Area of Law: Education & School Law
Answer # 1418
Gender Expression and LGBTQQIP2SAA in schoolsRegion: Ontario Answer # 1418
The Ontario Human Rights Code grants the right to equal treatment without discrimination based on sex, sexual orientation, gender identity and gender expression. The Code protects people from gender-based discrimination or harassment arising specifically in situations of housing, accessing services (hospitals, schools, shops, restaurants and recreation facilities), contracts, union memberships, professional associations and employment.
The provincial Accepting Schools Act addresses the responsibilities of various individuals, such as parents and guardians, teachers, principals and school boards in bullying, discrimination, and harassment prevention in schools, including gender-based.
What is Gender Expression?
Gender expression is someone’s public representation of their gender. This includes his or her outward appearance (e.g. clothing, makeup, body language or voice), or their general behaviour. Preferred names and pronouns are a form of gender expression.
Gender expression is not to be confused with gender identity. Gender identity is someone’s individual or internal experience of gender as a man, woman, neither, both, or anywhere along the spectrum of gender. Gender identity is not the same as one’s sexual orientation and can be the same as or different from one’s birth-assigned sex.
Other distinctions include the following:
- Gender non-conforming individuals do not observe behaviours or traits typically associated with their birth-assigned sex. This means that they do not follow most people’s ideas or gender stereotypes about how they should act or look based on being born a male or a female. Gender non-conforming individuals may also identity as trans.
- Trans or transgender individuals hold a gender identity or expression that is different from their birth-assigned sex. It can also refer to gender diverse individuals that differ from gender conformity and stereotypes. This includes those who identity as transgender, transsexual, trans men (female-to-male), trans women (male-to-female), cross-dressers, gender non-conforming, and gender queer or gender variant.
What is gender-based discrimination and harassment?
Under the Ontario Human Rights Code, discrimination and harassment because of gender identity or gender expression is against the law.
Gender-based discrimination occurs when a person is treated negatively because of their gender identity or gender expression. Discrimination can be direct or indirect and intentional or unintentional, but it is all harmful and unwanted behaviour. Gender-based discrimination also includes discriminating against individuals associated with a trans person or communities, such as their family or friends.
Gender-based harassment is a type of discrimination involving unwelcome and repeated unwanted behaviour that causes harm. This can include inappropriate comments, jokes, transphobic or homophobic bullying, touching or sexual advances etc. This harassment can threaten a trans person’s safety, and physically or emotionally harm a trans person.
What is LGBTQ+ and LGBTQQIP2SAA?
LGBTQ+ is a term used to represent sexual orientations and gender identities and refers to anyone who is non-heterosexual or non-cisgender. Cisgender means a person’s gender identity matches the sex that they were assigned at birth. Variations of the term LGBTQ+ exist to foster acceptance and inclusion of different members of the community. While the arrangement of the letters may change, a common variant is LGBTQQIP2SAA, which stands for:
- Two-Spirit (2S)
Gender-based discrimination and harassment in schools – Accepting Schools Act
Schools have a legal duty to act to prevent and respond to discrimination and harassment, and they must offer environments that respect human rights. In 2012, the Ontario government passed Bill 13 – the Accepting Schools Act. The Act outlines the various responsibilities of teachers, school boards, principals, ministries, parents, guardians and other involved individuals regarding bullying, discrimination and harassment prevention in schools. The Act promotes respectful behaviour amongst all students irrespective of gender, sexual orientation, race, disability or any other factor.
Under the Accepting Schools Act:
“The people of Ontario and the Legislative Assembly:
- Believe that all students should feel safe at school and deserve a positive school climate that is inclusive and accepting, regardless of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability;
- Believe that students need to be equipped with the knowledge, skills, attitude and values to engage the world and others critically, which means developing a critical consciousness that allows them to take action on making their schools and communities more equitable and inclusive for all people, including LGBTTIQ (lesbian, gay, bisexual, transgender, transsexual, two-spirited, intersex, queer and questioning) people;
- Recognize that a whole-school approach is required, and that everyone — government, educators, school staff, parents, students and the wider community — has a role to play in creating a positive school climate and preventing inappropriate behaviour, such as bullying, sexual assault, gender-based violence and incidents based on homophobia, transphobia or biphobia.”
Accommodation of transgender students and staff by school boards
Most school boards have developed accommodation guidelines for transgender and gender non-conforming students and staff to build respectful and inclusive school communities. These guidelines assist in addressing accommodations based on gender identity and expression to raise awareness and protect against discrimination. The guidelines follow an individualized approach where schools must consider each student’s needs independently and appropriately respond to accommodation requests on an individual basis.
Some possible accommodations made by schools include:
Names and pronouns – trans students and staff have the right to be addressed by name and pronoun in accordance with their gender identity.
Curriculum integration – School boards should challenge gender stereotypes and integrate trans-positive information into the curriculum.
Washroom access and change rooms – Students and staff members should have an accessible all-gender single stall washroom for increased privacy, regardless of the reason for their use.
Sports activities and gym classes – Students must be able to exercise their right to participate in gender separated sports and physical education class in accordance with their gender identity.
Ontario Sex Education Curriculum
In 2019, the Ontario government released their new Health and Physical Education curriculum. This new curriculum promotes age-appropriate sexual health education, and awareness of bullying, mental health, gender identity and same-sex relationships. Specifically, in grade 8, Ontario students will learn about gender identity, gender expression, sexual orientation, and factors to help develop positive personal identities. For more information about Ontario’s sex education curriculum, refer to the Ministry of Education.
More information about how bullying must be addressed in schools can be found in topic 1409 Bullying in schools. Refer to the Ontario Human Rights Commission for more information on gender expression and gender identity, or view the Accepting Schools Act.
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