Gender Expression – Interpreted

In 2012, the Ontario Human Rights Code (“Code”) was amended to include ‘gender identity’ and ‘gender expression’ as protected grounds. This was a big step forward for the protection of Trans persons’ rights in Ontario.  However, there have been very few decisions from the Human Rights Tribunal of Ontario interpreting and applying these new protections since then.

In the Salsman decision, the three transgendered women applicants were staffing the fourth applicant’s booth at the Trails End market, owned by London Sales Arena Corp. and managed by Victor Desa.   Mr. Desa told the booth owner that she needed to remove the applicants or her booth from the market.  He made comments such as “those people”, “it’s just not right”, and “it’s not normal”, as well as referring to “cross dressing” and being “guys dressed up as girls.”  Mr. Kikkert, the owner of the market and Mr. Desa’s employer, also made comments on a radio program that it was a “family market” and referred to the applicants as “these people.”  While Mr. Desa argued that the problem was that the applicants lit incense and wore revealing clothing, the Tribunal preferred the evidence of the applicants and found that they had been discriminated against because of their gender expression.

Although this decision is positive because it provides guidance on the new provisions of Code, the general damages awards in this decision are fairly low. The applicants were awarded individually between $5,000-$20,000. The $20,000 award was for the non-transgendered applicant.

The case was brought under the area of goods, services and facilities because the applicants did not work for London Sales Area Corp. In the employment context, the general damage awards currently are averaging between $10,000-$15,000 and the highest award from the Tribunal in that area is $45,000. For one of the applicants, Ms. Freeman this incident had a serious impact.  She slowed her transition after the incident and nearly ceased working due to depression arising from the discrimination. The Ontario Divisional Court has stated that general damages awards at the Tribunal must not be too low because that would “trivialize the social importance of the Code”. Higher awards in this case would have had a greater impact in demonstrating that businesses cannot discriminate against transgendered persons in Ontario.

For more information about human rights, see here.

If you have experienced discrimination at work because of gender expression or are concerned that your human rights are being violated, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).