Cameron Miranda
In 2017, Canada passed Bill C-16, which added gender identity and expression to the Canadian Human Rights Act and the Criminal Code. This bill sparked a national debate, bringing federal laws in line with provincial human rights codes. While the law does not specify the use of any particular pronoun, it recognizes that everyone has the right to self-identify their gender and that misgendering is a form of discrimination. A Canadian court ruled in 2021 that deliberate misgendering in the workplace is a human rights violation, with critics voicing concerns that the law would penalize citizens who do not use specific pronouns.
| Characteristics | Values |
|---|---|
| Federal laws against misgendering | Yes, since 2017 |
| Provincial laws against misgendering | Yes, since 2012 in Ontario |
| Hate speech | Yes, Bill C-16 added "gender identity or expression" to the Criminal Code provisions dealing with hate propaganda |
| Hate crimes | Yes, Bill C-16 added "gender identity or expression" to the Criminal Code provisions dealing with sentencing for hate crimes |
| Workplace discrimination | Yes, a Canadian court ruled that deliberate misgendering in the workplace is a human rights violation |
| Housing discrimination | Yes, a Canadian court ruled that misgendering is a human rights violation |
| Police discrimination | Yes, a tribunal found misgendering to be discriminatory in a case involving police |
| Education discrimination | Yes, the Code prohibits discrimination against trans people in services, including education |
| Default gender in legislation | Historically masculine, but this has been giving way to gender-inclusive drafting practices |
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What You'll Learn
- Misgendering is a human rights violation in Canada
- Provincial human rights laws already protect transgender and gender-diverse Canadians
- Deliberate misgendering in the workplace is a violation
- The law doesn't specify any particular pronoun or terminology
- The law recognises everyone's right to self-identify their gender
Misgendering is a human rights violation in Canada
In 2017, the Parliament of Canada passed Bill C-16, which added "gender identity or expression" to the Canadian Human Rights Act, as well as to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and sentencing. This bill brought federal laws up to date with already-established provincial human rights codes.
The Ontario Human Rights Commission (OHRC) has also stated that "misgendering" is a form of discrimination. The OHRC's policy on preventing discrimination based on gender identity and expression is based on the Code and case law. It requires organizations to respect a trans person's right to be treated in accordance with their lived gender identity.
In 2021, a Canadian court ruled that deliberate misgendering is a human rights violation. The British Columbia Human Rights Tribunal ruled in favor of Jessie Nelson, a restaurant worker who filed a complaint against their former employer, Buono Osteria. Nelson, who is non-binary and genderfluid, claimed that their former employer discriminated against them by intentionally using incorrect pronouns and gendered nicknames such as "sweetheart" and "honey." The Tribunal representative, Devyn Cousineau, wrote that pronouns are "a fundamental part of a person's identity" and that their proper usage indicates "that we see and respect a person for who they are."
To establish that misgendering is a deliberate human rights violation in court, a plaintiff would have to document a clear pattern of behavior and recorded attempts to inform and correct the accused offender. This law applies only to professional contexts, such as employment, housing, and services, and does not apply to social contexts. It is also not automatically enforced, as the victim of discrimination must file a lawsuit.
While some have criticized Bill C-16 as compelling speech and infringing on freedom of expression, legal experts have stated that accidental misuse of a pronoun would be unlikely to constitute discrimination.
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Provincial human rights laws already protect transgender and gender-diverse Canadians
In 2017, the Parliament of Canada passed Bill C-16, which amended the Canadian Human Rights Act and the Criminal Code to include "gender identity or expression" in their definitions of "identifiable group". This addition to the Canadian Human Rights Act brought federal laws up to date with already-established provincial human rights codes, which had already been protecting transgender and gender-diverse Canadians.
The Ontario Human Rights Commission's Policy on preventing discrimination because of gender identity and gender expression is based on the Code and case law. The policy deals with a range of issues and states that organisations must respect a trans person's right to be treated in accordance with their lived gender identity. The Code prohibits discrimination and harassment against trans people in employment, services (including education, policing, health care, restaurants, shopping malls, etc.), housing, contracts, and membership in vocational associations. It does not specify the use of any particular pronoun or other terminology, but it does recognise that everyone has the right to self-identify their gender and that "misgendering" is a form of discrimination.
In 2021, a Canadian court ruled that deliberate misgendering in the workplace is a human rights violation. The British Columbia Human Rights Tribunal ruled in favour of Jessie Nelson, a restaurant worker who filed a complaint against their former employer, Buono Osteria. Nelson, who is non-binary and genderfluid, claimed that their former employers discriminated against them by intentionally using incorrect pronouns and gendered nicknames such as "sweetheart" and "honey". The Tribunal representative, Devyn Cousineau, found that the restaurant's alleged misconduct violated British Columbia's Human Rights Act. She wrote that pronouns are "a fundamental part of a person's identity" and that their proper usage indicates "that we see and respect a person for who they are".
While some have criticised Bill C-16, arguing that it would compel speech and classify the failure to use preferred pronouns as hate speech, legal experts have countered that accidental misuse of a pronoun would be unlikely to constitute discrimination. Instead, it is the repeated and consistent refusal to use a person's chosen pronoun that might be considered discriminatory.
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Deliberate misgendering in the workplace is a violation
In 2017, the Parliament of Canada passed Bill C-16, which added "gender identity and expression" to the Canadian Human Rights Act and the Criminal Code. This bill was introduced to protect transgender and gender-diverse Canadians from discrimination and hate crimes. While the law does not specify the use of any particular pronoun, it does recognize that everyone has the right to self-identify their gender and that misgendering is a form of discrimination.
In the province of Ontario, explicit protection for gender identity and gender expression was added to the Code in 2012. This Code prohibits discrimination and harassment against trans people in employment, services, housing, contracts, and membership in vocational associations. Similarly, the British Columbia Human Rights Tribunal has also ruled that deliberate misgendering in the workplace is a human rights violation. This ruling was made in favor of Jessie Nelson, a restaurant worker who filed a complaint against their former employer for intentionally using incorrect pronouns and gendered nicknames such as "sweetheart" and "honey".
The law is clear that transgender and gender-diverse individuals have the right to be treated in accordance with their lived gender identity. This includes the use of their chosen name and personal pronouns. While some people may feel uncomfortable using gender-neutral pronouns, it is important to respect an individual's chosen pronouns and name. Failing to do so in a professional context, such as the workplace, can be considered discrimination and a human rights violation.
It is important to note that the law does not apply to social contexts, only professional ones. Additionally, the onus is on the victim of discrimination to file a lawsuit, as the police will not automatically intervene. Furthermore, accidental misuse of a pronoun is unlikely to constitute discrimination, but consistently refusing to use an individual's chosen pronoun might. Overall, deliberate misgendering in the workplace is a violation of human rights and can have legal consequences.
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The law doesn't specify any particular pronoun or terminology
In 2017, the Parliament of Canada passed Bill C-16, which added "gender identity or expression" to the Canadian Human Rights Act, as well as to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing. This bill brought federal laws in line with already-established provincial human rights codes.
While the law recognizes an individual's right to self-identify their gender and that misgendering is a form of discrimination, it does not specify the use of any particular pronoun or terminology. The Ontario Human Rights Commission's (OHRC) policy on preventing discrimination based on gender identity and expression is based on the Code and case law. The policy outlines common terminology but does not specify what specific gender-neutral pronouns to use.
The OHRC policy recognizes that the meaning and use of gender-related terms can evolve and change over time. It emphasizes the importance of respecting a trans person's right to be treated in accordance with their lived gender identity. The law also acknowledges the right to freedom of expression, understanding that no right is absolute.
In common law jurisdictions, including Canada, the default masculine rule has historically been applied in legislative drafting. This rule, also known as "generic masculine," uses masculine words or pronouns ("he," "him," "his") to refer collectively to persons of any gender. However, drafting practices have evolved to limit the use of gender-specific language to contexts where it reflects the legislative intention, promoting more inclusive language.
While the law does not mandate specific pronouns, it is essential to respect an individual's chosen pronouns and gender identity. Deliberate misgendering, especially in professional and social areas covered by the Code, such as employment, housing, and education, is likely to be considered discrimination.
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The law recognises everyone's right to self-identify their gender
In 2017, the Parliament of Canada passed Bill C-16, which added protections on the basis of both gender identity and expression to its existing nondiscrimination and hate crimes laws. The bill amends the Canadian Human Rights Act, joining a list of identifiable groups protected from discrimination, including age, race, sex, religion, and disability, among others. The law recognizes that everyone has the right to self-identify their gender and that misgendering is a form of discrimination.
The Ontario Human Rights Commission's (OHRC) policy on preventing discrimination based on gender identity and expression is based on the Code and case law. The OHRC policy does not specify the use of any particular pronoun or terminology. However, it recognizes that the meaning and use of gender-related terms can evolve and change over time. The OHRC advises that when in doubt, it is best to ask a person how they wish to be addressed and use "they" if you don't know their preferred pronoun.
In 2021, a Canadian court ruled that deliberate misgendering in the workplace is a human rights violation. The ruling came after Jessie Nelson, a non-binary and genderfluid restaurant worker, filed a complaint against their former employer for intentionally using incorrect pronouns and gendered nicknames such as "sweetheart" and "honey." The British Columbia Human Rights Tribunal found that the restaurant's misconduct violated the province's Human Rights Act, emphasizing that pronouns are "a fundamental part of a person's identity."
While the law recognizes the right to freedom of expression, it is important to respect an individual's chosen name and pronouns that match their gender identity to prevent discrimination. This is especially relevant in social areas covered by the Code, including employment, housing, and services like education. The law applies to companies and organizations, and employees acting as representatives of the business can result in the company being brought to court in cases of misgendering.
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Frequently asked questions
Yes, Canada has laws that protect transgender and gender-diverse Canadians from discrimination based on gender identity or expression. These laws are included in the Canadian Human Rights Act and the Criminal Code.
Misgendering is a form of discrimination and a human rights violation in Canada. It is defined as refusing to refer to a transgender person by their chosen name and personal pronouns that match their gender identity.
The law in Canada does not specify the use of any particular pronoun or terminology. It recognizes that everyone has the right to self-identify their gender. However, it is generally respectful to refer to a person by their chosen name if you are unsure of the preferred pronoun.
Deliberate misgendering, especially in professional contexts such as the workplace, can be considered a human rights violation and may result in legal consequences. The specific consequences would depend on the province's legislation and the nature of the violation.
