XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

XY

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Government and Consumer Services

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: September 20, 2010

Citation: 2010 HRTO 1906

Indexed as: XY v. Ontario (Government and Consumer Services)

1The applicant in this case, a male-to-female transgendered person, has filed a Request for an Order 1) permitting her to continue to use and be referred to by the pseudonym “XY” throughout the course of the Tribunal proceedings in all respects; and 2) prohibiting the publication of information which would tend to identify the applicant, including her name, addresses, past and present, and details of her occupational and educational history (i.e., a partial publication ban).

2In support of the Request, the applicant submits that if her identity as a male-to-female transgendered person were publicly revealed by virtue of her participation in these proceedings, her personal safety and well-being would be jeopardized. First, the applicant submits that publicly identifying her as a transgendered person would be detrimental to the successful maintanence of her gender identity. (The applicant is living in her felt gender of female.) This, the applicant submits, would have a negative impact on her well-being. Moreover, the applicant submits that being publicly revealed as a transgendered person in the course of these proceedings could expose her to prejudicial behavior in her workplace and otherwise. She is apprehensive about possible physical and/or verbal attacks and harassment against her, her friends and family if she were to be publicly identified as a male-to-female transgendered person.

3The applicant relies upon the Tribunal’s decisions in Hogan v. Ontario (Health and Long-Term Care), 2003 HRTO 6; and August v. Richland Technical Services, 2003 HRTO 25 in support of her Request.

4The respondent does not oppose the applicant’s request. Nor does it contest the submissions and facts put forward by the applicant in support of the request. However, it reserves its right to contest such facts and submissions should they become relevant to any matter at issue at a future stage of the proceeding.

ANALYSIS AND DECISION

5The authority to impose a publication ban exists both at common law and pursuant to the Tribunal’s Rules. Specifically, Rule 3.11 of the Tribunal’s Rules of Procedure provides that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal has also invoked Rule 3.11 as the basis upon which to anonymize parties in proceedings before it.

6Along similar but not precisely the same lines, s. 9 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“SPPA”), which applies to proceedings before the Tribunal, contemplates that the fundamental principle of open hearings must be balanced against other interests, including the individual right to privacy, and provides for circumstances where hearings may be held in the absence of the public.

7In my view, given the obvious privacy interests at stake, this is an appropriate case in which to make an order pursuant to Rule 3.11 to protect the confidentiality of acutely personal and sensitive information relating to the applicant’s identity as a transgendered person by anonymizing the applicant and continuing to refer to her by the pseudonym “XY” in the Tribunal’s decision(s) in this matter. In an earlier decision in this case, 2009 HRTO 367, the Tribunal ordered that the applicant be identified as “XY” on an interim basis and at a very early stage in this proceeding.

8Anonymization orders do represent an encroachment on the principle of open justice and are therefore not to be granted lightly: C.M. v. York Region District School Board, 2009 HRTO 735 at para. 25. However, insofar as such an order does not prevent others from attending the hearing or restrict what they may publish, it is less onerous for an applicant to justify anonymization than to establish that a publication ban ought to be granted: C.M., supra. The identification of the applicant by the initials “XY” in the Tribunal’s decisions is justified in the circumstances of this case, based on the potential stigma the applicant would likely face if publicly identified as a transgendered person and the fact that such identification would compromise the applicant’s ability to live in her felt gender.

9On the other hand, granting a publication ban which curtails fundamental freedoms, such as freedom of expression and freedom of the press, is an extraordinary remedy. It is well-established that the onus is on the applicant to establish that such a ban is necessary. In Hogan, supra, at para. 7, the Tribunal held that to meet her onus, an applicant is required to establish that the proposed publication ban “relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that [it] is as limited as possible and there is proportionality between the salutary and deleterious effects of the ban (citing Dagenais v Canadian Broadcasting Corp. 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 (“Dagenais”)).

10As noted above, I take notice of the fact that male-to-female transgendered persons face social stigma and prejudice in our society. Moreover, one of the purposes of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (“the Code”) is to eradicate the discrimination and harassment such members of our society may experience, precisely because of such stigma and prejudice. I am also mindful of the fact that accessibility is one of the Tribunal’s core values. If the Tribunal were not to grant an order which would protect the identity of the applicant in these proceedings, the human rights system might be less accessible, or even inaccessible, to the applicant. Apprehension about being publicly identified as a transgendered person could restrict the applicant’s willingness to pursue her rights under the Code not to be discriminated against precisely on that basis. Such an outcome would be inconsistent with the very purposes of the Code.

11Moreover, and without suggesting that the applicant would not be faithful to her oath or affirmation, apprehension about being identified as a transgendered person could nonetheless curtail the applicant’s willingness to volunteer acutely personal details relating to her individual identity when she testifies at the hearing. She has indicated that she intends to reveal sensitive information relating to her personal and medical history at the hearing of this matter. Thus, failure to grant the applicant’s order might affect the applicant’s evidence and thereby poses a real and substantial risk to the fairness of the hearing before the Tribunal.

12For these reasons, I am persuaded that the applicant’s request relates to important objectives – accessibility of the human rights system to a class of persons whom the system was designed to protect and the fairness of the hearing. Mindful of the criteria in Dagenais, supra, it appears to me that a publication ban which restricts only the public identification of the applicant and does not otherwise compromise the openness of the hearing or the media’s ability to report on the case strikes an appropriate balance between the applicant’s obvious privacy and dignity interests and the public’s right to know about the case. Other than granting the applicant’s request, I cannot at this stage see a “reasonably available and effective alternative measure” which would achieve the important objectives which have been identified. It seems to me that the proposed partial publication ban is as limited as possible, while still achieving the desired objectives; and there is proportionality between the salutary and deleterious effects of the ban.

13In all of the circumstances, including the fact that the respondent opposes neither the request nor the facts and submissions upon which it is based, I grant the applicant’s request to use and be referred to by the pseudonym “XY” in these proceedings and for a limited publication ban which restricts publication of the applicant’s name, past or present addresses, or other details which would tend to identify her, subject to the following.

14I am somewhat concerned that granting the applicant’s request limits freedom of expression, including freedom of the press, and it is not clear that the media has had notice of the applicant’s request. In the event that anyone from the media seeks to have the publication ban lifted, the Tribunal may revisit the issue and issue further directions as required.

15Finally, I note that, by necessity, the Order granting the applicant’s request is subject to the Tribunal’s obligation to address the evidence heard, if and as required, in order to provide the reasons for its decision(s) in this matter.