Between 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 Ontario Human 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.

Anglo-American lawmakers are in the midst of introducing a series of anti-discrimination protections for trans people. By and large, they are making this change by adding the terms ‘gender identity’ and ‘gender expression’ to a variety of human rights law instruments. In June 2017, for example, the Parliament of Canada passed Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code. The legislation adds the terms ‘gender identity or expression’ to the Canadian Human Rights Act, along with the hate crimes provisions of the Criminal Code. Similar pieces of legislation have been introduced in the United States and the United Kingdom. While legal scholarship has spent considerable time debating the merits of such legislation, comparatively less attention has been paid to the plural, and often contradictory, history of ‘gender identity’ and ‘gender expression.’ This article traces the origins of these terms, arguing that ‘gender identity’ is the product of mid-century psychiatric discourses that constructed trans people as a narrow class of persons. ‘Gender expression’ is a comparatively newer concept, emerging in the 1990s in concert with performative theories of gender that sought to demonstrate how disciplinary norms are imposed on all members of society. The contemporary reliance on these terms reflects what Eve Kosofsky Sedgwick has called the tension between ‘minoritizing’ and ‘universalizing’ accounts of gender and sexuality. The article is organized in four parts. Part I traces the origins of the term ‘gender identity,’ along with how it migrated from clinical contexts to legal forums. In 1994, the City of San Francisco became the first Anglo-American jurisdiction to entrench the term in a human rights instrument. Part II tracks the comparatively shorter history of the term ‘gender expression.’ The Part then traces the term’s reception into human rights discourse, with New York City becoming the first Anglo-American jurisdiction to use the term ‘gender expression’ in 2000. Part III examines how two terms emerging out of different historical moments and with different sets of normative preoccupations have recently fused together to capture how individuals internally identify their gender and externally perform it. The article concludes by anticipating future implications for the corpus of trans human rights law, which will inevitably continue to grapple with the tension between minoritizing and universalizing approaches.

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In this article, we share findings from an analysis of Ontario Catholic school board policy documents (N = 179) containing Canada’s newest human rights grounds: gender expression and gender identity. Our major finding may be unsurprising—that Ontario Catholic boards are generally not responding to Toby’s Act (passed in 2012) at the level of policy, as few boards have added these grounds in a way that enacts the spirit of that legislation. While this finding is likely unsurprising, our study also yielded findings that unsettle any facile binary of “Catholic boards/bad” and “public secular boards/good” in relation to gender diversity. We also leverage our findings to suggest a striking possibility for a vigorous and doctrinally-compatible embrace of gender expression protections in Catholic schools, if not gender identity protections. We argue that fear of gender expression protections may stem from an erroneous conflation of “gender expression” with “gender identity” when these are in fact separate grounds—a conflation that is also endemic within secular Ontario school board policy; this doubles as a conflation of gender expression with “transgender,” as the latter is unfailingly linked with gender identity human rights. We make a series of recommendations for policy, and a case for Catholic schools embracing their legal duty to provide a learning environment free from gender expression discrimination without doctrinal conflict and arguably with ample doctrinal support, so that students of all gender expressions can flourish regardless of whether they are or will come to know they are transgender.