The changes contained in Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code officially came into force on June 19, 2017.
Introduced in May 2016, Bill C – 16 amends the Canadian Human Rights Act by adding "gender identity or expression" as a prohibited ground of discrimination. This means that federally – regulated employers (including, for example, employers in the airline, inter-provincial railway and trucking, banking and telecommunications industries) cannot refuse to employ or continue to employ an individual because of their gender identity or expression. It also means that employers, in the course of providing employment, must not discriminate against employees on these bases.
Bill C – 16's changes bring Canada in line with the provinces and territories, which all have legislation in place that prohibits discrimination based on "gender expression" or "gender identity".
While the Canadian Human Rights Act does not define "Gender identity or expression", provincial approaches offer insight into the meaning of the terms. As an example, in Ontario, "gender identity" is defined by the Ontario Human Rights Commission (OHRC) as "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." Similarly, the OHRC defines "gender expression" as being "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."
Although it is too early to know exactly what Bill C – 16's amendments will require of federally regulated employers, the OHRC's Policy on preventing discrimination because of gender identity and gender expression provides insight into some of the obligations that may be imposed on federally and provincially regulated employers. For example, employers may be required to:
- Accommodate employees who are 'transitioning' from one gender to another
- Use employees' preferred pronouns
- Allow transgender individuals to use their preferred washroom
- Avoid implementing dress codes that require employees to dress in a way contrary to their gender identity
- Avoid collecting data on an individual's gender without a valid reason
For a more detailed discussion of gender identity and expression in the Ontario workplace, please see our three part series:
Written with the assistance of Samuel Keen, articling student.
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