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Transgender Rights?

Human Rights for the transgendered in Ontario are in theory enshrined in the Ontario Human Rights Code and by extension, Canada's Charter of Rights and Freedoms.  This protection comes under the classification of discrimination by sex.  The problem here is that transgender is not sexual in any context and that argument is used to exclude the trans community from this very protection.  Not surprisingly, it is the Ontario Government who is doing the discriminating.  The real paradox is that both the "protection" and the discrimination are the result of Supreme Court of Canada test cases.

First let's look at the so called protection side of things.  The legal community generally concedes that discrimination by gender is under the umbrella of discrimination by sex.

The Supreme Court of Canada ruled:  "…to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration."  (Source: Law v. Canada [1999] 1 S.C.R. 497, at par. 51.)

While the above ruling provides a broad cover it does not specifically mention either sex or gender.  Should it have to or is the foregoing a statement of intent?  It would appear that it is more intent than case law.  The question that must be raised here is simply this.  By providing specificity in naming gender as a case for protected rights, is the application of rights as a broad stroke creating discrimination? 

Consider two women who are arrested; one a natal female and the other a transitioned transsexual female.  Placed into custody, they do have different needs while both are identifying as female.  The trans female will require hormonal treatment to retain her secondary sexual characteristics and the penal system is under no obligation to provide them.  So, if they are denied, is the trans woman receiving special and therefore discriminatory treatment?  If they are provided is she receiving preferential treatment?  Their basic needs are different and so a case for discrimination could be made.

To adequately get a grasp of the origins of this discrimination one should look at colonial and patriarchal decision in law that were largely arbitrary.  Of course the understanding of social sciences and mental health combined with current scientific knowledge did not exist then so what seems arbitrary was probably founded in fact as it was known.  Still religious values played a large part in these decisions.

The net result of all this was to strip people who identified in the minorities of sex and transgender of their dignity as human beings.  This led to the discrimination and even hate crimes against both visible and invisible minorities.  In recent years great advances in discrimination due to sexual orientation have been made to the benefit of the LGB community however they dont adequately cover the trans community.  This has left the transgender community marginalized and openly targets for continued discrimination.  The problem again comes back to case law.

Some of the specific needs that are often not met include homeless shelters, rape crisis, access to education and medical care, public and private health benefits and denial of access to public facilities.  Again the problem comes down to specific protection under the law.  To further complicate the situation, the different groups encompassing the spectrum of transgender have different needs.  Could blanket laws cover all the possibilities?  It would be difficult at best.  It is not a question of whether protections are needed but more how they would or could be provided.

The courts will need to examine discrimination as a larger description where more than one right could be challenged.  Consider a complaint by a transsexual woman from a visible minority whose sexual orientation is lesbian. 

The other thought is that by adding gender to the protections current law could be applied by extension.

Let's consider that The Canadian Charter of Rights and Freedoms in combination with Ontario's Human Rights Code are generally congruent.  That said, since most people working and living in Ontario are governed by the Ontario code, it is provincial law that we will most focus on.

"Individuals who are discriminated against or harassed because of gender identity are legally protected under the ground of ‘sex’. This includes transsexual, transgender, and intersex persons, cross-dressers, and others whose gender identity or expression is, or is seen to be, at variance with their birth-identified sex."  (Source:www.ohrc.on.ca/en/issues/gender_identity)

That discrimination exists for the transgender person is a gross understatement of fact.  The laws and codes prevent discrimination everywhere: in the workplace, in public, within systemic organization and process.  Well that is what we are led to believe.  At this juncture we can only accept that transgender rights are protected by law. 

Now i am going to challenge that beginning with government itself.

"Discrimination because of gender identity is any action based on a person’s sex or gender, intentional or not, that imposes burdens on an individual or group and not on others, or that withholds or limits access to benefits available to other members of society. This can be overt or subtle, and includes systemic discrimination, such as that which arises from the application of a non-inclusive rule or policy."  (Source:www.ohrc.on.ca/en/issues/gender_identity)

The Ontario Government's stance of withholding access to medical care for transsexual transition can only be considered as in violation of its own Human Rights Code above.  This policy has been challenged in the Human Rights Commission and the government's position was upheld.  Under its own definition in the Code, this could be interpreted as Indirect Discrimination.  One has to wonder why or how the government's position was upheld.  This writer is no legal eagle but it would seem that on the surface this discrimination is blatantly in violation of the code.  Not so.

A decision (Hogan) by the Ontario Human Rights Tribunal in 2005 ordered OHIP to pay for SRS because the complainants had already been approved by the Clarke Institute of Psychiatry prior to the Harris government's change of funding effective October 1, 1998.  In its ruling the Commission stated that this policy was discriminatory towards the transgender community.  (http://www.alterheros.com/english/community/?ID=206)  Still, the position of the Ontario Government has not changed although recent (2008) developments in the Ontario Ministry of Health indicate that SRS funding has been reinstituted albeit with severe restrictions.

A major complaint within the transgender community is the use of washroom facilities.  It is generally agreed that one can use the facilities for the identifying gender, there is a legal  loophole.  That loophole is public decency.  Regardless, an employer is obliged to comply except in cases of undue hardship or where the safety of the transgendered person is questionable in which case a separate facility must be provided.  To this writer, it would appear that this in and of itself, could be viewed as discriminatory although it could very well be the best option.  Irrespective of washroom policies, an employer is required to educate the employees of an organization regarding human rights; particularly where someone who is transgendered is involved.

Generally, the transgendered person is protected from discrimination the same as anyone else.  This is not to say there aren't ways around it such as in the case of job performance, only that the onus to prove no discrimination existed resides with the defendant in any legal action.

Another area of concern is that of marriage.  Many gender clinics will require that a marriage be dissolved with divorce prior to approving SRS.  However the changed laws regarding same sex marriage now make this demand questionable where both partners wish to continue their marriage.  In other cases, marriage annulment can be easily achieved due to the sexual nature of the changed relationship.  This type of request is rarely denied.

Where child custody is involved in a divorce arising from gender, a 1996 test case determined that gender has no bearing on custody arrangements of children from a marriage.

The late Mr. Justice John Sopinka  of the Supreme Court of Canada once noted in a ruling (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."

Wise words from a very wise man.