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My first question is what's the difference between the Canadian Human Rights Act and the Ontario Human Rights Code? Is one simply federal and the other state law?

Also, I was reading the following journal article (https://www.utpjournals.press/doi/full/10.3138/utlj.2017-0073), and it transitioned from the CHRA to the Ontario Code:

"The question of whether the non-discrimination requirements (in CHRA) will include the right to be identified by a person’s gender pronoun has arisen in reference to Ontario’s Human Rights Code and, in particular, the Policy on Preventing Discrimination Because of Gender Identity and Expression, which was published by the Ontario Human Rights Commission."

Are provisions from the Ontario Code being used to define terms (discrimination) in the federal CHRA act and subsequent C-16 amendment?

Finally, people keep saying C-16 won't compel speech, but if the Ontario Code is being used to define parts of the CHRA, doesn't this interpretation from the Ontario Human Rights Commission (http://www.ohrc.on.ca/en/questions-and-answers-about-gender-identity-and-pronouns) specifically say misusing pronouns will be considered discrimination?

"Refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity, or purposely misgendering, will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education. The law is otherwise unsettled as to whether someone can insist on any one gender-neutral pronoun in particular."

It sounds like employers will be compelled to refer to their employees with certain pronouns.

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On the subject of compelled speech, after a few hours of going down a rabbit hole of research, I've not really uncovered anything more definitive than your OHRC quote.

I'll note that it's possible to avoid compelled speech by avoiding pronouns and using proper names, this is in fact suggested by the links you provide. This could of course be cumbersome.

On your secondary questions:

My first question is what's the difference between the Canadian Human Rights Act and the Ontario Human Rights Code?

Broadly, yes, the distinction is federal/provincial. They likely have many of the same goals, but are restricted to their respective legislative domains.

Are provisions from the Ontario Code being used to define terms (discrimination) in the federal CHRA act and subsequent C-16 amendment?

Probably not. The CHRA does not contain a definitions section and specifically doesn't define the terms "gender identity" or "gender expression" introduced in bill C-16.


As an aside, I did find a few instances in BC of courts and human rights tribunals enforcing use of pronouns preferred by the transgender person, but none in an employment context (1, 2, 3).

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  • You're right (I removed it). I'm still hoping to find more clarification on the connection between the CHRA and the Ontario Code. The University of Toronto journal article seems to suggest there's a connection between the two. Specifically, the Ontario Code's position on pronoun use as part of the CHRA's definition of discrimination. – user27343 Jul 4 '19 at 22:52
  • @user27343 I read that article more as the writer is taking the Ontario code as a guide, since perhaps the federal law is less clear on the matter, whereas the Ontario Human Rights Commission has at least articulated a (legally non-binding) opinion on the subject. Or maybe it's partially because the university itself is in Ontario, as is the professor who championed opposition to C-16. Perhaps if the article was written in 2019, they would have used BC as an example since we now have case law from that province. This is all speculation though. – DPenner1 Jul 4 '19 at 23:08
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    What was confusing about the U Toronto article was that at first, it described how C-16 doesn't mandate pronoun use. It may not define pronoun use as "hate speech," but it's definitely part of the "discrimination" definition for the Ontario Code. And as you already found, pronoun use has been enforced in BC. So while it may not be a part of C-16, other Canadian provinces are compelling speech. It will be interesting to see how it plays out in the Supreme Court of Canada. They can easily incorporate the Ontario Code guideline into the definition of "discrimination" for C-16. – user27343 Jul 5 '19 at 0:35

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