Does your workplace have gender-neutral washrooms? Does your workplace have a dress code that accommodates all forms of gender expression? These are just two of the questions raised by the Ontario Human Rights Commission’s (“OHRC”) Policy on Preventing Discrimination because of Gender Identity and Gender Expression (the “Policy”). In this multi-part series, the Policy will be examined in three stages:

Introduction to the Policy; Understanding how the Policy can Prevent Workplace Discrimination; and Challenges that Employers might face.

Part 1: Gender Identity, Gender Expression and the Workplace – Introduction to OHRC’s Policy

On June 19, 2012, the Ontario Human Rights Code (the Code) was amended to include “gender identity” and “gender expression” as prohibited grounds of discrimination. In January, 2014, the OHRC released an updated version of its policy on preventing discrimination on the grounds of gender identity and gender expression. The policy sheds light on the meaning of ‘gender identity’ and ‘gender expression’ in the context of human rights and discrimination.

At the outset, the OHRC notes that the Code does not define the grounds of ‘gender identity’, ‘gender expression’ or ‘sex.’ Rather, it looks to social science research, jurisprudence, self-identification and use in contemporary culture to understand the substance of these terms as expressed in the Code and OHRC policies.

Notwithstanding this approach, the policy does provide basic definitions of terms that are key to understanding these relatively new grounds of discrimination. Most importantly, the policy defines the term ‘sex’ as the anatomical classification of people as male, female, or intersex, which is usually assigned at birth. This definition is contrary to the common use of the term ‘sex’ in three ways:

One’s sex is not required to be either female or male – it can also be intersexed. Sex is something that is ‘assigned’ at birth as opposed to being an inherent and permanent characteristic. This assignment may not align with the gender identity or expression of the individual to whom that sex is assigned. Sex is an ‘anatomical’ classification. By specifying that sex is to be understood purely as an anatomical feature, the OHRC recognizes that one’s gender identity and expression may contrast with their anatomical features.

This understanding of the term ‘sex’ is key to learning how workplaces can potentially discriminate against individuals based on their gender identity and gender expression. Next week, this series will expand on ‘gender identity’ and ‘gender expression’ and consider how the policy can prevent workplace discrimination.

Written with the assistance of William Goldbloom, articling student.