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Breaking Grounds: Gender Identity and Human Rights Legislation in Newfoundland and Labrador and Canada

The Issue

There is no explicit protection against discrimination or harassment on the grounds of gender identity and expression in the Newfoundland and Labrador Human Rights Act, 2010 ("the Act"). Local activists affirm that this has led to injustice and confusion for trans individuals and the general population of the province1. When the Government hosted public consultations in 2010, prior to the implementation of the new Act, it was the position of the Newfoundland and Labrador Human Rights Commission (the Commission) that a term such as 'gender identity' and/or 'gender expression' should be included as a prohibited ground under section 9 of the Act. Such an amendment would help deliver the message of inclusion for individuals identifying as trans and would contribute to public education and dialogue.

When the new Act came into force, there was no express provision for the rights of trans individuals. The Commission wishes to clarify that in Newfoundland and Labrador, as in some provinces across Canada, claims dealing with discrimination or harassment on these grounds can be – and have been – accepted under the enumerated ground of sex2.

Discrimination against people who identify under the umbrella term of trans has also been accepted under the grounds of disability3. There is a trend, however, away from a medical understanding and towards the idea that issues of discrimination affecting trans individuals are based on a "…lack of congruence between the various indicators of sex"4. In a discussion paper prepared by the National Association of Women and the Law, the authors promote the acceptance of a separate ground for gender identity to grant "visibility" to transgendered people in the law5.

'Gender identity' across Canada

Some jurisdictions, such as Ontario, Nova Scotia, the Northwest Territories and Manitoba have amended provincial human rights' legislation to include the term gender identity and, in some cases, gender expression.

There are many other current examples in Ontario, and across Canada. For instance, there is a lot of controversy about setting up Gay Straight Alliances in Ontario Catholic schools, when the school board believes this is contrary to Catholic teaching. And we have seen other creed-based issues such some groups being allowed to use secular public school space for religious events such as prayer.

As of June 2012, sections 1-7 of the Ontario Human Rights Code now include gender identity and gender expression as separate enumerated grounds6. These terms were left undefined by the legislature and remain mostly undefined by case law. However, some cases before the Ontario Tribunal have relied on the Ontario Human Rights Commission's "Policy on Discrimination and Harassment Because of Gender Identity" for discussion and interpretation7. The OHRC is currently engaged in consultations with community partners and other human rights groups to update this document and develop new definitions

Recently, Nova Scotia amended its Human Rights Act by passing the Transgendered Persons Protection Act in December 20128. This amends the Act to explicitly include gender identity and gender expression as separate enumerated grounds9. In the Human Rights Act of the Northwest Territories, the preamble and s. 5(1) list gender identity as a separate prohibited ground10. Also, section 9(2) of the Manitoba Human Rights Code lists gender identity as a prohibited ground. Although these amendments do not include definitions for either 'gender identity' or 'gender expression', the Human Rights Commission of Manitoba has also published a guideline with definitions.

In March 2013, the House of Commons approved a similar amendment to the Canadian Human Rights Act11. Gender identity, in that document is defined as: "…the individual's deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth."12 As of the time of writing, the Bill has not gone further than second reading at the Senate.

The draft working definitions developed by the OHRC offer a thorough explanation of the new grounds. They state:

"Gender identity" refers to each person's deeply felt internal and individual experience of gender. A person's gender identity may or may not correspond with their birth sex, and with social norms of "male" and "female". It includes an individual's personal sense of their body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, such as dress, speech and mannerisms.

"Gender expression" refers to the external attributes, behaviour, appearance, dress, etc., by which a person expresses themselves and through which others perceive that person's gender13.

If the Government of Newfoundland and Labrador decides to amend the prohibited grounds listed in section 9 of the Act, the Commission can provide advice on proper definitions and terminology that can be adopted.

Precedent in Canada

Cases involving discrimination against individuals who identify as trans deal with a wide range of issues. In Forrester v Peel (Regional Municipality) Police Services Board, the complainant was successful in a case of discrimination on the basis of sex when a police strip search was conducted improperly14.

Kavanagh v Canada (Attorney General) confirmed that sex-reassignment surgery cannot be prohibited while an individual is incarcerated, but the penal institution's duty to accommodate does not guarantee that pre-operative15 transsexuals are placed in the institution of their target gender16.

The case of Hogan v Ontario (Minister of Health and Long-Term Care) dealt with discrimination on the grounds of sex when the province of Ontario delisted sex-reassignment surgery and it ceased to be an insured benefit covered by the provincial health insurance plan17. In this case, the successful complainants had already begun the process towards achieving the surgery, and the Tribunal found that it would not have been unduly hard for the province to have accommodated these individuals.

A commonly litigated area in this field involves access to facilities which are exclusively male or female. In Sheridan v Sanctuary Investments Ltd, discrimination was established when staff at a bar prohibited a pre-operative transgender from accessing the washroom of her target gender18. MacDonald v Downtown Health Club for Women involved the exclusion of a transgender female from a women-only gym. The complainant in that case withdrew her complaint before a decision was made19.

In Vancouver Rape Relief Society v British Columbia (Human Rights Commission) a trans individual initially won her case after being denied a volunteer position in a female-only space because she had not lived her whole life as a female20. That decision was overturned and later affirmed by the British Columbia Court of Appeal (denied leave to appeal to the SCC)21. Although discrimination on the basis of sex had been shown, the Society was exempt under the British Columbia Human Rights Code because of its non-profit status. Section 41 of the BC Code offers protection for non-profits contravening the Code, if the primary purpose of the organization is the promotion of the interests of one of the protected groups22.

Gender identity and the Act of Newfoundland and Labrador

Section 11(1) of the Act provides for equal treatment without discrimination in the delivery of services and use of facilities, but allows for some restrictions by sex on the ground of public decency (section 11(3)(b))23.

This section allows for separate washrooms, examination areas, change rooms and other services that are men-only or women-only. According to case law in Canada, trans individuals should be treated in a manner consistent with the gender that they present and should be provided access to the appropriate facilities24.

Similar to the BC Code referenced above, the Act has a provision in section 11(3)(d) which creates an exemption to potential claims of discrimination for organizations whose primary work is serving the interests of a group of persons identified by one of the prohibited grounds25. As of the date of writing, this section has not been used to justify the exclusion of a transgender individual in a single-gender space. The Act also includes an exemption for non-profit employers wishing to hire from an exclusive group, if the nature of the employment makes it a reasonable and genuine qualification26.

Duty to Accommodate: One Rule Does Not Fit All

If the expression of an individual's gender identity affects him/her in areas protected under the Act, they have a right to request accommodation of their needs. It is the responsibility of the person/business who is the recipient of the request to make all reasonable efforts to accommodate the individual, whether the recipient is a landlord, employer, or service provider. That person must then explore and assess all options available to see if the individual can be accommodated without undue hardship.

What is Accommodation?

Accommodation means making changes/adaptations to meet an individual's needs. It may mean, for example, implementing a gender neutral dress code which is applied consistently for all employees.

The individual requesting accommodation also has responsibilities. A person requesting accommodation has a duty to provide relevant information about their specific needs. Where an option for accommodation is presented, the person requiring accommodation does not have a right to refuse an option that reasonably meets his/her needs.

Accommodation is best served where parties communicate their needs effectively and cooperatively. Compromise is necessary on both sides so that parties can achieve their objectives.

For examples of accommodation, please see the Guidelines re: Gender Identity and Gender Expression on the Commission's website.

Undue Hardship: What is the Extent of the Duty to Accommodate?

The duty to accommodate persons on the ground of gender identity continues up to the point of undue hardship. Undue hardship is a legal term, the threshold of which varies depending on the facts of the particular situation. Accommodation to the point of undue hardship means that the party making the accommodation will be expected to absorb some hardship. A party will generally not be able to justify refusal to accommodate a person simply because there will be some cost associated with doing so. Undue hardship arises at the point where the extra cost or safety risk is so high that the business cannot reasonably bear it.27

What constitutes undue hardship is different in every situation. When determining whether a request for accommodation is reasonable or will constitute undue hardship in a specific circumstance, it is advisable to seek legal advice.

For any further questions or concerns, please contact the Newfoundland and Labrador Human Rights Commission at:

Tel: 709-729-2709

Toll Free: 1-800-563-5808

humanrights@gov.nl.ca

Footnotes

1Flavio Nienow, "Transgender activists speak out - Say they are not protected under the provincial Human Rights Act", The Telegram, (May 18, 2013), online: The Telegram www.thetelegram.com

2See Vancouver Rape Relief Society v British Colombia (Human Rights Commission), 2000 BCSC 889 (QL).

3See Re. Reid, [1986] 56 OR (2d) 61 (Ont. Court District).

4Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.'s Lounge), [1999] BCHRTD No. 43 (QL).

5National Association of Women and the Law, Transgender and Women's Substantive Equality, (Ottawa: National Association of Women and the Law, 2003), ISBN # 0-895996-80-5, p. 18.

6Human Rights Code, RSO 1990, c H.19, ss 1-7 (CanLII).

7See Vanderputten v Seydaco Packaging Corp., 2012 HRTO 1977, CHRR Doc. 12-2477 (Ont. Human Rights Trib.) Edmonds, Ryan, "Ontario's Human Rights Code Amendments: Deconstructing 'Gender Identity' and 'Gender Expression'", Ontario Bar Association, Vol. 2, No. 2, December 2012, online: www.oba.org/en/pdf/sec_news_sog_dec12_gen_edm.pdf.

8Transgendered Persons Protection Act, SNS 2012, c 51, s 2, online: http://nslegislature.ca/index.php/proceedings/bills/transgendered_persons_protection_act_-_bill_140.

9Human Rights Act, SNWT 2002, c 18, s 5 and preamble (CanLII).

10The Human Rights Code, CCSM c H175, s 9 (CanLII).

11Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), 1st Sess, 41st Parl, 2013, online: www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=5122660&Mode=1&View=3&Language=E .

12Ibid.

13"Human Rights and Gender Identity and Gender Expression Fact Sheet," OHRC, online: www.ohrc.on.ca/en/human-rights-and-gender-identity-and-gender-expression-fact-sheet.

14Forrester v Peel (Regional Municipality) Police Services Board, 2006 HRTO 13, (CanLII).

15While the OHRC has found that the terms pre- and post- operative can be problematic and offensive, they have been left in for the purpose of legal discussion to show that the same rights extend to trans individuals, regardless of operative status.

16Kavanagh v Canada (Attorney General), [2001] CHRD No 21, QL.

17Hogan v. Ontario (Minister of Health and Long-Term Care), 2006 HRTO 32, (CanLII).

18Sheridan v Sanctuary Investments, supra.

19MacDonald v Downtown Health Club for Women, 2009 HRTO 1647, QL.

20See Vancouver Rape Relief Society v British Colombia (Human Rights Commission), supra.

21Vancouver Rape Relief Society v Nixon, 2005 BCCA 601.

22Human Rights Code, RSBC 1996, C 210, s 41, online: http://www.bclaws.ca/.

23Human Rights Act, SNL 2010, c H-13, s 11 (CanLII).

24Sheridan v Sanctuary Investments (No. 3) (1999), supra.

25Human Rights Act, SNL 2010, c H-13.1, s 11(3)(d) (CanLII).

26Human Rights Act, SNL 2010, c H-13.1, s 14(8) (CanLII)

27In Kavanagh v Canada (Attorney General), [2001] CHRD No. 21, it was found that Correctional Services Canada met its burden to accommodate having regard to the unique nature of the prison setting and the needs of the inmate population.

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