Equality rights for transgender individuals in Canada.

• Author: Bowal, Peter

Introduction

The most recent personal attributes added to the list of prohibited grounds of discrimination in Canadian human rights are "gender identity" and "gender expression." This is generally viewed as facilitating gender diversity and, in particular, establishing legal rights and protections for transgender persons, who are also described as gender non-conforming.

Alberta is the latest province to add these prohibited grounds of discrimination to the legislation to protect individuals in employment, residential accommodation, the provision of facilities and services, contracts, and in public advertising and signage. "Gender identity and gender expression" were added by Bill 7, the Alberta Human Rights Amendment Act which received royal assent in 2015.

This article will describe what these prohibited grounds mean and how the fourteen various jurisdictions in the country have legislated with respect to the issue.

Definitions

The terms "gender identity" and "gender expression" are consistently used in the human rights realm. However, they are terms of recent vintage and are not widely understood or distinguished.

Human rights legislation does not define "gender identity" and "gender expression". However, such legislation (as in Alberta) does at least partially define other prohibited grounds, such as age, family status, marital status, mental disability, physical disability, religious beliefs and source of income. The interpretation of these terms will ultimately fall to judges.

In the meantime, some human rights tribunals themselves have administratively offered definitions according to which they will operate. For example, the Ontario Human Rights Commission issued a non-legally binding interpretation bulletin (http://www.ohrc.on.ca/en/gender-identity-and-gender-expression-brochure) that defines "gender identity" and "gender expression" as follows:

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 their birth-assigned sex. Gender identity is fundamentally different from a person's sexual orientation. Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun are also common ways of expressing gender. An...