In a Feb 22 editorial, Rob Salerno asks, “Does insisting on enumeration actually reduce trans peoples’ civil rights?”
Since the ground of “sex” in the Ontario Human Rights Code already covers “gender identity" and ”gender expression" implicitly, Salerno ponders the necessity of bills such as Toby’s Act, which would seek to add explicit protection. “It’s unclear if the bill will actually help trans people. On the contrary, it seems the ongoing debate is doing more harm than good,” he writes.
Could legislative reforms toward explicit protection really harm trans people? The response from the trans community is a resounding “No.”
Talia Moray points out that despite implicit protections, “we [still] have to go and fight for those rights every single time, and they are always subject to the interpretation of whatever judge, who may or may not be sympathetic to trans people.”
Susan Gapka, chair of the Trans Lobby Group, suggests the existence of implicit protections “is one of the most compelling arguments to make the ground explicit.” If the protection exists already, she says, “why not make it visible and clear . . . [that] it is wrong to discriminate?”
Trans activist Davina Hader agrees, noting “amendments [to the Code] help define and give interpretation, making it perfectly clear as to whom and how it pertains.”
Salerno suggests, “no one has yet been able to point to a case where a trans person . . . received a negative judgment from the OHRC when they made a case of trans discrimination [on grounds of 'sex'].”
However, this has happened. In a 2005 decision in the case of Hogan v Ontario [Health and Long-Term Care], four complainants alleged the 1998 delisting of sexual reassignment surgery (SRS) from OHIP coverage constituted discrimination based on sex (two of the four also claimed discrimination based on disability).
The tribunal found that three complainants had been discriminated against on the ground of disability, because they had already begun treatment for gender identity disorder at the Centre for Addiction and Mental Health (CAMH) prior to the delisting of SRS.
Ontario was ordered to cover the surgeries. The fourth complainant was turned away because he began his treatment at CAMH after delisting had occurred.
The opinion stated, “It is not necessary at this juncture to state whether there was discrimination because of sex. It is enough, to state that the Tribunal finds that the ground of disability has been proven.”
Unfortunately, this severely limited the scope of the judgment and completely overlooked the larger concern: that the delisting was inherently discriminatory against trans people as a group. The majority was unable or unwilling to make that ruling, despite a commendable dissenting opinion to that effect from the tribunal's vice-chair Mary Ross Hendriks.
It stands to reason that had “gender identity” been explicitly protected in the Code at that time, the complainants would not have needed to rely nebulously on the grounds of either disability or sex, and the outcome may have been more effective.
Salerno goes on to suggest that publicized efforts of trans activists working toward legislative reforms “could have the impact of suppressing rights claims from trans people who erroneously believe they have no civil rights until the legislation passes.”
Trans people who have personally lived experiences of transphobic discrimination know there are options available to them. Jessica Larabee of Sudbury recently filed a human rights complaint against the YWCA when she was denied access to a women’s shelter.
A complaint was filed against a farmer’s market in London when the owner decided trans people employed there were no longer welcome.
There is also my own human rights complaint pending against the federal government for refusing to update the gender designation in my SIN record.
To answer the original question, whether explicit protections for “gender identity” would ultimately harm civil rights for trans people, perhaps we should look back and ask if the explicit protection for “sexual orientation” (added to the Code in 1986) has in any way harmed the gay and lesbian community.
Since then, significant advancements have been made; same-sex marriage is legalized, and discrimination claims occur with much less frequency. It seems the gay and lesbian community not only survived the explicit legislative protection of their human rights but also benefited.
Perhaps once explicit protections for “gender identity” exist, service providers will get the message and fewer trans people will need to file human rights claims in the first place.