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OPP's decision not to release gender "repressive and regressive," human rights lawyer says

A decision by Ontario's provincial police service to withhold the gender of anyone who is accused of a crime or is a victim of a crime is based on a faulty interpretation of the law and silences the people it's trying to protect, an Ottawa-based human rights lawyer says.

Ontario's provincial police service says revealing gender would contravene legislation

OPP will no longer release or confirm the gender of victims of crime or people accused of crimes. (CBC)

A decision by Ontario's provincial police service to withhold the gender of anyone who is accused of a crime or is a victim of a crime is based on a faulty interpretation of the law and silences the people it's trying to protect, an Ottawa-based human rights lawyer says.

The OPP said earlier this week it has reviewed its policy and will continue releasing identifying information such as names, ages, hometowns and ethnicity, but not gender, because of concerns about the Police Services Act, the Freedom of Information and Protection of Privacy Act and Ontario Human Rights Code. 

"I'm a bit alarmed and concerned because the policy is based on a poor interpretation of the law, quite frankly. The law gives you what you may disclose, what is permissible to disclose, it's not restrictive," said Elie Labaky, a human rights lawyer who specializes in policing cases. 

"Gender is not part of the list of information they may release, but they're releasing all kinds of other information that is not enumerated, either. I suspect this is not about gender. It's about controlling for liability." 

An OPP spokesperson told CBC News the change came after a regular review of laws that govern police officers and the service's standard operating procedures. 

Usually, the gender of a person is apparent from the name. However, where the gender is not easily discernible, OPP used to clarify in media releases. They no longer do so. 

The issue could be easily solved by teaching front-line officers how to respect people of all genders and to ask people which gender they identify with, Labaky said. 

"This approach is regressive and repressive," he said. "If you actually want to be progressive and implement the human rights code, you acknowledge there are non-binary people and there are trans people, you acknowledge their identities, you have conversations with them, you ascertain whether they want to be referred to as a male or female and in the odd event that you're not sure, don't disclose it. But to have a blanket policy? It's hyper-vigilance."

'Self-protective policy'

The OPP appears to be the only police service in Canada to refuse to disclose gender, though some, such as the Edmonton Police Service, have stopped disclosing the names of suspects and murder victims. Edmonton still releases gender and age. 

There are other countries in which people accused of crimes are not identified, such as in the Netherlands, but that's a journalistic policy, not a police one, said Romayne Smith Fullerton, an associate professor in the faculty of information and media studies at Western University in London, Ont. 

Much of her research focuses on what identifying information journalists reveal in different jurisdictions. 

"This OPP policy sounds like a self-protective policy rather than one that is about privacy rights," Smith Fullerton said. 

"These are matters of public record and the public has a right to know. It's the job of the media to keep an eye on all institutions, including the police. It makes it difficult to act as an oversight body if you don't have basic information. In Canada, transparency wins the day over the rights of an individual to privacy." 

More training needed

Police are right to be careful about mis-gendering deceased people, said Stafanie Pest, a transgender woman from Windsor, Ont. 

What gender should an officer report if someone's driver's license lists them as male but who is presenting as a woman, for example? 

"Unless you ask the person, you won't know their gender and many mistakes can occur," Pest said. 

The OPP's focus on gender is a sign that society is still tied to rigid rules about gender binaries, she said. 

"I feel it's best to use non-gendered language whenever possible to be inclusive to non-binary communities."