Cecily Zamora
Canada has passed several laws relating to gender identity and gender expression in recent years. Notably, Bill C-16, which passed in 2017, added gender identity or expression to the Canadian Human Rights Act and the Criminal Code. This bill sparked a national debate, with critics expressing concern that it would penalize citizens who do not use specific pronouns when referring to gender-diverse people. Additionally, in 2016, Bill 28 removed the terms mother and father from Ontario law, permitting pre-conception agreements allowing four unrelated and unmarried people to become parents. These laws reflect Canada's commitment to protecting the rights of transgender and gender-diverse individuals and promoting gender equality in various spheres, including family courts and child welfare.
| Characteristics | Values |
|---|---|
| Gender-neutral language | Service Canada agents were instructed to use gender-neutral terms such as "parent" instead of "mother" or "father" when speaking to the public. |
| Gender identity and expression | In 2012, gender identity and gender expression were added to Ontario's Human Rights Code, making Ontario the first jurisdiction in North America to pass such a law. |
| Transgender rights | Canada has enacted human rights acts that prohibit discrimination and harassment on the basis of gender identity or expression. The country was ranked third in Asher & Lyric's Global Trans Rights Index in 2023. |
| Conversion therapy ban | Canada has banned conversion therapy, requiring parents, counselors, and others to affirm a person's gender identity or expression. |
| Gender-based harassment | Refusing to refer to a person by their self-identified name and pronoun can be considered gender-based harassment. |
| Gender law concerns | Critics have voiced concerns that laws regarding gender identity and expression may penalize citizens who do not use specific pronouns and limit the pool of prospective foster or adoptive parents. |
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What You'll Learn
Canada's gender laws on transgender rights
Canada has made significant strides in recognising and protecting the rights of transgender and gender-diverse individuals. The Canadian Human Rights Act, enacted by the Parliament of Canada, is a federal statute that extends to the federal government, First Nations governments, and federally regulated employers. While the Act initially did not explicitly include gender identity, several provinces and territories in Canada had already enacted human rights laws prohibiting discrimination on the basis of gender identity or expression.
In 2016, "gender identity or expression" was added to the Québec Charter, marking a significant step forward. The following year, in June 2017, Bill C-16 was passed by the Parliament of Canada, amending the Canadian Human Rights Act to include "gender identity or expression". This bill sparked a national debate, bringing attention to issues surrounding gender, pronoun use, freedom of speech, and the rights of transgender and gender-diverse Canadians.
The inclusion of "gender identity or expression" in the Canadian Human Rights Act sent a clear message that discrimination and harassment on these grounds are prohibited in employment, housing, public services, and publicity. This change brought federal laws in line with existing provincial human rights codes, ensuring that transgender and gender-diverse Canadians are protected under human rights and hate crime laws.
In addition to federal laws, some provinces in Canada have also passed specific gender laws. For example, Ontario has passed five gender laws since 2012, including Bill 13, which required public schools to establish gay-straight alliances and combat "homophobia" and "transphobia". Another notable piece of legislation is Bill 89, a child protection bill that has been the subject of controversy due to its inclusion of language from the Ontario Human Rights Code.
While Canada has made notable progress in recognising transgender rights, there is still room for improvement. Procedures for changing legal gender vary among provinces and territories, and there have been concerns raised about the potential for discrimination in the rejection of transgender ideology in foster care and adoption processes. Nonetheless, Canada ranked third in Asher & Lyric's Global Trans Rights Index in 2023, indicating a strong commitment to protecting the rights of transgender and gender-diverse individuals.
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Gender identity and expression in human rights laws
Canada has made significant strides in recognising and protecting the rights of transgender and gender-diverse individuals, with federal and provincial/territorial human rights laws playing a crucial role in this regard.
Federal Level
At the federal level, the Canadian Human Rights Act and the Criminal Code have been amended to include "gender identity and expression" as prohibited grounds for discrimination. This means that transgender and gender-diverse Canadians are legally protected from discrimination and hate crimes based on their gender identity. The federal laws also allow for the changing of legal gender without the requirement of surgery, recognising that gender identity may differ from one's birth-assigned sex.
Provincial/Territorial Level
At the provincial and territorial levels, there has been a push to include "gender identity and expression" in human rights codes, with varying levels of success. Ontario, for example, added these terms to its Human Rights Code as early as 2012, becoming a pioneer in North America. The Québec Charter of Rights and Freedoms, on the other hand, was amended in 2016 to include gender identity or expression, joining other provinces in providing explicit protections for transgender and gender-diverse individuals.
Impact of Legislation
The inclusion of "gender identity and expression" in human rights laws has had a profound impact on the lives of transgender and gender-diverse Canadians. It ensures that they are protected from discrimination and harassment in various aspects of life, including employment, housing, public services, and publicity. It also recognises their right to define their own gender identity, irrespective of surgery or identity documents.
Challenges and Criticisms
While Canada's human rights laws have made significant progress in recognising gender identity and expression, challenges and criticisms remain. There are concerns about the potential for conflict between child protection cases and the inclusion of gender identity in the Ontario Human Rights Code. Additionally, critics worry about the practical implications of certain laws, such as the potential for parents who disagree with new gender ideologies to be overlooked for foster care or adoption. Finally, there is ongoing debate about the use of specific pronouns, with critics expressing concern that citizens could be penalised for using the wrong pronouns, despite legal experts asserting that misusing pronouns alone does not constitute a criminal act.
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Gender bias in family courts
Canada has made significant strides in recent years to promote gender equality in its laws and policies, including those related to family courts. However, despite these advancements, gender bias remains prevalent in Canada's family court system. This bias manifests in various ways and impacts both men and women, albeit differently.
Historically, family courts in Canada, like in many other countries, favoured men when it came to child custody cases. This bias stemmed from traditional gender norms that positioned men as the primary breadwinners and women as homemakers and caretakers. The "tender years" doctrine was created to counter this bias and promote the idea that young children were better off in the care of their mothers. While this shift aimed to address gender inequality, it also contributed to the perception of men as less capable or important caregivers.
In recent years, there has been a growing recognition of the biases faced by men in family courts, particularly regarding child custody and spousal support. A 2018 US study found that judges who adhered to traditional gender norms tended to favour mothers in mock child custody cases, even when both parents were equally qualified. This bias has been reflected in custody statistics, with a significant majority of sole physical custody cases being awarded to mothers before 2006.
Men often face additional challenges in family courts due to stereotypes and assumptions about their financial capabilities and roles as caregivers. Courts have been criticised for not adequately considering men's ability to pay spousal and child support while maintaining a reasonable standard of living for themselves. This has resulted in divorced men becoming significantly more impoverished than divorced women. Additionally, men who experience domestic abuse or face challenges in maintaining relationships with their children due to gender biases may find themselves at a disadvantage in family court proceedings.
While gender bias in family courts has traditionally disadvantaged men, it is important to recognise that women also continue to face biases and stereotypes that impact their experiences within the legal system. Some argue that societal assumptions about men being inherently violent or unfit parents contribute to a system that fails to protect women and children adequately. Furthermore, the historical context of women's subjugation within heterosexual marriages cannot be overlooked when examining gender dynamics in family courts.
In recent years, Canada has passed several laws aimed at addressing gender bias and promoting equality. Bills such as Bill 89 in Ontario, which includes considerations of "gender identity and gender expression" in child protection cases, reflect a growing recognition of the importance of inclusivity and non-discrimination. Additionally, spousal support biases are being challenged in court, and legislative changes are being made to prioritise children's best interests and encourage shared parenting styles.
In conclusion, while gender bias persists in Canada's family courts, there is a growing awareness of its impact on both men and women. Efforts to address these biases through legislative changes and a focus on non-discrimination are ongoing. However, it is essential to remain vigilant and continue working towards a justice system that treats all individuals fairly and equitably, regardless of gender.
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Gender-neutral language in government
In Canada, the federal government and each province and territory have enacted human rights laws that prohibit discrimination and harassment on various grounds, including gender identity or expression, in both the public and private sectors. While transgender rights and protections in Canada vary among provinces and territories, several laws and bills have been passed to promote gender-neutral language in government and society.
In 2012, "gender identity and gender expression" were added to Ontario's Human Rights Code, making it the first jurisdiction in North America to pass such a law. This was followed by several other bills, including Bill 13, which required public schools to have gay-straight alliances and combat "homophobia" and "transphobia." In 2016, Bill 28 removed the terms "mother" and "father" from Ontario law, allowing pre-conception agreements for up to four unrelated and unmarried people to become parents.
In 2017, a bill was passed in New Brunswick to add gender identity or expression to human rights laws and allow gender changes without surgery. Additionally, the Royal Canadian Navy adopted junior rank designations using the gender-neutral term "sailor" instead of "seaman." These changes reflect a broader shift towards gender-neutral language in Canadian society and government.
In 2018, Service Canada issued a directive to its agents, instructing them to use gender-neutral language when speaking to the public. This included avoiding terms like "mother" and "father" and using gender-neutral alternatives like "parent." While the directive faced some criticism and confusion, it aligned with the broader trend of promoting gender-inclusive language in government services.
Canada has also introduced gender-neutral options in official documents. Canadians can now identify as gender "X" on their passports, and a similar option is available for birth certificates. These changes reflect a recognition of gender diversity and a commitment to inclusivity in government services.
Overall, the movement towards gender-neutral language in Canadian government institutions reflects a broader societal shift towards inclusivity and respect for gender diversity. While there has been some resistance and concerns raised, these changes aim to create a more inclusive environment for all Canadians.
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Conversion therapy ban
Conversion therapy is harmful, even when sought by consenting adults. It perpetuates myths and stereotypes that the sexual orientation, gender identity, or gender expression of LGBTQ2+ people are undesirable and that they can or should be changed. In 2023, the United Nations Independent Expert on preventing violence and discrimination based on sexual orientation and gender identity called for the banning of conversion therapy in all settings.
In Canada, a federal ban on conversion therapy has been in place since 2023, with the passing of Bill C-4, an Act to amend the Criminal Code. The bill prohibits the removal of children under 18 from Canada with the intention of undergoing conversion therapy abroad. This addresses the clear harms that conversion therapy poses to children.
Despite the federal ban, a 2024 study revealed that conversion practices remain prevalent in Canada, the U.S., and the U.K. Ashley, who drafted the language for the federal ban and wrote a book titled "Banning Transgender Conversion Practices," noted that organizations are now pitching conversion practices using vague and evasive language. The study found that the prevalence of conversion practices targeting transgender clients is substantially greater than for cisgender clients and is higher among those assigned male identity at birth compared to those assigned female.
The study also highlighted that parents in Canada may unknowingly send their children to conversion therapy when seeking gender care from healthcare professionals. The findings aim to inform federal policy to better protect transgender and other 2SLGBTQ+ groups and reform the existing ban, which has been criticized as rushed and not adequately informed by experts.
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Frequently asked questions
In 2018, a directive was issued to Service Canada employees, instructing them to use gender-neutral language and avoid terms such as "mother" and "father". However, this directive was later corrected, and it was clarified that employees should use the language that Canadians prefer when addressing them.
Bill C-16, also known as Canada's gender identity rights bill, was passed in June 2017. It added the words "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code, protecting transgender and gender-diverse Canadians from discrimination and hate crimes.
Yes, several bills and laws have been passed in Canada to protect the rights of individuals with respect to gender identity and expression. For example, in 2016, a law was passed in Newfoundland and Labrador that allowed individuals to change the sex indicator on their birth registration without the requirement of gender confirmation surgery. Additionally, Bill 89 in Ontario removed the terms "mother" and "father" from the law and permits "pre-conception agreements" allowing four unrelated and unmarried people to become parents.
These laws have sparked debates and concerns among some Canadians, particularly regarding parental rights and counseling. Some critics worry that parents who do not affirm their child's gender identity could face legal consequences, while others argue that these laws may reduce the number of foster families available for children in need.
There have been discussions and concerns raised about potential gender bias in Canada's family courts. Advocates argue for fair and just laws that consider the best interests of the children, regardless of the parent's gender.
