The federal government has said it will add 'gender identity' to the Canadian Human Rights Act.

Good news!

But is it good enough?

The private member's Bill that Randall Garrison has spent eight years fighting for in Parliament included both "gender identity" and "gender expression" to the Canadian Human Rights Act.  Does it make a difference if "gender expression" or "gender presentation" is not included?

The short answer is that no one knows for sure, since there are no cases which have considered the question (which of course is the only way lawyers know anything...if a judge has decided it!)

The long answer is ...probably it makes no difference.

The first thing to remember is that trans people are ALREADY protected from discrimination in ALL human rights laws in the country on the ground of "sex".  The law does not make a distinction between "sex" and "gender".  So from a legal point of view, trans people already have all the protection against discrimination that they need.

Having said that, all of the cases so far have concerned trans people who identify with either M or F.  There aren't so far any cases dealing with non-binary trans people, ie people for whom neither M nor F will ever adequately describe their gender.

So...does this mean the result might be different for non-binary people?

No...because the law says now that one's sex/gender for legal purposes is dependent on one's gender identity.  So anyone who identifies as trans, whether binary or non binary, is protected from discrimination.
So far so good.  A trans person is protected from discrimination whether the language in the human rights law prohibits discrimination on the basis of sex, or prohibits discrimination on the basis of gender identity, or both.

Does adding the phrase "gender expression" or "gender presentation" make a difference?  
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The Ontario Human Rights Commission has a policy document that says:
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.


What about a man who identifies as male, but wants to wear lipstick to work? Could an employer tell him he cannot come to work wearing lipstick, because he is a man and men don't wear lipstick? 

Since the person who is doing the discriminating against trans people probably does so on the basis that the person doesn't look, gender-wise, like what the discriminator expects, it seems likely that the way one expresses one's gender is part of, or protected by, the term 'gender identity'.  

Follow the example of the cisgender man who wears lipstick.  Suppose that another person (say, the identical twin of the cisgender man) identifies as nonbinary and gender fluid. That person, too, wears lipstick to work but would otherwise be read as male.

The employer tells both people that they can't wear lipstick to work.  The nonbinary genderfluid person says that it is part of their gender identity to wear accessories customarily associated with female people.  So they would win a human rights case if their employer fired them for wearing lipstick.

The cisgender man does not claim that wearing lipstick to work is part of his gender identity as male; but he says it is part of his gender presentation.  Would the employer be entitled to fire him for wearing lipstick because lipstick is not part of a male gender identity?  

I think human rights tribunals would decide, in both cases, that the employer had no right to fire the person who wore lipstick to work.  And I think that is true whether the statute contained protections on the basis of sex, on the basis of gender identity, on the basis of gender presentation, or some combination.

So does that mean it doesn't matter whether gender identity is added to human rights legislation?   Not at all.

Though 'sex' protects trans people, hardly anyone knows that.  Not trans people, not their employers or their lawyers or their service providers.  It is essential that protection for trans people be explicit, not implicit.  Unless people know they have rights, the rights they have are empty.

So we applaud the federal government for adding 'gender identity' to the Canadian Human Rights Act.  
As with all legislation passed by the new government in the House of Commons, the legislation must also get the approval of the Senate.  It is an open question whether the change will survive Senate scrutiny since so many Senators are Conservative appointees.

But remember: whether they pass a law to add 'gender identity', or whether the law fails again, trans people are NOW protected from discrimination.

FOR IMMEDIATE RELEASE
November 10, 2015

“The government claims the right to be wrong, knowing it is trans and intersex people who have to bear the burden of their mistake,” says Kori Doty, one of eight trans and intersex complainants in a human rights case to have birth certificates issued without “m” or “f”.

Yesterday, the BC government filed a response in the case of Cunningham v Vital Statistics Agency.  In their Response, the Ministry of Health is stating that putting gender markers on birth certificates, is not discriminatory.

"The government knows that the current system of designating gender at birth for a document that follows you throughout life is predictably incorrect for many trans and intersex people. The government knows exactly how much hardship and danger these systems can cause in our lives. It is thoroughly disappointing that they are choosing to ignore this, while fully aware of the risk of harm that this choice leaves on those impacted" says Doty.

Doctors assign the sex of a baby as “m” or “f” based on an inspection of the baby’s genitals at birth.  This assigned sex is recorded in the birth registry of the Vital Statistics Agency.  When a Birth Certificate is issued, it contains the gender marker “m” or “f”. Science now knows that one’s gender is determined by one’s innate sense of themselves.  That is called ‘gender identity’.  One’s gender identity may or may not “match” one’s genitalia. and one’s gender identity does not develop for years after birth. Some people have a gender identity that is neither “m” nor “f”.  Some people labelled “m” identify as female; and some labelled “f” identify as male.

So: the doctor assigning “m” or “f” is sometimes wrong.  

The birth certificate based on the doctor’s guess is also sometimes wrong.

Misgendering identity documents contributes to the severe mistreatment and discrimination that trans and intersex people experience.

“We’re not saying we want gender taken off all ID. What we are saying is that when you assign sex at birth, you will get it wrong in some of the cases. Until you can ask someone what their gender is, you cannot know it. Getting it wrong discriminates against trans and intersex people” says Felix Gilliland, one of the Complainants. The Complaints say that putting “m” or f” on birth certificates is a violation of privacy and inexcusably exposes trans and intersex people to harm.

Milan Halikowski, a 13 year old Complainant says “Having a gender marker on my birth certificate has directly impacted my life in a negative way. It has caused my exclusion and bullying in sports, school and in my daily life. I thought the government’s job was to help keep kids safe and the current policy puts us at risk.” 

The Complainants are now waiting on the BC Human Rights Tribunal to set a date for Hearing.

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