Faculty of Law/UTOIL Panel on Gender Identity and the Law, 2002

By JOANNE PICKEL

For the second year in a row, the Faculty of Law and UTOIL (U of T OUT in Law) co-sponsored a panel addressing lesbian, gay, bisexual, and/or transgendered issues. Titled “Gender Identity and the Law: Canadian and European Perspectives”, this year's panel addressed the law's treatment of issues relating to gender identity especially as related to the rights of transexual and transgendered persons.

Prof. Robert Wintemute The panel was composed of Prof. Robert Wintemute and Ms Cynthia Petersen. Prof. Wintemute is a professor at King’s College in London and a Distinguished Visiting Lecturer in the Faculty of Law for 2002. He has published widely on the issue of sexual orientation and human rights issues as well as on the legal recognition of same-sex relationships.

Cynthia Petersen is a partner with the Toronto law firm of Sack Goldblatt Mitchell. She has acted as counsel in a number of equality rights test cases and has represented transgendered clients in a variety of human rights and equality rights cases before courts and administrative tribunals.

During the panel, Prof. Wintemute canvassed the European and British case law regarding gender identity issues, addressing such topics as the legal recognition of gender reassignment, a transsexual person’s right to marry persons of their birth sex, funding for gender reassignment surgery, protections against employment discrimination, as well as the rights of transgendered persons who are not interested in gender reassignment surgery. Petersen addressed the Canadian legal treatment many of these same issues, focusing in particular on cases that have arisen in her practice.

Both presenters noted that, although legal institutions are increasingly being called upon to address issues of concern to lesbians, gays, and bisexuals, the case law on issues of particular concern to transexual and transgendered persons is still comparatively slim.

Petersen noted some of the unique aspects of cases involving discrimination on the basis of gender identity. She observed that, whereas the main difficulty in most discrimination cases is marshalling evidence to prove the discrimination, this is often not an issue in gender identity cases as defendants often readily admit the discrimination.

Instead, the two main issues in gender identity cases tend to be, first, establishing that the discrimination falls under a protected ground (usually the ground of “sex” or the separate ground of “gender identity”) and, second, proving that the discrimination was not justifiable (that is, that the defendant did not have a bona fide justification for discriminating against the plaintiff.)

Both presenters suggested that the legal treatment of gender identity issues is still in its earliest stages. They suggested that courts and administrative decision-makers are still very much grappling with how best to address issues arising in gender identity cases: what the appropriate scope of rights should be, what discrimination on the basis of gender identity might encompass, and what defences might be available to defendants. It can be hoped that academic attention to gender identity issues through initiatives such as the February 5th panel will lead to more thoughtful and enlightened legal analyses around these issues in the near future.