In February 2016, the Toronto District School Board reported that it intends to open all-gender washrooms in all public schools across the city, as a way of creating a more inclusive school environment for its students. There are already approximately 50 schools in the Toronto District School Board that have all-gender washrooms, which any student can use, regardless of their biological sex, gender identity or gender expression.1
The Ontario government indicated that it stands behind the Board's initiative, and the office of Education Minister Liz Sandals commented:
The Education Act requires schools and school boards to provide safe, inclusive and accepting learning environments to support the achievement and well-being of all students, including students who are lesbian, gay, bisexual and transgender.2
Gender identity and gender expression are prohibited grounds of discrimination under the Ontario Human Rights Code (the "Code"). The Ontario Human Rights Commission's Policy on preventing discrimination because of gender identity and gender expression, issued in April 2014, defines gender identity and gender expression as follows:
Gender identity is each person's internal and individual experience of gender. It is their sense of being a woman, a man, both, neither or anywhere along the gender spectrum. A person's gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person's sexual orientation.
Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun are also common ways of expressing gender.
Pursuant to the Code, school boards have a duty to accommodate individuals, including both employees and students, who require accommodations because of needs related to their gender identity or gender expression, to the point of undue hardship.
In accommodating the needs of students because of their gender identity and/or gender expression, schools should be mindful of the overarching principles of accommodation: respect for dignity, individualization, integration and full participation. The most appropriate accommodation for a trans student will be the one that best respects the student's dignity, meets the student's individual needs based on the circumstances at hand, and promotes the student's inclusion and participation.3
The Toronto District School Board initiatives around all-gender washrooms will go a long way in promoting inclusion in its schools, and will allow more students to feel comfortable in going to the washroom, without having to consider their gender identity and/or gender expression.
Everyone has the right to use facilities in accordance with their lived gender identity and/ or gender expression. A student whose gender identity or gender expression differs from the student's birth sex cannot be forced to use the washroom which corresponds with the student's birth sex. Similarly, if a trans student is not comfortable using a gender-specific washroom, the student should be permitted to use another washroom that is not associated with any one gender. In some cases, schools are permitting students to use staff or principal washrooms as an accommodation, where all-gender student washrooms are not available.
The spirit of the Code, as well as the various policies on equity and inclusive education implemented by school boards across the province, is to make students feel accepted and included, regardless of their gender identity or gender expression As a means of ensuring all students are provided with inclusive and supportive environments in Ontario's schools, and in light of Ontario human rights law, school boards should consider the following practices and principles when updating their policies and when accommodating/supporting trans students4:
- Trans students should be recognized and treated as the gender they live in, whether or not they have undergone sex reassignment surgery, and regardless of whether their identifying documents reflect their gender identity and/or gender expression.
- Trans students can have their names or sex designations changed on class lists, school assignments, identity documents or other records. Unless there is a legal requirement to have the student's legal name on a record or document, a request for this type of change should be accommodated. Special considerations may apply with respect to a student's OSR, and school boards should consult with legal counsel if there is a question around changing a student's name on their OSR.
- Dress code policies should be flexible and inclusive. A student should be permitted to wear the uniform that corresponds with their gender identity and/or gender expression, or they should be permitted to wear a more gender-neutral uniform if desired.
- Curriculums should be inclusive and reflective of the student community.
- Students should be able to participate in gym class and on sports teams in accordance with their lived gender identity and/or gender expression.
- Classrooms should be as inclusive and gender-neutral as possible. For instance, games or exercises that divide students into teams based on gender should be avoided.
- Students should be permitted to use the washrooms, change rooms and locker rooms that correspond with their lived gender identity and/or gender expression.
- School boards should review their rules, practices, policies and facilities to remove barriers and avoid negative effects on trans students. Policies and practices should be inclusive of everyone.
- Privacy is key in the accommodation process. Only the necessary information should be exchanged and it must be kept confidential, and shared with school board staff on a need-to-know basis only.
- School boards should always consider the unique needs of each student, and what is sensitive in the circumstances given the student's feelings and unique vulnerabilities.
- Schools are expected to share information with only those needed to accomplish the accommodation unless otherwise directed by the person making the request. Depending on the wishes of the person making the request, the accommodation process could involve the principal, the student's teacher(s), and, depending on the resources available, the school social worker, the board psychologist, and members of gender-based violence prevention or gender-specific support teams.
Board teachers and other staff should be trained on supporting trans students, and school boards should begin discussions with students about gender diversity.
If a school board is presented with an accommodation request from a trans student or their family, and the board is not clear on what steps should be taken to support the student, the board should seek legal advice. It is essential that school boards are aware of and clear on their obligations to accommodate trans students, both for the purposes of ensuring students are provided with an inclusive school environment, and reducing the risk of legal liability.