What are an Employer’s Obligations with Respect to Gender Identity?
Across Canada, there is a trend in human rights law to increase protections for transgendered individuals. Last year, Ontario and Manitoba joined the Northwest Territories in expressly including “gender identity” as a prohibited ground of discrimination under their human rights legislation. Ontario also included “gender expression” as a prohibited ground. In addition, Nova Scotia in 2012 added “gender identity” and “gender expression” to its Human Rights Act to protect transgendered persons from discrimination.
It is important for employers to understand and comply with their legal obligations with respect to gender identity. In those jurisdictions where human rights legislation expressly includes gender identity as a prohibited ground, employers clearly have a legal obligation to not discriminate against transgendered persons, including the duty to accommodate to the point of undue hardship. Even in jurisdictions where there is not yet any express protection for gender identity or gender expression, employers should be aware that several provincial human rights tribunals have found that gender identity is protected from discrimination under the ground of sex. Accordingly, all Canadian employers should provide a non-discriminatory environment for transgendered persons.
Although human rights legislation in Canada does not define “gender identity”, human rights commissions have issued policies to explain the term. For example, the Manitoba Human Rights Commission defines “gender identity” as “a person’s internal, individual experience of gender.” It further defines “gender” as the “roles, behaviour, activities and attributes that a particular society considers appropriate for men and women.” Similarly, the Ontario Human Rights Commission defines “gender identity” as being “linked to a person’s sense of self, and the sense of being male or female. A person’s gender identity is different from their sexual orientation, which is also protected under the Code.”
In October, 2012, the Ontario Human Rights Tribunal issued its decision in a gender identity case which arose before the Human Rights Code was amended to expressly include gender identity as a prohibited ground. In Vanderputten v. Sedayco Packaging Corp, 2012 HRTO 1977, an employee complained that her employer subjected her to discrimination and a poisoned work environment during her transition from living as a man to living as a woman. The employer argued that it was appropriate to treat her as a man until it received medical or legal documentation that she was a woman.
The Tribunal acknowledged that the Code had been amended to include “gender identity” and “gender expression,” but stated that it was also well established prior to the amendments that discrimination because a person is transgendered fell under the ground of “sex”. Therefore, the applicant’s allegations fell under the pre-amendment prohibition on discrimination with respect to sex.
The Tribunal found that it was discriminatory for the employer to insist that she be treated as a man. It explained its reasoning as follows:
Insisting that the applicant be treated in the same manner as men until her transition was fully complete was discrimination. It failed to take into account the applicant’s needs and identity. The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity. For non-transgendered people, their identity will reflect the sex assigned at birth based on their genitals. However, for transgendered people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.
The Tribunal found that the applicant was regularly subjected to name calling and harassment because she was transgendered. Further, the employer created a poisoned work environment by failing to adequately investigate and respond to her allegations of discrimination. Finally, the Tribunal found that her dismissal was based at least in part on her gender identity.
As a remedy, the applicant was entitled to damages in the amount of $22,000 for injury to her dignity, feelings and self-respect, as well as damages equivalent to 8 months of lost wages. Finally, to ensure future compliance with the Code, the Tribunal ordered the employer to develop a formal human rights policy that includes a mechanism for complaints, and to ensure that all its managers are trained by an expert on their duties and responsibilities under the Code.
Employers should review their current policies and practices to ensure that they do not discriminate against transgendered persons. Some of the key areas to consider are dress codes, access to washroom or changing facilities, and the availability of leave for treatment related to gender identity. Employers should also exercise thoughtfulness and sensitivity in the use of pronouns. As the Ontario Human Rights Tribunal acknowledged in the Sedayco case, addressing gender identity rights can pose complex issues in a workplace that may require a balancing and reconciling of various rights and interests. This area of the law is still developing and will likely continue to be the subject of litigation and analysis. Employers should be proactive in updating their policies and educate themselves on their obligations under human rights legislation.