Does your workplace have gender-neutral washrooms? Does your
workplace have a dress code that accommodates all forms of
gender expression? These are just two of the questions raised by
the Ontario Human Rights Commission's
("OHRC") Policy on Preventing Discrimination
because of Gender Identity and Gender Expression (the
"Policy"). In last week's post, we
introduced the Policy:
Part 2: Gender Identity, Gender Expression and the Workplace
– Preventing Discrimination
Gender identity refers to an individual's personal
understanding of their gender, which may be similar or different to
the 'sex' they were assigned at birth. Gender
expression refers to the ways in which individuals present their
gender to others, which may also be contrary to the gender they
were assigned at birth.
One may express their gender by using non-gender specific
pronouns, undergoing medical procedures, taking medical
prescriptions to alter the presentation of their gender or dressing
in a way that is either contrary to their assigned sex or simply
evades any kind of categorization as male or female. Individuals
that express their gender, or have a gender identity that does not
mirror the sex they were assigned at birth, are often referred to
as 'trans' or 'transgender.'
To help prevent discrimination in the workplace, the OHRC
identifies some of the most common ways in which transgender people
face discrimination and highlights what employers can do about
Employees who are 'transitioning' – which may
involve medical procedures in order to transition from one form of
gender expression to another – must be accommodated during
Employers must recognize the lived gender identity of their
employees by using their preferred pronoun (he/she/they) and
Employers must allow transgender individuals to use the
washroom that conforms to their personal gender identity.
Dress code policies must accommodate all forms of gender
expression. Employers cannot require employees to dress in a way
that is contrary to their gender identity.
Employers must have a valid reason for collecting and using
personal information that identifies an individual's gender,
and this information should be kept confidential as it may require
an employee to provide highly personal information about their
assigned sex, which may be different from their gender identity and
Gender identity and gender expression may at first be confusing
because society is so accustomed to understanding 'sex' as
being an inherent, binary characteristic. These policies provide
guidelines to help employers ensure that this understanding of
'sex' and 'gender' changes in order to accommodate
transgender individuals in the workplace.
Next week: Part 3 in this series - Challenges that Employers
Written with the assistance of Andrew Nicholl, articling
Norton Rose Fulbright Canada LLP
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