Last week, we witnessed the first addition of new prohibited ground in Ontario since ‘sexual orientation’ was added in 1987 by way of an NDP private member’s bill during a Liberal government. At that time, 48 Liberal MPPs, 12 NDP MPPs (all of them), and 4 Conservative MPPs voted to add ‘sexual orientation’, and 4 Liberals and 41 Conservative MPPs voted against the Bill. The new Bill passed with support of all three political parties, though the vote was by hand, and I don’t know if some MPPs voted against it.
Here is the Canadian Press story describing the background of the new prohibited ground, which is “gender identity and gender expression”. Again, the source was an NDP private member’s bill, introduced by the Cheri DiNovo, my MPP in the Junction-High Park-Parkdale. Here is Bill 33. If you want to read the final debate of the Bill, preceding the vote, here is the transcript. Watch Cheri DiNovo’s speech in the defence of the Bill in this clip:
The Human Rights Commission has long taken the position that discrimination on the basis of gender identity was captured by the ban on sex discrimination, and there are multiple decisions of the Human Rights Tribunal agreeing (see e.g. Hogan v. Ontario (Health and Long Term Care)). Therefore, this amendment may only be codifying the law insofar as it prohibits discrimination on the basis of gender identity. Presumably, “gender expression” is intended to be a distinct ground from “gender identity”, though what that will end up meaning in practice isn’t clear to me yet. None of the other prohibited grounds refer to ‘expression’.
The New Provisions Relating to Employment
In terms of employment, the Bill makes Section 5 read as follows:
5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, record of offences, marital status, family status or disability.
Interestingly, the Bill also corrects a long-standing mystery in the harassment in employment section. Until Bill 33, Section 5(2) prohibited harassment in employment on the same grounds as the general prohibition in section 5(1), except Section 5(2) did not prohibited harassment on the basis of “sexual orientation”. According to the rules of statutory interpretation, that would suggest that harassment on the basis of “sexual orientation” was permissible, even though discrimination on the basis of ‘sexual harassment’ was not. That made no sense of course, and the Human Rights Commission always took the position that ‘sexual orientation’ was subsumed by the prohibition on ‘sex’ discrimination under Section 7(2).
Bill 33 amends Section 5(2) to say:
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Then, as if to emphasize the point, the Bill prohibits harassment on the basis of ‘sexual orientation, gender identity, and gender expression” again in Section 7(2), which now reads:
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
No Exemption for Gender Identity and Expression
It is perhaps notable that sexual orientation, gender identity, and gender expression were not added to any of the exclusions or employer defence sections. For example, Section 24(1)(a) and (b) of the Code allow employers to give preference to or to deny employment benefits in ways that would otherwise violate Section 5, if this is reasonable and bona fide in the circumstances. But the new gender grounds are not listed anywhere in Section 24. That means, for example, it would be unlawful for an organization that serves the trans-gender community to give preference in hiring to trans-gendered workers (unless, say, they received permission under Section 14 to institute a special program targeting trans-gendered persons as disadvantaged group)
Also, by adding sexual orientation, gender identity, and gender expression as distinct grounds, rather than just sweeping them into the ground of ‘sex’, Bill 33 probably narrows the Section 24 exceptions. Arguably, before Bill 33, it would was possible to argue that sexual orientation, gender identity, and gender expression were included within ‘sex’ under both Sections 24(1)(a) and (b). As noted above, the Tribunal had in fact ruled as much. That meant, presumably, that sexual orientation and gender broadly defined were also included under ‘sex’ in Sections 24(1)(a) and (b). This would mean that an organization that ‘primarily served’ the gay and/or lesbian community, for example, could make a strong case that it was entitled to give preference to gay and lesbian employees/applicants under Section 24(1)(a).
However, I don’t see how that interpretation could be sustained now. Bill 33 clarifies that ‘sex’, “sexual orientation”, “gender identity” and “gender expression” are distinct grounds from ‘sex’. If they were not intended to be different grounds, then the Bill could have simply added a definition of ‘sex’ to Section 10 (the definitions section) that included sexual orientation, gender identity, and gender expression. By divorcing sexual orientation and gender from ‘sex’, Bill 33 also removes these grounds from the Section 24 exemptions. I’m not sure if this was an oversight, or an intended outcome. Then again (gasp!), maybe my reading is just plain wrong.
Your thoughts or comments on this new addition to the Code?
Do you agree with my assessment of how Bill 33 now removes ‘sexual orientation’, ‘gender identity’, and ‘gender expression’ from Section 24 special employment provisions?
In what ways can you foresee the duty to accommodate (required in Section 11) being applied in the case of gender identity and gender expression?