Ontario

Arrest/Detention

If you are arrested, you have the following rights as per the “Policy for the Admission, Classification, and Placement of Trans Inmates” passed in response to a 2012 amendment that added gender identity and gender expression to the Ontario Human Rights Code:   

  1. Staff must be sensitive during searches, including providing explanations and allowing you to ask questions  
  2. The right to choose the gender of the person searching you, including having someone of different genders search different parts of your body  
  3. The right to be searched in a private space, including searches of prosthetics 
  4. Any conversations about your gender identity or expression should take place in private  
  5. The right not to have information about your gender identity or expression shared with anyone to whom it is irrelevant or who is not directly involved with you 
  6. The right to consultation about your care, to ensure that your needs are assessed and accommodated on an individualized basis 
  7. Self-identification as a primary tool of classification, regardless of what legal documents say in regard to your gender/sex 
  8. The right to be referred to by your correct name and pronouns, both in written and verbal communication, except in rare situations where it is necessary to refer to you by birth name or pronouns 
  9. The right not to have previous admissions used to make assumptions about your gender identity or expression, or housing wishes  
  10. The right to be placed in an institution that reflects your gender identity or housing preference, to be consulted in this decision, and to be informed as to why you are being placed in a certain institution 
  11. The right to be integrated, not isolated, from the general community. If the prison decides that they must isolate you, they need to provide programming and social opportunities as often as possible 
  12. The right to keep personal items, including prosthetics, that are necessary for your gender expression while imprisoned and while being transferred 
  13. The right to be given your preferred clothing and underclothing while imprisoned, for court appearances, and upon release 
  14. The right to individual and private access to showers and toilets  

To file a complaint if these rights have been violated, you can contact the Client Conflict Resolution Unit (CCRU). The CCRU can be contacted via telephone at: 0-866-535- 0019 from Monday to Friday between 9:00 a.m. and 4:00 p.m. 

If you wish to file a written complaint, you may write to the CCRU at the following address: 

Client Conflict Resolution Unit at Ministry of Community Safety and Correctional Services 

25 Grosvenor Street, 16th Floor 

Toronto, ON M7A 1Y6 

Sources: Toby’s Act, S.O. 2012 C.7Human Rights Code, R.S.O. 1990, C.H. 19; Ministry of Community Safety & Correctional Services, “Corrections – Trans Inmate Policy”Ontario – Corrections Client Conflict Resolution Unit

Children's Rights

Bill 89, the Child, Youth and Family Services Act, passed in 2017, and made several changes to children’s rights that impact Two Spirit, trans, and gender non-conforming children. These include: 

  1. Implementing protections for children on the basis of gender identity and gender expression 
  2. Changing what should be taken into consideration when making decisions in the best interests of a child so that parents can direct a child’s education and religious upbringing, but that must be done in accordance with the child’s own beliefs, not just with the beliefs of the parents  

Sources: Child, Youth and Family Services Act, 2017Ontario Ministry of Children and Youth Services – Announcement. 

Employment

Employers violate the Ontario Human Rights Code when they: 

  1. Directly or indirectly infringe on the Code, regardless of intention 
  2. Authorize, condone, adopt, or ratify behaviour that is against the Code 
  3. Constructively discriminate 

This means that employers are also liable if one of their employees is discriminatory within the workplace, even if they actively discouraged it. They could also be liable for instances away from the physical workplace, but which have implications or repercussions in the workplace. The Human Rights Tribunal does take into account proactive steps employers have taken to prevent discrimination.  

Unions are also required to treat members equally and to take steps to prevent and address discrimination against union members. If they do not do so, that does not make the employer less liable for doing so. Regardless of if protections for human rights are explicitly included in collective agreements, the Human Rights Code is still incorporated into every agreement.  

Unions and employers share responsibility to provide reasonable accommodation. This means that: 

  1. When making a rule in a collective agreement, unions and employers must make sure the rule does not discriminate  
  2. Unions share the obligation to address the source of any discriminatory effects 
  3. Unions must support an employer as they try to comply with the Human Rights Code 
  4. Unions need to consider a duty to accommodate when representing members  
  5. Significant interference with the rights of others may justify a union’s refusal to agree to an accommodation measure  
  6. Employers and collective agreements cannot contract out of the provisions of the Ontario Human Rights Code (i.e. include a clause in a contract that goes against a section of the Code) 

It is discriminatory for employees to need to join a union group based on gender or any other Human Rights Code ground.  

If you are experiencing or have experienced sexual harassment or assault at work, including harassment based on sexual orientation, gender identity, or gender expression, you can access free legal advice from the Sexual Harassment and Assault Resource Exchange

Family Law

The 2016 All Families Are Equal Act provided new protections for 2SLGBTQ+ families. These include: 

  1. A clearer process by which the parents of a children are defined, which includes families using assisted reproduction techniques  
  2. This allows two or more people who previously agreed in writing to be parents of a child together to be that child’s legal parents upon their birth   
  3. This also allows parents through surrogacy to register when the child is born 
  4. Removing any differences in legal rights based on if someone is considered a “mother” or a “father” legally 
  5. Allowing parents to register as a parent instead of as a mother or father of a child 
  6. Parents can choose not to display a sex designation on their child’s birth certificate  

Case law has determined that a parent being Two Spirit, trans, non-binary, or gender non-conforming, or the gender identity of a parent more broadly, is not relevant in custody matters. Courts are meant to base custody determination only on the ability and willingness of a parent filing for custody to provide a safe, caring, secure, and stable home for the child. 

Sources: Children’s Law Reform ActCLEO – “Separation and Divorce”Forrester v Salida, [2000] WDFL 714 at para 19, 99 ACWS (3d) 99 (Ont Ct J); Boyce v Boyce, 131 ACWS (3d) 272 at para 26, [2004] OJ No 2251 (Ont Sup Ct); Joanna Radbord, “Same-Sex Parents and the Law” (2013) 33 Windsor Rev Legal & Soc Issues 1 at 14. All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23 – Bill 28; 

Gender Marker

You will need to submit different documents to change your gender marker depending on your age. The fee for this change will be waived until October 31, 2022, but a fee of $25-35 to receive a new birth certificate still applies. You will be allowed to change your gender marker even if you have not or do not plan on undergoing any gender affirmation surgery. You can change your gender marker to F, M, or X.   

For all ages, you must meet the following requirements:  

  1. Your birth must have been registered in Ontario   
  2. Return all previously issued birth certificates    

For adults (age 18 or older), follow the following steps:  

  1. Complete the application form   
  2. Complete the statutory declaration form, and sign it before a commissioner for taking affidavits (such as a lawyer, notary, or MPP) 
  3. Get a letter from a practicing physician or psychologist supporting your application 
  4. Complete an application for a birth certificate    
  5. Submit your application to Service Ontario  

If you are 16 or 17, you can apply as an adult or as a child.  

For youth (age 15 or under), follow the following steps:  

  1. Complete the application form  
  2. Have someone with custody of you complete the statutory declaration,  and sign it before a commissioner for taking affidavits (such as a lawyer, notary, or MPP) 
  3. Complete a consent form 
  4. Have any other people with custody of you complete consent forms  
  5. Give every adult with access to you (regardless of if they have custody) who has not filled out a consent form with notice of the change, and keep proof of notice 
  6. Get a letter from a practicing physician or psychologist supporting your application 
  7. Complete an application for a birth certificate  

Health Cards 

As of June 13, 2016, the Ontario government is now issuing health cards that do not have a sex marker indicated. These health cards are still considered a valid form of identification, with one exception: passports. Health cards that do not indicate the applicant’s sex cannot be used as a form of identification for passport applications or renewals. 

There is no fee to get a new health card. 

Driver’s Licenses 

As of May 1, 2017, the Ontario government began issuing driver’s licenses that have an ‘X’ option for gender. Gender identity is therefore the default information that is collected, used, retained, and displayed on government forms and IDs. Sex designation is only collected and used when it is required to deliver, monitor or improve the product or service. 

If you wish to change your gender marker on your driver’s license to ‘X’, you must visit a Service Ontario centre; no supporting documents are required. For further information, click here. 

If you wish to change your gender marker from ‘F’ to ‘M’ or ‘M’ to ‘F’, supporting documentation is still required, in either the form of a letter(s) from a doctor/surgeon/psychologist registered in Ontario or documents from a recognized specialist related to surgeries undergone. That said, surgery is not required to change your gender marker, documents from a physician who did your surgery simply is support for the change. 

For more information, click here. 

Sources: Service Ontario – Changing Sex Designation on Your Government IDs, Service Ontario – Changing Your Sex Designation on Your Birth Registration and Birth Certificate, Service Ontario – Gender on Health Cards and Driver’s Licenses

Housing

Gender identity is specifically listed as a prohibited ground of discrimination in accommodation, including in rental housing, in the Ontario Human Rights Code. This entitles you to equal treatment and to be free from harassment or discrimination by a landlord, an agent of a landlord, or other tenants. You also have the right to be free from harassment or discrimination based on the gender identity of other people you associate with (for instance, if a trans partner moves in with you). The only exceptions to this rule are if the entire housing is restricted to one gender or if you share a kitchen or washroom with the owner or owner’s family.  

The Ontario Human Rights Commission defines discrimination as “negative treatment or impact” based on gender identity, regardless of intention. It does not have to be direct or obvious, and can include any situation where you were put at a disadvantage because of your gender identity.  

Harassment is also a form of discrimination, and it includes comments or behaviour that should be known to be unwelcome. A single comment can be considered discrimination or harassment depending on what was said. This definition is broad, and can cover many situations. The key factor is if you were negatively affected, regardless of intention.  

As a tenant, you also have rights to be protected against illegal rent increases, evictions, or other unjustified actions by your landlord. Eviction is limited to certain specific causes, and rent increases must fit within the annual percentage change in the Consumer Price Index for Ontario.  

Some of these areas are covered under the Human Rights Code, and others under the Residential Tenancies Act. Because of that, some cases should go to the Human Rights Tribunal and others to the Landlord and Tenant Board 

In many cases you could bring your claim of discrimination to either the Landlord and Tenant Board or the Human Rights Tribunal, depending on the desired result. Generally, the Landlord and Tenant Board will deal with matters that directly relate to landlord-tenant relationships, for example, a bad faith eviction. Where a landlord fails to uphold their legal responsibilities to the tenant, you can file a claim against them at the Landlord and Tenant Board to either delay, stop or be compensated for the wrongdoing of the landlord. The Human Rights Code applies as well; it is simply a different process with different tests and results. 

If you decide to make a complaint, you must do so within one year of the latest incident. You are responsible to prove that you experienced discrimination if you file a complaint with the Human Rights Tribunal. 

Human Rights

Gender identity and gender expression are protected under the Ontario Human Rights Code. The Code defines gender identity as each person’s internal and individual experience of gender and gender expression as how a person publicly presents their gender. More information can be found here 

This gives you certain rights in many areas of life, including housing and employment (covered in other sections on this page). 

If you have been discriminated against due to your gender identity or gender expression in a way that is protected under this Act, you can file a complaint with the Ontario Human Rights Tribunal.  The Human Rights Legal Support Centre offers free legal advice and representation to anyone in Ontario, regardless of age, income, or immigration status, who has experienced a human rights violation.

If you file a complaint, you will have to prove discrimination by showing a link between what you experienced and one of the prohibited grounds of discrimination (ie your gender identity or gender expression). If your gender is only part of the reason for negative treatment, this is still enough to prove discrimination. Ask yourself these questions to help figure out if you can prove discrimination: 

  1. Do you have personal characteristics listed as a prohibited grounds of discrimination?  
  2. Were you treated differently than others? 
  3. If you were treated the same as others, did this put you in a different position or have a different impact on you?  
  4. Did this have a negative impact on you or put you at a disadvantage?  
  5. Is there evidence to show a link between the treatment and the impact you experienced?  

In a hearing, both parties will provide relevant evidence to prove facts. This evidence can include oral (what is said under oath, or as testimony) and documentary evidence (written records, photographs, electronic records, and physical evidence).  

Name Change

You will need to submit different documents to change your name depending on your age. The fee for this change is $137. 

For all ages, you must meet the following requirements:  

  1. Have lived in Ontario for at least one year before applying    

For adults (age 16 or older), follow the following steps:  

  1. Complete the application form  
  2. If you are 16 or 17, get consent from anyone who has legal custody over you. If you are 16 or 17 you can also apply through the child application form 
  3. Have the application signed by a guarantor 
  4. Submit the completed form and all required documents to Service Ontario   

For youth (age 15 or under), follow the following steps:  

  1. Have a parent/guardian complete the application form   
  2. Get written consent from all people who have custody of you, or a copy of a court order saying you do not need consent    
  3. Give notice to anyone who legally has access to the child (this procedure is outlined in the application form) 
  4. Have the application signed by a guarantor 
  5. Submit the completed form and all required documents to Service Ontario     

Note that all name changes in Ontario are published in the Ontario Gazette, which can be searched online. Any Two Spirit, trans, non-binary or gender non-conforming people who do not want their name change published can submit a request form for non-publication.  

Sources: Service Ontario – Change Name