L’interdiction de discriminer les personnes trans* dans la Charte des droits et libertés de la personne : pour son amélioration par l’ajout de l’« identité de genre » et de l’« expression de genre » à la liste des motifs de distinction illicites

• Main Author: Jean-Sébastien Sauvé
• Format: Article
• Language: English
• Published: Centre Urbanisation Culture Société (UCS) de l'INRS 2015-11-01
• Series: Enfances, Familles, Générations
• Subjects: discrimination; civil state; gender expression; gender identity; sex; transgender
• Online Access: http://journals.openedition.org/efg/356

The Québec Charter of Human Rights and Freedoms prohibits, to a certain extent, discrimination against trans* people. However, the Charter does a poor job of covering different facets of gender identity and expression, and of certain resulting situations such as transgender parenting. In response to this shortcoming, and using a positivist approach, this article suggests adding “gender identity” and “gender expression” to the list of defined discriminations that are prohibited under section 10 of the Charter. This would give trans* people better legal “protection”—assuming such protection truly exists. It would also clarify the legal situation. To support this assertion, the author examines the prohibition of discrimination against trans* people, revealing that the concepts of “sex” and “civil status” are central to the issue. However, because of how they are interpreted, these concepts cannot fully and explicitly encompass the situation of people who do not adhere to gender stereotypes. In this regard, the Québec legal system is therefore incapable of completely and explicitly prohibiting discrimination against trans* people. Given this shortcoming, the article subsequently suggests adding “gender identity” and “gender expression” to the list of defined discriminations. Such an amendment to the Charter, which is being applied increasingly elsewhere in Canada, would compensate for the problem described above. While its tangible effects would be difficult to measure given that having true “protection” against discrimination is somewhat of a myth, the author nevertheless submits that such an amendment would be an appropriate step.