Federal Human Rights Law: No Gender Identity or Expression Discrimination
July 28, 2017
By Ryan Baxter, Lawyer at McInnes Cooper
This publication has been updated as of October 14, 2020.
On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, took effect, amending both the Canada Human Rights Act and the Criminal Code of Canada to expressly extend protection against both discrimination and hate crimes based on “gender identity or expression”. Practically, the addition of these specific terms will make little legal difference: Canadian courts, adjudicators, tribunals and arbitrators have interpreted the protections based on “sex” (or in some cases, “sexual orientation”) to include gender identity and/or expression in any event. And employers are increasingly taking pride in their support of gender diversity in their workplaces. But words still matter: in those of Gandhi, “Your beliefs become your thoughts, Your thoughts become your words, Your words become your actions, Your actions become your habits, Your habits become your values, Your values become your destiny.”
The federal government states its motivation for Bill C-16 is its belief that it’s, “time for Parliament to affirm the rights of transgender and other gender-diverse persons in clear language. The law should be clear and explicit: transgender and other gender-diverse persons have a right to live free from discrimination, hate propaganda, and hate crime”. Here are the three changes Bill C-16 implements:
Discrimination Protection. The Canada Human Rights Act (applicable to federally regulated workplaces like banks, airlines, rail and road transportation crossing provincial or international borders, telephone systems, radio and TV broadcasting, grain elevators, feed and seed mills)
was amended to add the words “gender identity or expression” to the prohibited grounds of discrimination. The federal human rights law and that of every Canadian province and territory now expressly prohibits discrimination based on one or both of gender identity or gender expression.
Hate Crime Protection. The Criminal Code of Canada makes it a criminal offence to advocate or incite hatred against an “identifiable group”, defined as any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability. Bill C-16 adds “gender identity or expression” to the definition of an “identifiable group”.
Criminal Consequences. Bill C-16 also adds evidence an offence was motivated by bias, prejudice or hate based on gender identity or expression to the principles a court should consider when imposing a sentence for a crime.
Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.
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