In late 2012 the Nova Scotia government passed legislation that extends human rights protection to gender identity and gender expression. Yesterday, the Federal government passed a bill that has been termed a Transgender ‘bathroom bill’ recognizing gender identity and expression as a protected human rights ground. This new legislation promotes gender equality and will require workplace adjustments.
Gender is linked to a person’s sense of self. Gender identity includes:
As human rights legislation expands human rights protection to include gender identity, either expressly or through having the definition of “sex” read more broadly, workplaces must identify steps to deal with immediate gender identification issues that have surfaced as headlined news reports in Canada: Transgender teen allowed to use boys washroom after petition signed by classmates.
To deal with the immediate issue of washroom and gender equality, we recommend that employers:
- Encourage employees to make accommodation requests in writing directly to human resources and provide confidentiality assurances.
- Deal with each request on a case-by-case basis.
- Take reasonable steps to provide accommodation to an employee who alleges that the status quo interferes with the right to free gender expression or identity. Each accommodation should involve collaboration between the parties to explore solutions.
- All employees have a right to a safe restroom facility and the right to use a washroom that best corresponds to their gender identity. Where possible, provide an accessible single gender neutral washroom for use by any employee who desires increased privacy regardless of gender.
- Employees have the right to confidentiality when it comes to human rights accommodation – when a request is made, disclosure to others should not occur unless there is a specific “need to know”.
- Employees have the right to use a washroom that corresponds to their gender identity regardless of their sex at birth – requiring employees to “prove” gender is not appropriate. The employee’s self-identification is the sole measure of gender.
- Workplace training – lack of knowledge about gender identity has the potential to create misunderstanding and tension in the workplace. Consider a human rights workshop or briefing session on the issue of gender identity as a protected characteristic under human rights legislation.