|
Transgender - Mis-Gendering. Thorne v. Good Health Walk-In Clinic
In Thorne v. Good Health Walk-In Clinic (Ont Div Ct, 2026) the Ontario Divisional Court allowed an HRC JR, this brought against an HRTO decision where "the Tribunal dismissed Mr. Thorne’s claim that he was discriminated against by Good Health Walk-in-Clinic".
Here the court considered human rights law relating to preferred gender pronouns (ie. him/her, she/he) (aka 'misgendering'):The Relevant Jurisprudence
[17] Tribunal jurisprudence has accepted that a failure to use a person’s preferred pronouns or preferred name (as opposed to the person’s name prior to transitioning) in the face of express requests, if that misuse is related to a person’s trans status, constitutes mis-gendering and adverse treatment: EN v. Gallagher’s Bar and Lounge, 2021 HRTO 240, at para. 31; S.R. v. DLPH Hambleton Group Inc. (aka Burger King Franchise 3566), 2024 HRTO 1491.
[18] In Dawson v. Vancouver Police Board (No.2), 2015 BCHRT 54, 80 C.H.R.R. 386, at paras. 216, 218, 223, the British Columbia Human Rights Tribunal found that a police officer’s reference to a trans female as male in a report of an occurrence amounted to discrimination.
[19] In Nelson v. Goodberry Restaurant Group Ltd. Dba Buono Osteria and others, 2021 BCHRT 137, the British Columbia Human Rights Tribunal articulated the obligation as follows:[80] All employees have the right to a workplace free of discrimination. Trans employees are entitled to recognition of, and respect for their gender identity and expression. This begins with using their names and pronouns correctly. This is not an “accommodation”, it is a basic obligation that every person holds towards people in their employment: BC Human Rights Tribunal v. Schrenk, 2017 SCC 62.
....
[82] Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity. As Jessie Nelson explained in this hearing, their pronouns are “fundamental to me feeling like I exist.” When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.
[83] I appreciate, as the respondents point out, that for many people the concept of gender-neutral pronouns is a new one. They are working to undo the “habits of a lifetime” and, despite best intentions, will make mistakes. Unfortunately, this learning is done at the expense of trans and non-binary people, who continue to endure the harm of being misgendered.
[84] Human rights law is concerned not with intentions, but with impacts: Code, s. 2; Schrenk at para. 88 (per Abella J. concurring). This does not mean, however, that intention is irrelevant. A person’s intention can go a long way towards mitigating or exacerbating the harm caused by misgendering. Where a person is genuinely trying their best, and acknowledges and corrects their mistakes, the harm will be reduced. [20] A number of Supreme Court of Canada cases have made it clear that discriminatory intent is not required to establish a case of prima facie discrimination: Stewart v. Elk Valley Coal, 2017 SCC 30, [2017] 1 S.C.R. 591, at para. 24; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 40; British Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795, at para. 88.
....
[26] The issue the Tribunal was required to address, that it did not address, was not whether the receptionist or the doctor intended to discriminate against Mr. Thorne when they misgendered him, but whether the misgendering was related to his trans status, what impact their behaviour had on him and whether that impact was adverse. The Tribunal’s decision contains no analysis on this issue. This is a fundamental gap.
[27] For these reasons, the decisions of the Tribunal on the misgendering issue must be set aside and the matter referred back to a different member of the Tribunal for a new hearing on the issue in accordance with these reasons.
|
