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Canadian Human Rights Act and Criminal Code amended to include Gender Identity or Expression

On June 19, 2017, the Governor General signed Bill C-16 into law, amending the Canadian Human Rights Act and the Criminal Code. Here’s what you need to know about the changes:

Canadian Human Rights Act

The Canadian Human Rights Act applies to federally-regulated employers and service providers, such as banks, airlines, and telecommunications companies. The amendments add “gender identity or expression” as prohibited grounds of discrimination in the Canadian Human Rights Act.

“Gender identity or expression” are not defined in the Canadian Human Rights Act, but more clarity can be found in policy documents produced by the Ontario Human Rights Commission (these protected grounds were added to the Ontario legislation several years ago), and other provincial bodies.

The Ontario Human Rights Commission defines “gender identity” as “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.”

The Ontario Human Rights Commission defines “gender expression” as “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.”

Though the Ontario Human Rights Commission’s interpretation does not have the force of law, one can expect this interpretation to be persuasive to the federal Tribunal/Courts when interpreting the Canadian Human Rights Act in the future.

Currently, all provinces and territories have legislation in effect which prohibits discrimination based on “gender expression” or “gender identity”, but the addition of these terms to the Canadian Human Rights Act expands this protection to individuals who claim discrimination on the grounds of gender expression or identity from federally-regulated entities.

As with provincially-regulated employers however, federally-regulated employers or service providers may deny or differentiate the provision of service, facilities, or employment on the basis of gender expression or identity when it can be shown that there is a “bona fide justification”. A justification is “bona fide” when it can be proven that accommodation of an individual would impose undue hardship on the employer or service provider, considering the factors of health, safety, or cost. If an employer can demonstrate that an occupational requirement is necessary to the job and the individual cannot be accommodated without undue hardship, the requirement is permissible.

Criminal Code

Bill C-16 also amended the hate propaganda sections of the Criminal Code, adding “gender identity or expression” as a characteristic of an identifiable group.

Specifically, the amendments clarify that it is a criminal offence to advocate or promote genocide, incite hatred, or communicate statements that promote hatred against a group identified by their gender expression or identity.  In addition, committing a crime against an individual on the basis of their gender identity or expression is an aggravating factor for a court to consider when sentencing.

 

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Canadian Human Rights Act and Criminal Code amended to include Gender Identity or Expression