Does the Ontario Human Rights Code Really Provide Protection for all Crossdressers?

[Veronica27]

The lead in to the transgender portion of the Ontario Human Rights Code includes the following passage

"People who are discriminated against or harassed because of gender identity are legally protected. This includes transsexual, transgender and intersex persons, cross-dressers, and other people whose gender identity or expression is, or is seen to be, different from their birth-identified sex."

So far, so good. The inclusion of gender expression can be taken as applicable to those male crossdressers who identify completely as male but like to dress in female clothing from time to time.

The code then goes on to define gender identity as:

"Gender identity is linked to a person’s sense of self, and the sense of being male or female. A person’s gender identity is different from their sexual orientation, which is also protected under the Code. People’s gender identity may be different from their birth-assigned sex, and may include:...."

It then lists definitions of various categories of people who fall under this definition such as transgender, transsexual, intersex and crossdresser and finally a definition of "trans" as being an umbrella term for them all.

Crossdresser is defined as:

"A person who, for emotional and psychological well-being, dresses in clothing usually associated with the “opposite” sex."

In other words if a crossdresser does so because of his sense of gender identity he is covered.

But the code also includes gender expression, which should apply to crossdressers particularly, and is defined as :

" Gender expression refers to the external attributes, behaviour, appearance, dress, etc. by which people express themselves and through which others perceive that person’s gender"

In other words, others must perceive the expression to be your "gender" Where does this leave the non-passable crossdresser, who has no gender issues and simply wants to appear somewhere in female clothing? Tranny bashing anyone? It may be legal under the Ontario Human Rights Code. I guess we still have to rely on the Criminal Code to protect us.

Veronica

[GaleWarning]

I should imagine that, if you are a crossdresser, you will be covered.
There is nothing there, as far as I can tell, which would say otherwise.
You crossdress. You are a crossdresser. Period.

[Julogden]

From what I can see, that covers all CD's, passable or not, gender identity issues or not. Gender issues are not required to be covered from what I can see from the wording. A male wearing women's clothing is a form of gender expression and one doesn't have to have gender identity issues to qualify in that manner.

Carol

[Beverley Sims]

Looking at it quickly it seems to apply quite well.
I would have to say yes, on the surface.

[Marleena]

Everything always looks good on paper. People always find ways around things and it doesn't mean it will be enforced either without a lawyer.

Yes, a Cder is "protected" here.

[Melanie Sykes]

Selectively snipped:

"People who are discriminated against or harassed because of gender identity are legally protected. This includes transsexual, transgender and intersex persons, cross-dressers..."

Crossdresser is defined as:

"A person who, for emotional and psychological well-being, dresses in clothing usually associated with the “opposite” sex."

I'm no expert but it seems to me there's little room for doubt there: it includes all cross-dressers, passable or not. The inclusion of the term "sex" specifically avoids possible confusion with gender identity, and says basically that if you have male parts and wear traditionally female clothing then you are covered. Obviously the same will apply in reverse to FTM cross-dressers.

[sandra-leigh]

If it is generally used as a marker of gender, and if you self-express by way of it, then you are covered by that last bit. "by which people express themselves" does not require that what you are expressing be a gender difference; it could be a political expression or an artistic expression or an expression against "authority" or "an expression against the complacency of society" or an expression of anything else within you.

[linda allen]

I think only a good lawyer can answer that question reliably. Everyone else can guess or give it their own interpretation, but lawyers understand these things.

The real question is, are you willing to be a test case? Have your picture and story in the papers and on TV? Go to court? For most of us, I'll guess the answer is "no".

[Promethea]

I agree with Linda, a lawyer would be the best to answer this.

However, it does look to me like stating CDs are protected and then defining crossdresser as "A person who, for emotional and psychological well-being, dresses in clothing usually associated with the “opposite” sex.", already protects all CDers. The definition of gender expression doesn´t modify that first definition. If anything it clarifies other things said in that part of the code.

And "through which others perceive that person’s gender" doesn´t mean you have to be passable. It´s talking about gender, not biological sex, and what others see, not what others believe. It doesn´t matter if you pass or not, by that definition and by the code, if you clearly present yourself as female, even if it´s clear you were born male, you have to be taken as female.

[I Am Paula]

It's the same question as Ontario's bathroom law. It says 'reasonable gender presentation'. That implies that wearing a dress, while sporting a goatee, one would still have to use the men's room. There is always reason for interpretation, that's why there are lawyers. I think that some common sex markers are called into play. Boobs and purse= female, beard and bulge= male. We can't have gender police checking credentials. WE know that gender has variables, but Jane Doe doesn't.

[Lorileah]

Is anyone going to ask the questions that will determine if it is gender expression or just the love of the clothing? I doubt it. Unless something really strange happens it will be taken for what it says and no one will challenge it. It gives a pretty broad protection

[giuseppina]

Employers have ways around this type of legislation, typically by claiming misconduct, poor performance, etc. The onus of proof of discrimination is on the terminated employee. The standard of proof of discrimination and monetary cost are generally high.

Anyone can be fired for performance reasons by documenting every mistake the employee makes.

The same thing, as a rule, happens to whistleblowers.

[Veronica27]

Thanks for all the great responses so far. Bill Clinton is famous for saying "It depends on what the meaning of is is." In our case the key little words are "may" and "and". "People’s gender identity MAY be different from their birth-assigned sex, and MAY include:...." crossdressers", But if a crossdressers' gender identity did not differ from his birth-assigned sex he would not qualify for protection under the gender identity part of the code.

That leaves gender expression as the only form of protection for those type of crossdressers. To qualify, both halves of the definition of gender expression must apply because of the word "and". "...by which people express themselves AND through which others perceive that person’s gender" Gender expression means simply that Gender related means (as viewed by society) are being used for self expression, which could be a desire for role playing, escape, relaxation, artistic expression and so on. The kicker is the second half of the requirement "through which others must perceive the person's gender", If they are passable, their gender is perceived to be female which is not the case. If they are not passable, their gender is perceived to be male, but the image they attempt to project is culturally female, but not their true identity. Either way the wording of the code may not be providing the expected protection.

It may indeed be a matter for the lawyers, and may the best debater win.

Veronica

[Promethea]

I really don´t think the meaning you´re giving to the word "perceive" is accurate. If you don´t pass, it means they do see your sex is not the same as your gender, but usually there are enough cultural clues to tell people what the gender you´re portraying is, unless you dress in a really androgynous way.

[Frédérique]

Crossdresser is defined as: "A person who, for emotional and psychological well-being, dresses in clothing usually associated with the “opposite” sex." In other words if a crossdresser does so because of his sense of gender identity he is covered.

I have a question – would you, the crossdresser, be required to PROVE you’re a crossdresser, and not something…else? If so, how would you go about it? Who decides, and why? I’m not a Canadian citizen, but, I must say, I wouldn’t want a government to “cover” me in any way. In any event, my sense of gender identity is never in question, no matter what the well-meaning liberal experts, or purveyors of communal precepts, may espouse…

But the code also includes gender expression, which should apply to crossdressers particularly, and is defined as : " Gender expression refers to the external attributes, behaviour, appearance, dress, etc. by which people express themselves and through which others perceive that person’s gender" In other words, others must perceive the expression to be your "gender" Where does this leave the non-passable crossdresser, who has no gender issues and simply wants to appear somewhere in female clothing? Tranny bashing anyone? It may be legal under the Ontario Human Rights Code.

This reminds me of something I heard recently: “Never try to fit into society – let society wrap itself around you.” Again, I’m not Canadian, but my penchant for appearing somewhere in female clothing is a highly personal mode of expression, and I wouldn’t wish the government (of any nation) to get involved in issues of personal expression. If I, the so-called tranny, am bashed, then it is my responsibility. Either way, I KNOW what I’m doing – can any government, theoretically elected by the people, make the same claim?

[Veronica27]

I really don´t think the meaning you´re giving to the word "perceive" is accurate. If you don´t pass, it means they do see your sex is not the same as your gender, but usually there are enough cultural clues to tell people what the gender you´re portraying is, unless you dress in a really androgynous way.

Some crossdressers are extremely passable and self-identify as female, at least while dressed.
Some crossdressers are extremely passable but do not self-identify as female at any time.
Some crossdressers are not very passable but still self-identify as female at least while dressed.
Some crossdressers are not very passable and do not self-identify as female at any time.
Some people dress in a very androgynous manner which says little about their gender identity or expression.

Self-identity, self-expression and other's perceptions of them are very subjective issues and cannot be adequately quantified in any meaningful way for purposes of writing such legislation. There will always be ambiguities and room for interpretation that enable challenges to the intent of such laws.

Veronica

[Veronica27]

I have a question – would you, the crossdresser, be required to PROVE you’re a crossdresser, and not something…else? If so, how would you go about it? Who decides, and why? I’m not a Canadian citizen, but, I must say, I wouldn’t want a government to “cover” me in any way. In any event, my sense of gender identity is never in question, no matter what the well-meaning liberal experts, or purveyors of communal precepts, may espouse…



This reminds me of something I heard recently: “Never try to fit into society – let society wrap itself around you.” Again, I’m not Canadian, but my penchant for appearing somewhere in female clothing is a highly personal mode of expression, and I wouldn’t wish the government (of any nation) to get involved in issues of personal expression. If I, the so-called tranny, am bashed, then it is my responsibility. Either way, I KNOW what I’m doing – can any government, theoretically elected by the people, make the same claim?

I may be somewhat paranoid, but I have always viewed the encroachment of the "transgender concept" as being very similar to political correctness in that it is an effort to stifle individualism and self-expression, and place everyone in a controllable, homogenious non-thinking pool in order to further the agendas of a self appointed elite. Under the guise of strength through numbers, they are instituting a form of mind control which among other things brings about legislation such as the example I have quoted.

Such laws are unworkable without considerable uniformity of the masses. The intent of my post was to point out how such laws are in fact somewhat ambiguous, and to do so in a non-political way. I guess I must thank you for bringing out some of my basic concerns here. Other than through the criminal code, there is little any government can do to protect my desire to crossdress, nor do I want it to be subject to any governmental controls.

Veronica

[Vickie_CDTV]

I just often wonder how much trust I can place in a government to protect me; when that same government picks and chooses what laws it wants to enforce and does not want to enforce (depending which way the political winds blow), what faith can I have in them? I am "transgender" in the broadest sense, but I only dress very occasionally and am otherwise unremarkable... what if I am deemed not quite "special" enough for them to score political points? Will they still bother going to bat for me? What if the political winds blow and being seen as supporting trans issues is no longer "en vogue" politically? Will they just choose to ignore the laws they passed like they do with other things?

[Veronica27]

I just often wonder how much trust I can place in a government to protect me; when that same government picks and chooses what laws it wants to enforce and does not want to enforce (depending which way the political winds blow), what faith can I have in them?

None.

I am "transgender" in the broadest sense, but I only dress very occasionally and am otherwise unremarkable... what if I am deemed not quite "special" enough for them to score political points? Will they still bother going to bat for me?

No.

What if the political winds blow and being seen as supporting trans issues is no longer "en vogue" politically? Will they just choose to ignore the laws they passed like they do with other things?

Yes

Sincerely

Veronica

[Dianne S]

I just often wonder how much trust I can place in a government to protect me

Maybe it's because I'm Canadian, but I disagree somewhat with the general opinion on this thread. I think the government can play a valuable role in protecting minorities. Here in Canada, at least, the government is held somewhat in check by the Supreme Court which has often forced recalcitrant governments to respect human rights and equality principles.

I don't have the reflexive distrust of government that many do. Canada is a democracy and we elect our government; they're certainly more accountable to us than corporations, special interest groups, and others that don't have to account to the people as a whole. Our government is far from perfect, but overall Canada's a pretty good place to live and part of the reason (I believe) is our democratic system.

[rita63]

I agree with Dawn "Toby's law" as the Ontario human rights bill is called does reflect a real desire of the community to see trans people treated fairly. Yes we still have a lot of kooks and haters and just screwed up people who will try to get away with what they can. But we can stand up and say no if we stand together and make our communities places worth living in. Laws can never do that only people can.

hugs rita