In recent years, there has been increased acknowledgement of the difficulties faced by transgendered people, particularly in the workplace. Transgendered people routinely experience harassment and discrimination because of their chosen gender identity. Courts have recognized that they are a "historically disadvantaged group." For these reasons, it is crucial that employers understand the issues relevant to transgender people and adopt appropriate policies to ensure that these employees are able to work in a safe and secure environment, free from discrimination.
The law is clear that each person is entitled to determine their own gender identity. If a person's gender identity differs from the person's birth gender, the person should be treated according to the gender they identify with. In April 2014, the Ontario Human Rights Commission released its Policy on Preventing Discrimination because of Gender Identity and Gender Expression. This policy sets out some key terms relating to the concept of gender:
- 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.
Although "gender identity" is not an expressly prohibited ground of discrimination in all human rights legislation across Canada, the courts in Canada have consistently held that transgender people are protected from discrimination on the ground of sex. In recent years, jurisdictions across Canada, including the Northwest Territories, Manitoba, Nova Scotia and Ontario have expressly added the terms "gender identity", and in some cases "gender expression", as prohibited grounds of discrimination under their human rights legislation. This means that employers across Canada are prohibited from discriminating on the basis of gender identity in the hiring, training, promoting or firing of transgender employees, unless the discriminatory rule or standard is based on a bona fide occupational requirement ("BFOR").
In British Columbia (Public Service Employee Relations Comm.) v. BCGSEU,  3 S.C.R. 3 ("Meiorin"), the Supreme Court of Canada held that an employer could only make out a BFOR defence by showing on a balance of probabilities that the rule:
- was adopted for a purpose rationally connected to the performance of the job;
- was adopted in an honest and good faith belief that it was necessary to fulfill the legitimate work-related purpose; and
- was reasonably necessary to accomplish the legitimate work-related purpose, in that it was impossible to accommodate the claimant without imposing undue hardship upon the employer.
Accordingly, Meiorin stands for the proposition that an employer has a duty to accommodate its employees up to the point of undue hardship. This duty imposes a legal obligation upon employers to accommodate the needs of transgendered employees. The usual types of accommodations for transgendered employees are not onerous and will likely involve changes to workplace policies or requirements in order to make the working environment more inclusive.
The following items are some examples of the types of accommodation that employers may be required to implement for transgendered employees:
(a) Self-Identification and Employment Records
Transgendered employees must be allowed to define their own gender identity and should be addressed in person by their chosen name and gender. Employees should also be identified by the pronoun of their choice, even if it differs from their identity documents. If gender or pronouns are required on certain employment records, these records should include the preferred gender and pronoun of the particular employee.
(b) Washrooms and Change Rooms
Employers should allow transgendered employees access to washrooms, change rooms and other gender specific facilities based on their own gender identity. If certain facilities or change rooms do not have separate privacy stalls, it is recommended that employers look into specific accommodations to provide gender-neutral facilities for transgendered employees.
(c) Uniforms and Dress Codes
Workplace uniforms and dress codes should be gender neutral and any workplace dress policies should apply equally to all genders. If a workplace has gender specific uniforms, an employee must be provided with the choice of which uniform to wear. In addition, employees must be allowed to dress in accordance with their gender identity.
(d) Recognition of Privacy Rights
In addition to their rights under human rights legislation, transgendered employees also have statutory rights with respect to privacy. Employers must ensure that there is no unlawful or unnecessary disclosure of an employee's personal information, including medical information. For example, disclosing that an employee is transgendered without the employee's permission is a breach of that employee's privacy rights and may constitute harassment.
(e) Workplace Harassment and Bullying Policies
Harassment is one of the most significant concerns for transgendered employees. Workplace harassment may take the form of inappropriate comments or questions, teasing, isolation, bullying, and verbal or even physical abuse. Employers should ensure that they have workplace harassment and bullying policies in place, which include gender identity and gender expression as prohibited grounds of harassment.
(f) Adoption of Guidelines for Transitioning Employees
Employers should have appropriate guidelines in place to assist employees who are transitioning from one gender to another at the workplace. These guidelines may address issues such as guidelines for facilitating the transition process, medical leave entitlements, medical benefits coverage, processes for updating employee records and dress code and washroom policies, to name a few.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.