Gender Identity and Gender Expression

Backgrounder

Gender identity is each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from the gender typically associated with their sex assigned at birth. For some persons, their gender identity is different from the gender typically associated with their sex assigned at birth; this is often described as transgender or simply trans. Gender identity is fundamentally different from a person’s sexual orientation.

Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.

There are a variety of individual experiences of gender and of gender expression. The terms “gender identity” and “gender expression” include a wide range of gender diversity.

Transgender people routinely experience discrimination, harassment and even violence because their gender identity or expression is different from those typically associated with their sex assigned at birth.  A survey conducted by Trans Pulse Project in 2010 showed that, out of the 500 transgender respondents in Ontario, 13% had been fired and 18% were refused employment based on their transgender status. Twenty percent of respondents had been physically or sexually assaulted, but not all of these assaults were reported to police.

Updates to the Canadian Human Right Act

The Canadian Human Rights Act (CHRA) prohibits discrimination in federally-regulated employment and the provision of goods, services, facilities and accommodation on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. Adding “gender identity or expression” to the list of grounds would make it very clear that transgender and other gender diverse persons have protection in the law.

Updates to the Criminal Code

The Criminal Code prohibits hate propaganda against an “identifiable group,” which is currently defined to be a section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability. Adding “gender identity or expression” would extend protection against hate propaganda to transgender and other gender diverse persons.

The Criminal Code also provides that a judge, when sentencing someone for having committed an offence, must consider any relevant aggravating circumstances, including if the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or “any other similar factor”. While this phrase is broad enough to include gender identity or expression, an amendment would confirm the protection for transgender and other gender diverse persons.

Hon. Jody Wilson-Raybould Justice Canada Law