On June 19, 2017, five years after “gender identity” and “gender expression” were added as protected grounds of discrimination in Ontario’s Human Rights Code, the Federal government has added “gender identity” and “gender expression” to the Canadian Human Rights Act.
All Canadian provinces now have “gender identity” and/or “gender expression” expressly included in their human rights legislation. Yet many employers are still unclear as to what they need to do to respect the human rights of their transgendered or gender non-conforming employees.
Understanding the Terminology
The uncertainty around employers’ obligations may be partly attributable to the fact that neither “gender identity” nor “gender expression” are defined in the legislation. Employers seeking guidance may consider the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression (“Policy”). Key definitions in the Policy are 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.
Trans or transgender is an umbrella term referring to people with diverse gender identities and expressions that differ from stereotypical gender norms. It includes but is not limited to people who identify as transgender, trans woman (male-to-female), trans man (female-to-male), transsexual, cross-dresser, gender non-conforming, gender variant or gender queer.
Gender non-conforming individuals do not follow gender stereotypes based on the sex they were assigned at birth and may or may not identify as trans.
The practical implications of an employer’s duty to protect against discrimination on the basis of gender identity and expression, and the corresponding duty to accommodate, are evolving as the legislation is interpreted. At this stage it’s clear that employers’ responsibilities arise at all stages of employment from hiring to termination, and it is likely that adjudicators will continue to interpret legislation to include the following employer obligations:
- providing accommodations for transgendered or gender non-conforming persons when necessary;
- ensuring that transgendered and gender non-conforming persons have access to washrooms based on their lived gender identity;
- ensuring that dress codes are inclusive of everyone and flexible; and
- establishing guidelines for assisting gender transitioning employees.
Employers who receive an accommodation request should take steps to ensure they are collecting the relevant information without infringing upon employee privacy rights, and must ensure they conduct a detailed, individual assessment in each case.
Obligations Regarding Gender Transitioning
Issues involving gender transitioning can be particularly sensitive given the personal nature of the circumstances. The Policy warns that employers should be especially cautious where an employee is transitioning into his or her felt gender identity, as the employee can experience a great deal of stress during this time.
An individualized gender transition accommodation plan is suggested to enable the employee, employer and union representative (where the employee has asked for the union’s involvement) to work together during the transition process. Open communication with the employee is essential when drawing up an individualized accommodation plan. The employee’s preferences should be determined and respected wherever possible, for example, with respect to steps such as messaging and communication.
The protections against discrimination in employment on the basis of “gender identity” and “gender expression” are now in force in the Canadian Human Rights Act. While the need for protection on the basis of these grounds is not a new issue ‒ the current amendments are the result of previous iterations of proposed bills introduced over the last 12 years ‒ it is clearly more at the forefront than it has been in the past. This is likely due in part to the fact that transgender and gender non-conforming persons are “living in a bigger, more understanding spotlight than at any previous time.” Consequently, employers who have not already done so should take these key steps without delay:
- review and familiarize yourself with the current issues around gender identity and gender expression (the Policy is a useful reference);
- review workplace policies and programs and revise these as needed to meet the legal requirements; and
- train managers and supervisors on the updated policies and programs, including how to address workplace issues brought by, or in relation to, transgendered or gender non-conforming employees.