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Why Does Ontario Ignore Trans Rights?

Ontario has a long and rich history of Human Rights, one it can be proud of.  The Ontario Human Rights Code was the first such document of its kind in Canada.  It was introduced in 1962 after the founding of the Ontario Human Rights Commission the year before.  Subsequently, the Ontario code was used as a model for the Canadian Charter of Rights and Freedoms.

There are fifteen grounds of discrimination under the Code: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex, sexual orientation (Gay, Lesbian and Bisexual), disability, age, marital status (including same sex partners), family status, receipt of public assistance (in accommodation only) and record of offences (in employment only).

Traditional thinking and some legal rulings have included Transgender under the umbrella of sexual discrimination within the Ontario Code.  However, narrow interpretations of law have also excluded transgendered people from protection.  Therefore, Gender Identity sits in a grey area of legal no-man's land in so far as Human Rights Protections are concerned.  The Ontario Human Rights Commission have been urging inclusion of Gender Identity to the Code for years.

Ms. Cheri DiNovo MPP who is the NDP member for Parkdale-High Park has been an active legislative member and champion of human rights.  On March 21, 2007 she introduced Bill 186 aptly named Toby's Act after the death of a transgendered and prominent Canadian musician and producer; Toby Dancer.  Bill 186 seeks to add the words "Gender Identity" to the Ontario Human Rights Code.

This bill was read into the record and accepted by the Ontario Legislature on the same day.  It has since been awaiting Second Reading.  To date, Toby's Act sits in limbo.  Nothing has been done with it or to it since that date of First Reading, no plans to put it back on the legislative agenda are in the works, and repeated attempts by this writer have been either ignored or passed over by members of the legislature including the Hon. Steve Peters (speaker of the house), Mr. Khalil Ramal MPP - London-Fanshawe and the Hon. George Smitherman.  Additional contact with the print media has likewise been ignored by them.

This lack of action raises a number of questions about the commitment of Parliamentary Members toward the most basic of Human Rights.  If passed and given Assent to become law, this bill will provide protections for transgendered people in a number of areas including Housing, Employment and Healthcare.  These are basic needs every person is entitled to receive yet can be denied to transgender people because of narrow legal interpretations.  This is unacceptable.

The fact that one is openly transgendered is all that is needed.  The individual does not have to be in the process of transition or present as opposite to their genetic sex in order to suffer discrimination.  Healthcare can be denied, employment removed or services withheld.  No specific protections exist and defense of such actions can be easily accomplished.  The only recourse for the transperson is to take the case to the Ontario Human Rights Tribunal who will rule on the merits of the case.  After that, it has to go to the courts and either party can escalate from the point of the tribunal ruling.  One of the most famous cases of escalation was with the Zurich Insurance Company who after losing at each step lost again in the Supreme Court of Canada.

In that case, Mr. Justice John Sopinka noted: (Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321)"...that human rights legislation is, often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed."

The real questions about this have to center around the government's lack of action.  Noting that oftentimes transgendered people are among the poorest of the poor, their access to housing, healthcare and employment is significantly reduced.  This puts a strain on the social systems for welfare and subsidized housing.  It can lead to legal problems due to prostitution, drug trafficking etc. in order to survive.

The lack of adequate healthcare can put transpeople at elevated risk for sexually transmitted disease, particularly where the person is working in the sex trade as a last resort for survival.  This can put even greater strains on the healthcare systems for treatment of HIV/AIDS instead of proactive prevention.

These are simple examples designed only to shed light on a desperate situation that could be easily corrected.  The problem appears to be a lack of will on the part of legislators.  Passage of this Bill would not take a great deal of the legislators time and effort.  It is simple and to the point.

Ontario has often been at the fore of Human Rights.  Ontario has traditionally been a diverse province with progressive ideas and social systems.  Unfortunately we are lagging behind many jurisdictions in the United States which has generally been a bastion of conservatism.

It seems that those in positions of power, with the ability to change things are the ones least affected, yet they are the ones most often in the way of progress.  The situation here in Ontario appears to be proof of this as legislators who are unaffected by transgender stand in the way of providing basic human rights to a small but equally significant minority.  The question to be answered is: Why?

History has proven that where transgressions of Human Rights have been overcome, society at large has been the beneficiaries.  Why is Ontario so loathe to go forward?  The lack of action by legislators can only be construed as their approval and consent for continued Human Rights abuses.

Kimberley

November 2008