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Accommodating Trans Employees in the Workplace

Caitlyn Jenner’s reach is long.

The buzz this newly transformed celeb has stirred about the transgender community warrants fresh attention from organizations big and small.

As of March 2015, seven Canadian provinces and territories explicitly specified protecting “gender identity” or “gender identity and gender expression” in their legislated human rights protections. Five provinces and territories are not explicit about these rights but have documents explaining how such protection is interpreted under other grounds such as “sex.”

Caitlyn

And while, as of June 2015, national human rights legislation in Canada doesn’t explicitly protect “gender identity” and “gender expression,” such protections are interpreted under other grounds.

Here’s a snapshot:

Province Legislation
Alberta While the Alberta Human Rights Act doesn’t single out “gender identity” or “gender expression,” the Alberta Human Rights Complaint Form and Guide says that the protected grounds of discrimination regarding gender “includes the state of being female, male, transgender or two-spirited.” Further, Alberta Bill of Rights amendments that came into force on June 1, 2015, read, “It is hereby recognized and declared that in Alberta there exist without discrimination by reason of race, national origin, colour, religion, sexual orientation, sex, gender identity or gender expression, the following human rights and fundamental freedoms…”
British Columbia While BC’s Human Rights Code doesn’t explicitly list “gender identity” under its prohibited grounds, the province’s Human Rights Commission notes that trans people are protected under the grounds of “sex.”
Saskatchewan The Human Rights Code of Saskatchewan explicitly includes “gender identity” within its prohibited grounds of discrimination.
Manitoba The Human Rights Code of Manitoba explicitly lists “gender identity” within its prohibited grounds of discrimination.
Ontario The Human Rights Code of Ontario explicitly lists “gender identity” and “gender expression” in its enumerated grounds of discrimination references.
Quebec Quebec’s Charter of Human Rights and Freedoms doesn’t excplicitly make mention of “gender identity” in its prohibited grounds of discrimination, but it does protect trans people’s from harassment and discrimination under the grounds of “sex.”
New Brunswick While the Human Rights Act of New Brunswick doesn’t explicitly mention “gender identity” under its prohibited grounds of discrimination, the province’s Human Rights Commission protects trans people under the grounds of “sex.”
Nova Scotia The Human Rights Act of Nova Scotia explicitly enumerates “gender identity” and “gender expression” inside its protections.
Prince Edward Island The Human Rights Act of Prince Edward Island explicitly lists “gender identity” and “gender expression” in its enumerated grounds of discrimination references.
Newfoundland and Labrador Newfoundland and Labrador explicitly include “gender identity” and “gender expression” in its Human Rights Act.
Yukon Territory The Human Rights Act of Yukon Territory doesn’t explicitly list “gender identity” in its prohibited grounds of discrimination, but the territory’s Human Rights Commission protects trans people under the grounds of “gender.”
Northwest Territories The Human Rights Act of Northwest Territories explicitly includes “gender identity” in its protection notes.
Nunavut Territory The Human Rights Act of Nunavut Territory does not explicitly list “gender identity” under its prohibited grounds of discrimination, but according to the Nunavut Human Rights Tribunal, trans people are protected under the grounds of “sex.”

 

Some suggestions for Canadian employers with transgender or transitioning employees:

Gender-based self-identification

The Ontario Human Rights Tribunal made it clear in 2012 that it is discriminatory for an employer to insist that an employee be treated in accordance with the gender assigned at birth for employment purposes, because such behaviour fails to treat that person in accordance with his/her “lived and felt” gender identity. Other provinces are following suit.

Personal pronouns

Employers should support a new transgendered employee or a currently transitioning employee by using the employee’s preferred pronouns and names and, where possible, updating corporate records to reflect the same.

Dress codes

Employees should be allowed to dress according to their expressed gender, and employers’ dress-code policies should accommodate transgender or gender non-conforming individuals (e.g., staffers shouldn’t have to wear clothing stereotypical of their birth gender, such as ties for men or dresses for women).

Confidential record-keeping

An organization should have a valid reason for collecting and using personal information that identifies a person’s gender, and it should keep this information confidential.

Public bathrooms

Trans people should have access to bathrooms, change rooms and other gender-specific services and facilities based on their “lived” gender identities.

It behoves employers to learn about how to accommodate the needs of trans people and, if required, to develop or change policies, and undertake training, around them. Only by doing so can the country’s professional operations ensure that gender non-conforming individuals in their employ are treated with dignity and respect, enjoy equal rights and are protected against discrimination.

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