A Legal View to the Availability of Information about the Health of LGBTQ2IA Communities in Ontario

A Legal View to the Availability of Information about the Health of LGBTQ2IA Communities in Ontario

Aaron Dishy is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

Identification with LGBTQ2IA+ communities is a noted social determinant for broad health inequities. These inequities can include limited access to health care services and a corresponding lack of access to relevant health information. The Government of Ontario recognizes the collection and use of data from minority populations as a critical step in improving social, economic, political, and financial inequities. But this recognition raises questions about the scope and standards to be applied to the province’s legal obligation to collect data about the health of LGBTQ2IA+ communities.

There are many reasons for the lack of LGBTQ2IA+ health information in Ontario. Community size, problematic surveys, concealment, and stigma all prevent the accurate representation of LGBTQ2IA+ communities and their needs. Sexual orientation and gender identity are also complex topics that are challenging to account for in survey and census style information collection. For example, other dimensions of sexual orientation, such as sexual behaviour and sexual attraction, are often unaddressed in the literature. Surveys also rarely allow for intersectional analyses by collecting data about the health of Indigenous or racialized gender and sexual minorities. Canadian scholars continuously advocate for improved population-based surveys to include direct questions on sexual orientation and gender identity.

Even with the gaps in information, statues and case law extensively detail the government’s obligations to collect and provide equitable public health information to diverse subject communities. For example, the Personal Health Information Protection Act 2004 defines personal health information to include “information [that]... relates to the physical or mental health of the individual.” This Act seeks to provide individuals with a right of access to personal health information about themselves, subject to limited and specific exceptions. The Health Protection and Promotion Act requires government actors to ensure “health promotion, health protection and disease and injury prevention, including the prevention and control of cardiovascular disease, cancer, AIDS and other diseases.” It similarly requires the release of personal health information by the Chief Medical Officer of Health if there is “risk to the health of persons anywhere in Ontario.”

Recent case law in Ontario courts affirms an ongoing commitment to the collection and availability of information as it relates to LGBTQ2IA+ communities in Canada. In Order HO-009, access to records of “personal health information” about individuals and their communities is considered a requirement to ensure self-determination and autonomy in healthcare decisions. The decisions in Schuyler Farms Limited v Dr Nesathurai and Ontario Health affirmed a broad scope of the government’s obligation , permitting provincial actors to collect personal health information from medical and information institutions in their capacity as prescribed entities under the Personal Health Information Protection Act.

Despite the need for improvements, the government is still taking some action to collect and make accessible health information as it relates to LGBTQ2IA+ communities. Surveys like the Canadian Community Health Survey (CCHS), Census of Canada and National Household Survey, and the Public Service Employee Survey collect and make accessible a growing body of public health information which details sexual orientation and gender identity. However, the evidence demonstrating a lack of information about the health of LGBTQ2IA+ communities and an affirmed legal obligation to make such information publicly and equitably available suggests a legal argument that more should be done.