opinion & features

Human Rights Commission clarifies rules

It can safely be assumed that Dianna Scarth, executive director of Manitoba’s Human Rights Commission, is not a friend of any kind of hate speech.

So it was amusing to hear her use the verboten H word in a recent interview about her organization’s plans to update and clarify the wording of some of their guidelines—all part of a plan to better educate the public in general about rights and responsibilities in the minefield of discrimination.

“I absolutely hated our old website and found it very bland,” she told Outwords. “It was created when websites were fairly new and it was rather dull. By contrast I am very excited about our new one which is being launched in mid April. The new one will have more clarity and be a lot more modern and interesting.”

Fortunately, hating a website—especially your own—isn’t against the law.

Educating people about human rights is one of Scarth’s main aims and she’s excited about the enthusiasm of younger people for local, national and international human rights, noting that commission members are expanding their educational efforts with youth conferences and the addition of youthful celebrities and role models in their public service announcements and TV advertisements.

Scarth was keen to explain to Outwords why they’ve just updated and clarified the wording of a new document: Guidelines On Protections From Discrimination On The Basis Of Gender Identity.

Most people understand what it means to be gay or lesbian, but there is a lot of confusion still in the public’s mind around other sexual identity issues such as people who are transgendered, intersex or whatever. The new document clarifies what each category means and so is more inclusive of when discrimination is a legitimate accusation forming the basis of a complaint.

For instance people who are gender variant have an expression of gender identity that does not conform to the dominant norms for boys and girls, men and women. Persons who are intersex are born with both male and female sex attributes.   Some persons who are intersex take steps to align their physical appearance with their felt sense of being male or female, including changes to their physical appearance and dress, along with medical treatment.

This updated version of gender identity also notes some Aboriginal persons who are gay, lesbian, bisexual or transsexual (GLBT) identify themselves as two spirit.

It also notes that  ‘Persons who are transsexual have a gender identity that differs from their biological sex and take steps, or seek to take steps, to align their physical appearance with their felt sense of being male or female.  Steps might include changes to their physical appearance and dress, and medical treatment such as hormonal therapy and surgery.’

The whole field of sexual identity and gender identity is a lot more subtle than most people once believed so the guidelines and protocols need updating.

Gender identity refers to ‘a person’s internal, individual experience of gender’, according to the Commission, which will be posting its new document on its revamped website as well as offering hard copies at their Pride booth at The Forks on June 6.

The new guidelines say a person’s sexual orientation ‘refers to whether a person’s romantic, affectional or sexual attraction is heterosexual (“straight”), homosexual (“gay”, “lesbian”) or bisexual (“bi”).’

The Code clearly prohibits unreasonable discrimination based on sexual orientation, but this now includes, importantly, discrimination based on gender identity.

Discrimination under The Human Rights Code means treating a person or group differently-- to their disadvantage and without reasonable cause-- in a protected activity (such as employment) on the basis of a protected characteristic such as sex or orientation. This now clearly includes gender identity.

Failure to reasonably accommodate a special need that is based on a protected characteristic, such as gender identity is now considered discriminatory, as is harassment.

Employers, landlords and service providers can also be held responsible for the discriminatory actions of their employees. Employers, landlords and service providers are being encouraged to inform their employees about the requirements of The Human Rights Code and to ensure their obligations under The Code are being met.
At a practical level Scarth says discrimination may sometimes be quite unintentional and just based on old ideas and an old way of doing things.

 “Service providers such as restaurants, hospitals, landlords, movie theatres may just not be aware that gender identity is in fact a human rights issue and you cannot discriminate based on it,” she says.

Recently for instance, provision of washroom facilities for  transgendered or transsexual people has been in the news and some universities have taken steps to offer gender neutral washrooms after complaints. Reasonable accommodations need to be made and Scarth points out that often making subtle changes in the workplace is neither expensive nor time consuming.

All it takes is a more inclusive and sensitive attitude. One area of concern is a hospital’s practice of always assigning patients having a particular surgery to a given ward. This results in patients of a particular sex being grouped together, regardless of whether that is consistent with a patient’s own perceived gender identity.

Another example might be when a university allows a student who is transsexual to have their preferred name listed in its online directory. Also covered  is a patient who is transgendered  and has a legal first name (John perhaps) not usually associated with their gender identity (maybe Mary).

A reasonable accommodation would  be if a medical clinic changes its practice of calling out patients’ first and second names as they appear on Manitoba Health Registration cards, instead  using the preferred chosen name of the patient.  

The provision of medical services to children who are intersex or transgender is also covered. This means medical providers cannot legally require that a child undergo medical or psychological treatment that discriminates against that child based on gender identity, without reasonable cause.

Likewise, children and youth in schools and educational institutions have a right to access these services without discrimination or harassment on the basis of gender identity.

This means a teacher should call a student who is transgender by that student’s preferred first name and refer to that student by the pronoun that corresponds to his or her self-identified gender. Other practical educational issues the commission addresses include: providing private, non-gendered washroom and changing room options for students; dividing students into groups for activities in ways other than into groupings of boys and girls; ensuring that harassment prevention policies and procedures specifically prohibit harassment based on gender identity.

 Where sport teams or leagues are divided on the basis of sex, refusing to allow a participant who is transgender to play on a sports team according to their self-identified gender, without reasonable cause, is also contrary to The Code.

Some traditional people may not like this widening of what is covered by anti-discrimination guidelines but the  commission’s rules are quite clear and blunt:
“If a person who is transgender or transsexual asks to be called by a name that differs from their legal name, The Code’s requirement for reasonable accommodation of special needs based on sex, including gender identity, means that service providers must reasonably accommodate such requests, to the point of undue hardship,” it states.

In short people—employers, landlords, service providers—need to be more inclusive and more sensitive to reasonable accommodation of needs based on gender identity not just biological sex or sexual orientation. A person’s perceived identity has to be respected.

Some examples of harassment based on gender identity are: derogatory name-calling, inappropriate physical contact, or the ongoing use of inappropriate forms of address. That includes the use of pronouns by coworkers when speaking to an employee who is transgender.

Scarth says the majority of human rights complaints involve discrimination based on mental or physical handicaps, but there is a small but steady component of complaints based on sex, sexual orientation and gender identity.
She adds that young Manitobans are enthusiastic and knowledgeable about international human rights.

“They know for instance about child exploitation in foreign factories and many other issues,” she says. “One of our aims is to show how local and national human rights tie in with the international scene and the U.N. Declaration on Human Rights.”

To that end they have recently held youth conferences in Winnipeg, Brandon and the Pas.
 
For more information on human rights:
www.gov.mb.ca/hrc or phone (204) 945-3007
 
– Peter Carlye-Gordge is a Winnipeg-based freelance writer, former producer for CBC and former Maclean’s writer. To comment on this or any other article in Outwords, write to editor@outwords.ca