6. Ontario’s Human Rights Code

6.1 Protections

Under the Ontario’s Human Rights Code, trans people and other gender non-conforming individuals are protected from discrimination and harassment because of gender identity and gender expression in five social areas:[23]

• When receiving goods, services and using facilities (section 1). “Services” is a broad category and can include privately or publicly owned or operated services including insurance, schools, restaurants, policing, health care, shopping malls, etc.
• When occupying housing accommodation (section 2). This includes private rental housing, co-operative housing, social housing and supportive or assisted housing
• When entering into a contract with others (section 3). This includes the offer, acceptance, price or even rejecting a contract
• In employment (section 5). This includes full time work, part-time work, volunteer work, student internships, special employment programs, probationary employment,[24] and temporary or contract work
• When joining or belonging to a union, professional association or other vocational association (section 6). This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, etc.

A fundamental aspect of the Code is that it has primacy over all other provincial laws in Ontario, unless the law specifically says that it operates notwithstanding the Code. This means where a law conflicts with the Code, the Code will prevail, unless the other law says otherwise.[25]

6.2 Establishing discrimination

The Code does not define discrimination. Instead, the understanding of discrimination has evolved from tribunal and court decisions. To establish prima facie (on its face) discrimination the person making a claim must show:

1. They have a characteristic protected by one or more of the Code grounds (e.g. gender identity or gender expression)[26]
2. They experienced adverse or negative treatment or impact in one of the social areas under the Code (e.g. in accessing a service, housing or employment)
3. The protected characteristic was a factor in the adverse treatment or impact.[27]

Discrimination is not always direct and is often hard to detect. The claimant must show on a “balance of probabilities” (more likely than not) that adverse or negative treatment happened. The analysis should be flexible and look at all relevant factors in the situation including circumstantial evidence as well as the full impact on the affected person or group. While there may be evidence of “intent,” this is not needed to prove discrimination. Gender identity, gender expression or other protected characteristics need only be one of the factors in the negative treatment for discrimination to exist.[28]

Once prima facie discrimination is established, the burden then shifts to the organization or person responsible to either provide a credible non-discriminatory explanation, or justify the conduct or practice using one of the defences available under the Code (also see sections 9 and 10 of this policy).

6.3 Right to self-identify gender

International human rights principles are clear that every person has the right to define their own gender identity. A person’s self-defined gender identity is one of the most basic aspects of self-determination, dignity and freedom.[29]

For legal and social purposes, a person whose gender identity is different from their birth-assigned sex should be treated according to their lived gender identity.[30]

The Human Rights Tribunal of Ontario (HRTO) has said that, “for transgendered people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.”[31]