Department of Justice (Canada)

• Recent education policy changes and protests about sex education reveal increasing concern and polarization over how sex and gender identity are taught in public schools in Canada.
• They also expose the significant role now played by school boards in constructing the meaning of gender identity and gender expression.
• Changes in how words and terms are used can impact our ability to know about people’s lives and protect their rights.
• Significant shifts are taking place around how we define and understand sex and gender in education and public policy in Canada.

Sex, gender and law

• Yet sex, gender identity and gender expression are not defined in human rights legislation in Canada.
• They should be able to express their concerns and participate in open discussions about the meaning of words we share.

Changes in the definition of sex

• The Charter of the United Nations prohibits sex discrimination.
• The United Nations Universal Declaration of Human Rights precludes discrimination based on sex.

Changes since 2018

Since 2018, the word sex is increasingly defined by the federal government as something that is “assigned at birth.” But there is no consistency across federal departments and agencies. Some continue to define sex as a biological question of male or female. Those that define sex as assigned at birth do not consistently explain how sex is assigned or by whom.

Conceptual shifts around word ‘woman’

• Similar conceptual shifts are taking place around the word woman.
• The word woman was formerly linked to sex and used to refer to female people.
• Now, government departments including the Department of Justice increasingly use the word woman to refer to all people who identify as women.

Defining gender identity

• When gender identity was added to federal human rights legislation, the Department of Justice defined gender identity as:
  “each person’s internal and individual experience of gender.
• A person’s gender identity may or may not align with the gender typically associated with their sex.”
  “A person’s internal and deeply felt sense of being a man or woman, both or neither.
• A person’s gender identity may or may not align with the gender typically associated with their sex.”

School boards define terms differently

• Researchers have identified that secular boards across Ontario define gender identity and gender expression differently from one another.
• Some school boards now define gender identity as something everyone has.

Data collection shifts away from sex towards gender

• A shift away from sex and towards gender (identity) has occurred in data collection practices at the federal government level.
• In 2018, the Treasury Board of Canada Secretariat and the Department of Justice Canada recommended “ways to modernize how the Government of Canada handles information on sex and gender.” They recommended that “departments and agencies should collect or display gender information by default, unless sex information is specifically needed.” They used “sex” to refer to biological characteristics, and “gender” to refer to a social and personal identity.

Open discussions are overdue

As Canadian society shifts to accommodate the legal recognition of gender diversity, there will be tensions. Ultimately, courts will be tasked with deciding how some of those tensions are resolved, when sex, gender identity and gender expression are all protected in human rights laws. In the meantime, as a society, we need to openly and transparently grapple with some increasingly important questions:
First, how will foundational concepts such as sex, gender identity and gender expression be defined and given effect in education, law, public policy and beyond?
Second, how will tensions between experiences, interests and rights associated with sex and those associated with gender identity and/or gender expression be resolved?
Third, who is best placed to decide how these questions are answered in education, law, public policy and beyond?
Everyone who may be impacted by the answers to these questions should be included in the conversation.
Debra M Haak receives funding from the Social Sciences and Humanities Research Council, the Canadian Bar Association Law for the Future Fund, and the Queen's University Faculty Association Fund for Scholarly Research.