender expression.

Organizations should learn about the needs of trans people, look for barriers, develop or change policies and procedures and undertake training. This will help make sure trans people and other gender non-conforming individuals are treated with dignity and respect and enjoy equal rights and freedom from discrimination.

While similar bills to C-16 have been proposed in Parliament before, none have been passed into law yet. They were all private member’s bills and this one is a government bill, thus, has more chances of it being successful.

Changes to human rights legislation have already occurred in several provinces and territories in Canada. In Alberta, Ontario, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador, “gender identity” and “gender expression” are listed as protected grounds in human rights legislation, and “gender identity” a protected human right ground in Manitoba, the Northwest Territories, and Saskatchewan. On May 31, 2016, Quebec tabled Bill 103, An Act to strengthen the fight against transphobia and improve the situation of transgender minors in particular, with the goal of amending the Quebec Charter of Human Rights and Freedoms, to explicitly prohibit discrimination based on gender identity (although it includes other provisions related to other Acts).