Unlike several US states, in Ontario, individuals may use the washroom of their gender identity, not biology. Despite this protection, transgendered Ontarians continue to experience horrific treatment from some establishments.

A recent decision of the Ontario Human Rights Tribunal (“the Tribunal”), illustrates the ongoing battle Trans persons face.

The Case

In the Tribunal heard the story of an applicant, Cesar Lewis, who was physically and verbally assaulted by security at Sugar Daddys Nightclub.

In January 2014, Lewis visited the nightclub with several friends.  At the time, Lewis identified as ‘transgender neutral questioning transgender male’ likely meaning that Lewis was born female and was considering transitioning to male but had not entirely commenced or completed that transition.

At one point in the evening, Lewis entered the men’s washroom, as was the right in Ontario.  While in the washroom cubicle, Lewis was accosted by the nightclub’s security. The security guard then proceeded to pull Lewis out of the washroom resulting in urine soaking his pants. After an argument, and upon learning that Lewis’ identification used a female name, the security guard forcibly dragged Lewis from the nightclub using slurs such as “you freaks need to get your fucking faggot asses out of this club” and I told “you faggot dykes to leave.” Outside the club, the security guard slapped Lewis in the face, pushed him to the ground and kicked his back and head at least 10 times. Lewis eventually got free and sought medical and police assistance.

At the Tribunal, the Vice-Chair hearing this evidence acknowledged the principle that human rights damages ought not to be so low as to trivialize human rights and create a license to discriminate.  The Vice-Chair further noted that the objective seriousness of the conduct is relevant to the award.  Despite this, the Vice-Chair then ordered $15,000 to compensate Lewis for the treatment experienced at the hands of Sugar Daddys Nightclub staff.

Lessons

In 2012, gender identity and expression were added to the Ontario Human Rights Code as protected grounds.  This was a positive step for Trans rights in Ontario.  However, this legislative right alone, cannot result in actual change in society. Rights must be accompanied by real consequences of a breach by an individual or business.

The Lewis decision demonstrates the ongoing need for the Tribunal to re-evaluate its remedies.  As I have said before, low damage awards for serious breaches of the Code, can do more harm than good. Serious physical assault accompanied by prejudicial slurs must be compensated with more than $15,000 if human rights in Ontario are to have any meaning.

If you have experienced a violation of your human rights a lawyer at MacLeod Law Firm can assist you. Please contact us at [email protected] or 647-204-8107.