The Aftermath of Human Rights Protections: Gender Identity, Gender Expression, and the Socio-Legal Regulation of School Boards

Abstract

AbstractBetween 2002 and 2017, Canadian lawmakers sought to redress the pervasive levels of discrimination, harassment, and violence experienced by transgender and/or non-binary people by adding the terms “gender identity” and/or “gender expression” to federal, provincial, and territorial human rights instruments. This paper tracks the complex, iterative ways in which antidiscrimination protections are brought to life outside courts and tribunals. Using Ontario’s publicly-funded English language secular school boards as a case study, we examine how the introduction of explicit human rights protections on the basis of “gender identity” and “gender expression” in 2012 worked to produce a series of responses across the education sector. Given that “gender identity” and “gender expression” remain legally undefined terms in the OntarioHuman Rights Code, and only provisionally defined by Ontario Human Rights Commission (OHRC) policy, we argue that school boards constitute important actors engaged in constructing the meanings of these terms in policy and practice. In decentering courts and tribunals in our analysis, we aim to uncover the everyday practices of parallel norm-making taking place in the education context. These everyday practices shape how we collectively understand the meaning of “gender identity” and “gender expression.” By carefully tracking these post-legislative developments, which rarely make their way into reported decisions, we suggest that human rights law reforms might open up space for the emergence of norms that allow people to do gender in a variety of ways.