The Ontario Human Rights Tribunal recently addressed issues relating to gender expression and gender inclusivity in the case of Andrews v. Great Gulf.
In that case, a condominium resident brought a human rights application against the condominium’s builder, for failure to provide gender-inclusive washrooms and steam rooms. The Human Rights Tribunal rejected the application against the builder, essentially because the Building Code did not yet require gender inclusive facilities as part of the original construction (though this is under consideration). But the Tribunal made it clear that the condominium corporation might nevertheless have an obligation to provide for gender inclusivity despite the original construction. The Tribunal said:
While the building construction may be complete, there could be many possible ways to accommodate the needs of residents who do not identify with binary genders, for example through alternating use of spaces, or designating certain spaces as gender-inclusive. At this point, it is the condominium corporation who would be responsible for such issues and in order for the applicant to trigger these obligations, they must first raise the issue and make a request to the condominium corporation.
Needless to say, each situation would have to be considered on its own facts, taking into account the needs of the residents in question, the original construction, the practical possibilities to make adjustments, and of course any relevant considerations of undue hardship (for the condominium corporation and its owners and residents).
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