Transgender and Women’s Substantive Equality Discussion Paper, Consultation Paper Bibliography, Case Law Summaries


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Transgender and Women’s Substantive Equality
Discussion Paper, Consultation Paper

Bibliography, Case Law Summaries

September 2003

Prepared by Margaret Denike, Sal Renshaw & cj Rowe

ISBN# 0-895996-80-5


We are grateful for the financial assistance granted to us by the Court Challenges Program of Canada and from the Status of Women Canada for this project. These grants enabled us to conduct extensive research, including the preparation of an annotated bibliography, a discussion paper, and a final report. They also enabled us to bring over 40 participants from across Canada to the consultation.

We are also very grateful to Margaret Denike and Sal Renshaw for the huge amount of work dedicated to this project, and to the other working group members: Andrée Côté, Diana Majury, Kim Brooks and c.j. Rowe.
The Discussion Paper was prepared and edited by Margaret Denike and Sal Renshaw, with contributions from Andrée Côté, Diana Majury and cj Rowe.
The Consultation Report was drafted by Margaret Denike and cj Rowe.
The Bibliography and Case Law Summaries were prepared by cj Rowe

Table of Contents

Transgender and Women’s Substantive Equality: Discussion Paper

Introduction 3

Part 1: An Egalitarian Approach 6

1.1 Women's Substantive Equality 6

1.2 Transgender Human Rights 8

1.3 Intersectional Analysis 11

Part 2: Human Rights Protections 12

2.1. Disability 13

2.2. Sex 14

2.3. Sexual Orientation 16

2.4. Gender Identity 17
Part 3: The Politics of Gender Identity and Sexual Difference 18

3.1. The Need for “Women-Only” Space 18

3.2. Reasonable Limits and Undue Hardship? 22

3.3. Feminist Resistance to Medicalization 25

Questions for National Consultation 31

National Consultation on Transgender and Women’s Substantive

Equality Rights: Final Report: 32

Forward 32

Introduction 32

Understanding Anti-Trans Discrimination 33

Seeking Human Rights Protections 35

Self-identification and its Implications 37

Binary Constructs, Gender Variance, and Gendered Spaces 39

Emerging Issues and Recommendations 40

Conclusion 42

Bibliography 43

Internet Sites and Resources 49

Case Law Summaries

- Canada 54

- United States 60

- Australia 65

- United Kingdom 67

Transgender and Women’s Substantive Equality: Discussion Paper

The aim of this discussion paper is to engage equality advocates on specific questions of relevance to law reform initiatives pertaining to the relation between transgender and women's substantive equality rights. It proposes a framework for the discussions that will be held at the national consultation organized by the National Association with Women and the Law (NAWL) in Ottawa on February 22 and 23, 2003.
NAWL has decided to consult broadly and to work collaboratively to develop an understanding of the issues and concerns relevant to policy development that arise from the rights and needs of transgendered persons and, in particular, to explore the implications of self-identification in different contexts, such as ‘women-only’ spaces and feminist services.
This paper is the result of a collaborative initiative of members of the NAWL Working Group on Transgender issues. It reflects the different opinions and approaches we each have to these issues, and it draws on the suggestions and comments provided by those who reviewed previous drafts of this work. In draft form, this paper was made available for the March, 2002 Biennial Conference and Annual General Meeting of NAWL, and it has been circulated to trans and women's groups and NGOs, equality advocates and policy analysts, and members of academic communities. We are grateful to everyone who participated in the preliminary workshop and who have offered comments and suggestions along the way.

In recent years, we have seen the increased visibility and activism of transgender support groups and equality advocacy. Working from a recognition of the pervasive discrimination faced by transgendered persons—their exposure to violent behavior and unchecked hate crimes; the uncertainty they face in the labour market in light of discriminatory practices and attitudes; and the denial of access to public services, accommodation, and medical care—advocates for transgender rights have been seeking basic human rights protections through policy development and legislative reform. Through a number of successful cases, specifically involving male-to-female transsexuals, provincial courts and human rights tribunals have acknowledged discrimination against trans people, although, with the recent exception of Nunavut, specific protections have not yet been encoded in law.1 Developing appropriate strategies for advancing the human rights and securing such protections remains a critical question engaging equality-seeking groups.

Litigation and law reform initiatives favoring the extension of statutory human rights protections to trans people have raised a number of equality issues pertaining to access to gendered spaces and services. Various members of women's groups and support services have urged consideration that the extension of protections on the basis of ‘gender identity’, such as would require the acceptance and inclusion of male-to-female transsexual women in ‘woman-only’ spaces, has a bearing on women's ability to create and maintain ‘safe spaces’. Such concerns are captured, for example, in a brief submitted by NAWL to the Canadian Human Rights Review Panel in its 1999-2000 review of federal legislation, in addressing the question of adding 'gender identity' as a prohibited ground of discrimination to human rights codes. The submission called for consideration that such protections not operate "in such a way as to undermine the fragile and important efforts that women have made to create spaces for their political and social development, individually and as a group, and for providing support to each other as victims of pervasive male violence and male dominance."2 It also recommended that women's groups be consulted to more fully understand the implications of such law reform initiatives, with attention to their bearing on the substantive equality rights of women.

It is clear that current and on-going litigation in the Nixon case, and related discussions within and between women's groups and services, has polarized some individuals around otherwise basic questions such as how to best advance the rights of trans persons, and/or what could or should be required to (legally) adopt a chosen gender. In our preliminary inquiries and discussions, most women's organizations acknowledged the oppression and discrimination faced by transgendered individuals, and they supported the extension of human rights protections to them. In some circles, however, women may speak as though extending rights to transsexual women could pose a ‘threat’ to the integrity of ‘women-only’ spaces—or as the rights and needs of these groups are antagonistic or mutually exclusive. Of particular concern is the question of whether self-identification can be definitive of gender identity, and whether, for example, women's groups, spaces and services should be fully accessible to anyone who identifies themselves as female; and more generally, when a change of gender must be legally recognized, and how that recognition should be sanctioned in law.

We recognize that within the legal and policy development context, as well as in gendered groups and communities, there are many different notions and stereotypes about what constitutes or determines one's ‘gender’ or defines one's ‘sex’ with respect to civil status. Some individuals have posited that one's self-identification should suffice, although there may be limits to that approach to identity more generally, depending on the social and political context. In law, there is a considerable deference to, and reliance on, the medical profession's biological and anatomical definitions of reproductive ‘sex’, despite widespread acknowledgement of the problems in doing so. Many equality activists and feminist theorists have expressed concern about the medical professions' ability to define and circumscribe sexual difference, and to require surgical intervention for one to be legally recognized as their chosen gender. Such concerns are reminiscent of those expressed against governments, which have imposed identities—and the conditions of membership in identity-based groups—for Aboriginal men and women whose native status has historically been defined for them in ways that are not necessarily in their own interests. Because of these colonialist practices, Aboriginal communities are still struggling to define the boundaries of their identities, and many amongst them would oppose self-identification as the only criteria for membership or status.

With attention to questions about how gender identity is defined, and particularly about the implications and potential limits of self-identification, we aim to develop an inclusive and responsible feminist approach that respects the human dignity of all individuals, within and across our differences, and that promotes and advances the substantive equality rights of all women. We urge consideration of how our law reform initiatives could relate questions of gender identity to the challenges posed by systemic gender-based violence, and to the patriarchal, institutional—judicial and medical—control of sexual identity, and the judicial deference to, and reinforcement of, surgical intervention.

For the purpose of this paper, we focus primarily on the subject of transsexual women, that is, on biologically-born males whose deeply felt and chosen identity is female. We have chosen this focus in part, because the rights of these individuals are the subject of ongoing litigation involving women's groups. However, we hope not to limit the consultation to this subject, and we encourage attention to, and discussion of, the breadth and wealth of experiences of gender diversity.
Part 1: An Egalitarian Approach
1.1 Women's Substantive Equality

In Law. v. Canada, the Supreme Court clarified the general purpose of Charter equality guarantees:

…to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.3

Contemporary feminist legal theorists and equality advocates in Canada have elaborated historically sensitive and contextual theories and strategies based on the notion of substantive equality. Such approaches begin with an appreciation of the differences between us, recognizing that for laws and social policies to have real equality as their outcome, they must take into consideration the real differences between and among the social groups as well as the contexts in which these differences arise. As Elizabeth Sheehy explains, feminist approaches to the law need to attend to the "historical origins of laws and practices, the interests and values furthered and submerged by the law or practice, the specific context of women’s lives, economically, politically, and socially, and the impact upon women, both quantitatively and qualitatively."4 The Supreme Court has recognized that this includes taking into account specific historical and existing disadvantage and attending to the differential impact that laws, regulations and practices have upon them.5 For example, in Eldridge,6 the Supreme Court ruled that treating deaf patients

‘the same’ as other patients is discriminatory, and their specific needs must be taken into account in the provision of sign language and/or interpreters. If they don't do this, hospitals are not providing equal health benefits.

As applied to social policy and feminist praxis, a contextually sensitive understanding of women's vulnerability to sexual violence by men, for example, has led to the mobilization of initiatives, such as establishing safe spaces in the form of crisis centres and support services restricted to women. Taking into account the ways in which women—and particularly racially marginalized women—are systematically exploited and specifically oppressed, many women have worked to create the spaces necessary to empower members from different groups to speak openly, to mobilize against racist and sexist coercion, control, and violence that typify their experience within patriarchal and colonial contexts.
Throughout the women's movement such initiatives have entailed talking about women as women, naming and defining our common and general experiences, while also recognizing that there are important and concrete differences that must also be considered. However, many Aboriginal women and women of colour, among others, have voiced concerns about the racism and essentialism of such ‘naming’ by predominately white feminists, and they have remained critical of the racial, ethnic and socio-economic homogeneity of the category of ‘woman’. Of particular concern are the ways some feminists have generalized about women's experiences while ignoring the specificity of those who suffer compound forms of marginalization. Such productive and self-reflexive critiques that appreciate the substantive differences between women have lent themselves to a fuller appreciation of the systemic nature of patriarchal, capitalist and colonial regimes of power, and of how individuals and groups are very differently positioned in relations of compounded and intersecting oppressions. Only by accommodating differences within a substantive equality analysis can we address the specificity of a group or an individual's needs.

The task for us is to identify if and when these differences matter and to develop contextual analyses that can grasp their implications in relation to varying social, political, and institutional settings. For example, a person's ability to self-identify with respect to gender may have different implications in different contexts, be it a rape crisis service, a women's prison, a place of employment, a sports team, a health facility, or a marriage ceremony. In respecting the human dignity of all persons, and in ensuring that our equality litigation and lobbying initiatives are directed to this end, our theories of substantive equality must continue to be sensitive to context and affirmative of substantive differences, and this includes being cognizant of the specific effects of intersecting systems of oppression.

1.2 Transgender Human Rights
Colonial, patriarchal laws and practices have historically deployed arbitrary distinctions, and reinforced dangerous and degrading stereotypes that have worked to disenfranchise sexual minorities and trans people, to strip them of their dignity and legal capacity, and to reinforce a culture of violence and systemic discrimination against them. The social and legal atmosphere of patriarchal hetero-normativity, which cultivates and institutionally reinforces traditional notions of appropriate gender roles and sexual choices and practices, fuels systemic sex discrimination and the intolerance and stigmatization of all those who do not conform. Members and allies of trans groups and equality advocates have been increasingly vocal about the tragic circumstances of human rights abuses suffered by transsexual men and women in particular, and transgendered persons in general. Of particular concern has been the lack of protections and services available to trans individuals that are afforded other members of society. As clearly elaborated in reports written by barb findlay and other trans equality activists,7 some of the specific and urgent issues include, but are not limited to: access to social services such as homeless shelters, rape crisis centres, medical clinics; access to education, and to public and private health benefits; freedom from hate violence, including sexual assault; fear of repercussion or reprisal in retaliation for asserting one’s ordinary rights, such as speaking out in public; chronic unemployment or under-employment; abusive treatment by law enforcement personnel; public humiliation, derision, ridicule, marginalization and exclusion; and denial of access to public accommodations such as shops, restaurants, and public transportation.

Consider the heightened exposure of trans women to violent hate crimes and the lack of protections currently available to them. Based on limited data from 1995-1999, the Annual Report (2000) on Anti-Lesbian, Gay, Bisexual, and Transgender Violence in the United States, estimates that anti-transgender violence accounts for about 2-4% of all reported incidents, though those incidents accounted for approximately 20% of all reported anti-GLBT murders.8 Furthermore, as noted in a San Francisco study by Susan Stryker,9 one can hardly begin to conflate the vastly different experiences among transgender groups, considering, for example, that compared to only 2% of transmen (female-to-male transsexuals) who report incidents of violence, transwomen (male-to-female) reports account for 98%. As trans equality advocates have noted, compared to gays, lesbians and bisexuals, trans people have little if any recourse to legal protection against discrimination in these areas. So too is their access to support services and shelters limited, compared to non-trans women, as has been documented by Viviane Namaste (2000), Julie Darke and Allison Cope (2002), and Caroline White (2002),10 through their interviews, surveys of shelters and hostels, and reviews of their policies respecting transphobia and trans inclusion.

During its 1999-2000 review of the federal legislation, the Canadian Human Rights Act Review Panel accepted submissions on how specific protections for transgendered persons could be explicitly inscribed and entrenched in law. Different groups discussed the extent to which the systemic discrimination experienced by trans people (which may include individuals and groups as diverse as pre-operative, post-operative and non-operative transsexuals; drag queens and kings; cross-dressers; butch lesbians; and pangendered people, for example) could best be captured under existing grounds such as sex, disability, and sexual orientation, or whether Canada should follow various municipalities in the United States and seek protection under a new category of ‘gender identity.’
Since trans people are subjected to systemic discrimination, and they continue to be denied the basic human rights supposedly granted to ‘all individuals,’ the possibility of achieving full personhood or full benefit of the law—the possibility of social equality—requires substantial social and legal reform. The question is not whether they should be granted rights and freedoms—be they to social services, employment and medical care—but how they should be?
1.3 Intersectional Analysis

As a starting point to thinking about different legal grounds for protection against discrimination, and the relation between them, we urge the importance of adopting an intersectional approach—an approach that recognizes the complexity of how people experience discrimination; that looks at the lived realities of individuals, their experiences of multiple discrimination and the context of society's response to them; that acknowledges that categories of discrimination overlap; and that attends to the systemic and historically pervasive inequalities between social groups.11 Such an approach considers, for example, that discrimination based on sexual orientation may be experienced differently by trans men and women, compounded by racial marginalization, or perhaps exacerbated by jurisdictional issues, such as living in rural areas without access to services or clinics.
Seeking legal protection for socially marginalized groups has always posed unique challenges. Consider how the existing categories have been interpreted by courts and tribunals to date. As Kathleen Lahey notes, “the very forces that have necessitated the creation of special legal mechanisms to protect minimal rights—racism, sexism, heterosexism, and other forms of prejudice—have also exerted pressure on governments, administrators, and courts to construe and apply those rights as narrowly as possible.”12 Such pressure, together with the historical tendency of claimants and courts to focus on a single ground in equality cases—such as race or
sex or sexual orientation, for example—and to treat such grounds of discrimination as if they are mutually exclusive, have had the specific effect, as Carol Aylward and others have argued, of "obscuring the way that discrimination is experienced by women of colour and women with disabilities."13 As is clearly elucidated in the Ontario Human Rights Commission Discussion Paper, An Intersectional Approach to Discrimination, we have witnessed the limitations of a single ground approach, and of a simplistic understanding of the experience and social context of discrimination in various cases.14 Madame Justice Claire L'Heureux-Dubé, in her dissenting remarks in the Mossop case, notes that "it is increasingly recognized that categories of discrimination may overlap, and that individuals may suffer historical exclusion on the basis of race and gender, age and physical handicap or some other combination." To describe and categorize these as primarily racially oriented, or primarily gender-oriented, "misconceives the reality of discrimination as it is experienced by individuals. Discrimination may be experienced on many grounds, and where this is the case, it is not really meaningful to assert it is one or the other."15 More recently courts have accepted claimants' assertions of multiple grounds of discrimination; however, the multiple grounds are each dealt with separately. As of yet, there is no judicial recognition of the intersectionality of grounds, as claims continue to be treated as a series of related, but severable, forms of discrimination.

Part 2: Human Rights Protections
Given that the enumerated and analogous grounds continue to function as the basic mechanism through which to assert humans rights claims, it is important to assess the grounds that are presently available for a transgender complaint and to ask what additional grounds might be necessary to address the range and diversity of discrimination experienced by trans people. Depending on the nature of the discrimination and the claimant's understanding of that discrimination, a claim of transgender discrimination might be made on the following grounds, individually or in combination. Flexibility with respect to the range of potential grounds is a prerequisite for an intersectional analysis in the context of a grounds-based system.
Recent cases brought before human rights tribunals in provincial and federal jurisdictions generally indicate that there is a pressing need to clarify human rights legislation as it pertains to the protection of trans equality rights. Existing grounds that have been invoked include sex, sexual orientation and disability. Considering the limitations of using existing categories, some advocates have suggested that the addition of ‘gender identity’ would specifically and more accurately address the rights of trans people. Recent litigation and on-going discussion has raised a number of important questions concerning both the existing grounds that have successfully been used and the possibilities for new grounds. The following points address certain questions related to each of the existing grounds in the context of trans human rights claims.
2.1 Disability

In the medico-legal context, transgender experience has been narrowly focused on transsexualism, which has typically been approached as an illness that is treatable through sex reassignment surgery and hormone therapies. For example, transsexualism has been described as a ‘disability’ by Ontario and Québec courts,16 as well as by different human rights tribunals.17 Transsexualism also figures in the psychiatric manual, Diagnostic and Statistical Manual IV (DSM IV), under “gender identity disorder,” thus constituting it as both a physical and psychological disorder. In the medico-legal context sex reassignment surgery has been framed as a ‘treatment’ for a gender disorder, rather than as a right to change sex, and the court's tendency to accept disability as a ground for protection further supports this interpretation. One difficulty in moving away from this model is that if surgery is considered elective, most lower income transsexuals would not be able to afford it. Yet another factor that perpetuates the view that gender variance is a disability needing treatment or correction is that for transsexuals to receive health insurance coverage for sex reassignment surgery, the treatment must be deemed "medically necessary." Notwithstanding the benefits for some transsexuals, the ableist and disempowering ways in which transgender has been characterized in the disability context tend to reinforce the idea that gender variation is a pathology.

We need to de-pathologize gender diversity, and recognize that most trans men and women do not experience their gender variance as a form ‘gender dysphoria’ or disability. Nonetheless, and in part because of discriminatory heterosexist and sexist stereotypes, there are specific issues faced by those who do suffer from disabling gender dysphoria or any other type of disability directly related to being trans. As one respondent to this paper has noted, "Many trans people experience disabling depression as a result of intense social marginalization and isolation…. We need to recognize that gender dysphoria/depression from discrimination can be disabling."
2.2 Sex
In Canada, several recent human rights decisions have recognized discrimination faced specifically by transsexual women as discrimination based on ‘sex’;18 that the ground of ‘sex’ includes prohibition against discrimination on the basis of transsexualism; and that transsexuals should be able to benefit from the provision against discrimination based on ‘sex.’19 The Ontario Human Rights Commission, for example, has ruled that “refusal to provide facilities and services based on gender identity is a prima facie case of discrimination based on sex.”

Exclusionary treatment stemming from transgender experience has been understood to be “sex discrimination” according to the principle that human rights legislation is intended to preclude the wrongful oppression of the weak by the strong and the disadvantaged by the advantaged.20 This interpretation differs significantly from the way sex discrimination has typically been understood in equality law. In that context, the focus has been on recognizing the economic, social and sexual subordination of women in the context of a sexist and patriarchal society. Because no other ground of discrimination effectively covers discrimination based on gender transition, perhaps ‘sex’ is being employed as a default category.

In cases where gender identity itself has been contested, courts have applied different tests, often deferring to genetic and chromosomal factors, but in some cases acknowledging the surgical and hormonal reconstruction of the body as well as psycho-social gender transformation. While there have been examples of the courts recognizing that a person's ‘sex’ is their chosen gender identity, whether or not sex reassignment has been completed (as in Sheridan and Maison des jeunes), “the law, in its enforcement and administration, allows for only a minimal capacity to self-declare as transgendered.”21 In Kavanagh, a Canadian Human Rights Tribunal found that, despite the complainant’s subjective identification as female, hormonal therapy and feminine social presentation, Corrections Canada was justified in refusing her access to women’s prisons because she was still “anatomically a male."22 However, in Vancouver Rape Relief, Davies held that the prohibition against discrimination on the basis of sex is broader than the binary notions of female and male, but includes protection from discrimination against an individual who is not readily identifiable as either male or female.23
Regardless of how any trans man or woman identifies, for their gender variance alone, they may be subjected to discriminatory myths and stereotypes, and degrading treatment, based on the kinds of misogynist assumptions (about appropriate sex roles, expressions and behaviors; sexual objectification; and assumptions about availability) that are widely known to have historically subordinated women.
2.3 Sexual Orientation

Contrary to popular assumptions, trans men and women have the same range of sexual orientations as non-trans individuals, invariably identifying as heterosexual, bisexual, non-sexual, etc. While transgenderism and sexual orientation cannot be conflated with each other, it may well be the case that the expression of fear and hatred against a trans person is at once the expression of homophobia, just as it may be of sexism. Not uncommon are stereotypical assumptions, for instance, that those who are gender variant in appearance or manner, and/or those who don't conform to patriarchally conscripted heterosexual and reproductive roles are ‘really gay’. It is widely accepted that protection on the basis of prohibited grounds of discrimination includes protection on the basis of being perceived to be a member of a group, whether or not one actually is. However, as long as it is difficult to demonstrate the specific perceptions and responses of the discriminator, sexual orientation remains a tenuous ground for protection.24

Regardless of whether or not a transsexual person is gay or lesbian, they may nonetheless be directly impacted by laws that discriminate on the basis of sexual orientation. Consider, for example, the legislated ban on same-sex marriage, and its impact on trans people. In marriage-annulment and related cases the courts have taken the opportunity to define the ‘sex’ of litigants, irrespective of their chosen gender identity. The courts' definitions typically draw heavily on biologically determininist and essentialist medical models that make no room for gender variance and that see sex strictly in terms of procreativity. Reminiscent of archaic religious myths and doctrine about the respective "duties" of wives and husbands, these nominative impositions are made in such a way as to preserve the heterosexist tradition of marriage as a rite/right reserved strictly for members of the opposite sex, whose sex and civil status was medically assigned at birth. We see this apparently morally – and politically – motivated reasoning at play in cases where the courts have annulled marriages and granted exemptions from spousal support and insurance claims, because one of the partners had previously transitioned or was planning to transition, and in effect, was found not to be in a heterosexual union.

British, Anglo-American and Canadian case law is replete with examples of transsexual marriages being annulled because the partners are subsequently considered to be of the same sex. Consider the precedent set by the notorious Corbett (1970)25 decision in the UK, where the marriage of a transsexual woman to a non-transsexual man was annulled despite the fact that sex change surgery had occurred. And again, consider the 1984 decision in M v. M,26 where a P.E.I. court annulled a marriage after the wife informed her husband that she intended to live her life as a man. When nullifying the marriage, the court also referred to the wife’s inability to have “natural” sexual intercourse. These examples reflect the lengths to which the courts will go to preserve the tradition of marriage for potentially procreative, heterosexual couples, and the paradoxes they are willing to live with in doing so. Although Canadian law allows for a legal change of ‘sex’ identity, it's no coincidence that certain provincial legislation specifies that one cannot be married at the time that one applies to change one's ‘sex’ designation on their birth certificate. In its deference to medical practice, this rule is an important key to understanding how the current laws dictating the terms and conditions of gender identity and civil status (namely, the Vital Statistics Act), play out in other contexts to perpetuate heterosexist bias and discrimination against gays and lesbians.

2.4 Gender Identity
Various equality advocates have lobbied for the addition of ‘gender identity’ as a ground of protection under human rights legislation. In our ongoing research, discussions and consultations thus far, we have become increasingly aware of the importance of pursing and supporting this legal reform, especially considering the multi-faceted and systemic nature of discrimination born of sexist, ableist and racist stereotypes, myths and norms —and the limitations of the existing and available grounds. ‘Gender identity’ could offer protections to those who ‘fall through the cracks’ of existing grounds. Moreover, this possible ground is not over-determined by previous jurisprudence, as might be the case for sex, sexual orientation, and disability, and it would potentially protect a greater range of gender variant people than do the existing categories.
In its submissions to the Canadian Human Rights Act Review Panel, TransAction urged that the amendments be broad enough to capture the greatest range of diverse forms of gender expression, protecting individuals who are differently situated as transgendered, whether or not they identify as trans. In recommending that ‘gender identity’ be added as a prohibited ground of discrimination, it clarified that this means "protection against discrimination for anyone who, temporarily or permanently, is, or is perceived to be, a member of the gender other than his or her assigned gender."27 This echoes the policy analysis and recommendations developed by Paisley Currah and Shannon Minter,28 as it does those implemented in many municipal jurisdictions in the U.S. where ‘gender identity’ or ‘gender expression’ has already been included in anti-discrimination legislation as a basis for protection.

The final report of the Canadian Human Rights Act Review Panel supported this position, noting that this category would grant a new “visibility” of transgendered people in law, and would allow for case-by-case development of how this term is to be interpreted.

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