Christin Milloy:

Rise up and seize equality

Toby’s Act is More Than Just Symbolic

Bill Would Give a Clear Guarantee of ‘Trans Rights’

Note: This article was published in XTRA (slightly edited) as Toby’s Act is More Than Symbolic on February 24th 2012.

In a February 22nd editorial, Rob Salerno asks “Does insisting on enumeration actually reduce trans peoples’ civil rights?”

Since “gender identity” and “gender expression” are already covered implicitly by the ground of “sex” in the Ontario Human Rights Code, Salerno ponders the necessity of bills such as Toby’s Act, which 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.”

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 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?”

Davina Hader agrees, saying “…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 [sic] 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 de-listing of 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 GID at CAMH prior to de-listing SRS. Ontario was ordered to cover their surgeries. The fourth complainant was turned away, because he began his treatment at CAMH after de-listing 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 judgement, and completely overlooked the larger concern: that the de-listing 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 Tribunal 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 three trans women employed there were no longer welcome. There is also my own human rights complaint pending against the federal govermnent 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 has 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.

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Christin Milloy