“All children and youth in Canada have the right to live and to learn free from discrimination related to their sex, gender, sexual orientation, gender identity and gender expression.”
By releasing this statement earlier this year, the Canadian Human Rights Commission (CHRC) once again underscored the sanctity of the Canadian Charter of Rights and Freedoms, the UN Convention on the Rights of the Child and various jurisdictional human rights codes.
As basic concepts such
as the health and safety, human rights and civil rights of two-spirit, trans,
non-binary and gender diverse youth continue to be negotiated and re-negotiated
in various social, political and legal spheres, Canadian law establishes that we have a collective duty to
ensure that such fundamental values are not only upheld, but are also not taken
for granted.
The CHRC went on to state that:
“…An integral part of respecting the rights of children and youth is recognizing young people’s right to autonomy, development, education, and self expression. They have the human right to have their views taken seriously when decisions are made that affect their lives.”
Similarly, the Canadian Human Rights Tribunal (CHRT) also
recently reaffirmed that gender identity and gender expression are
non-negotiable rights that must be respected and accommodated, without undue
hardship, in the workplace. It is clear that defining one’s gender identity is based
on unique and lived experiences, and as such, employers have a fundamental
obligation to respect an employee’s gendered subjectivities, including their
right to self-categorize and be recognized accordingly.
In Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43 ,the CHRT ruled that “misgendering and deadnaming” an employee, despite repeated requests to respect their gender identity and expression, was discriminatory and a fragrant violation of section 14(1)(c) of the CHRA. In particular, the employer failed to address the employee by his chosen masculine pronouns, and repeatedly called him by his birth name, which the employee no longer used but was unable to legally change.
The tribunal concluded by affirming:
[173] …employers must protect trans employees from conduct related to the workplace which has a discriminatory impact, including the use of language, whether from management, other employees, or from customers. Trans people should expect to be called by their chosen names and referred to by their chosen pronouns. The use of accurate and correct pronouns for trans people is not a question of preference, it is a matter of right. When this does not occur, trans workers should expect their employers to take steps to rectify the breach of the CHRA. Employers should be expected to investigate reports of human rights contraventions promptly and to address them with urgency. Employers should not expect trans employees to conceal their trans identities while at work, or as a condition of work.”
The ongoing dehumanization of transgenders was also apparent in J.T. v. Hockey Canada et. al., a case in which the Ontario Human Rights Commission intervened as a party in a Human Rights Tribunal Application, and which was ultimately settled. In this case, a transgender boy, Jesse Thompson, was denied access - and effectively Othered - to the boys’ locker room because of a policy that required males and females 11 years and older to change in separate rooms.
Although societal norms are constantly evolving, “locker room culture” continues to provide a
performative arena where traditional gender norms are reinforced, and boys are
able to engage in masculine collectivity, competition and bonding – something
which Jesse was effectively alienated from.
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