Canada: Trans, Non-Binary, Intersex, Genderqueer. Does Your Business Treat Everyone Fairly?

Last Updated: August 12 2016
Article by Vivienne Reeve

"Fairness and equality are British values", but does your business treat trans, non-binary, intersex, genderqueer and non-gendered people fairly? What do these terms mean?

A US Circuit Court Judge has recently made history in ruling that Jamie Shupe (who is transgender) was legally entitled to change their sex from female to non-binary (Shupe prefers the pronouns 'their' to 'his/hers'). Shupe had struggled with their identity and had for years felt trapped by the requirement to identify as either male or female. Shupe says they now have a place to exist.

This ruling has relevance to the UK, because the Government has acknowledged that trans people in the UK face increased discrimination in the provision of goods and services. Last year, it commissioned the Women and Equalities Committee to investigate and report on transgender equality. In the Government Response to the Committee's Report, the Minister for Women and Equalities addressed the 35 recommendations, acknowledging that while we have as a country made progress regarding gay and bisexual equality, when it comes to trans equality, we all have much to learn.

This raises the question of how much we all understand about trans identity and equality issues. Unless you or those close to you have personal experience of this issue, it can be a daunting area.

Here, we set out what the relevant terms mean, take a look at the current protections and obligations under the Equality Act 2010 (the Act) and what employers and service providers can do to treat trans people fairly.

Glossary of terms*

Gender identity - a person's internal sense of their own gender, whether male, female or something else (see non-binary below).

Gender reassignment - another way of describing a person's transition. To undergo gender reassignment usually means to undergo some sort of medical intervention, but it can also mean changing names, pronouns, dressing differently and living in their self-identified gender.

Gender Recognition Certificate (GRC) - this enables trans people to be legally recognised in their self-identified gender and to be issued with a new birth certificate. Not all trans people will apply for a GRC and you have to be over 18 to apply. You do not need a GRC to change your gender at work or to legally change your gender on other documents such as your passport.

Intersex - a term used to describe a person who may have the biological attributes of both sexes or whose biological attributes do not fit with societal assumptions about what constitutes male or female. Intersex people can identify as male, female or non-binary.

Non-binary - an umbrella term for a person who does not identify as male or female.

Trans - an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, cross dresser, non-binary, genderqueer (GQ).

Transgender man - a term used to describe someone who is assigned female at birth but identifies and lives as a man. This may be shortened to trans man, or FTM, an abbreviation for female-to-male.

Transgender woman - a term used to describe someone who is assigned male at birth but identifies and lives as a woman. This may be shortened to trans woman, or MTF, an abbreviation for male-to-female.

Transsexual - this was used in the past as a more medical term (similarly to homosexual) to refer to someone who transitioned to live in the 'opposite' gender to the one assigned at birth. This term is still used by some although many people prefer the term trans or transgender.

We will use the terms 'trans' for simplicity, as the issues discussed below can affect people falling within this umbrella definition.

Does the Equality Act 2010 adequately protect trans people?

Section 7 of the Act gives protection to a person on the grounds of gender reassignment if he or she is "proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex."

The issue that arises is that not everyone in our society identifies with the traditional binary choices of male or female. Trans people may not identify with either sex, or may change their identity through their lifetime. Intersex people may have the biological attributes of both sexes, or have attributes that don't fit our expectations of a man or a woman. They may identify with one gender, change which they identify with over time, or identify with neither.

The 2016 Women and Equalities Select Committee's Transgender Equality Report (the Report) brought together the evidence of their study into the equality issues faced by trans people and how these can best be addressed. It recommended that the definition 'gender reassignment' should be updated to 'gender identity', as this would be a more flexible phrase, bringing the full spectrum of the trans community within scope of the Act.

The Government rejected this recommendation, stating it considers the current definition is adequate to protect trans people. It cites the current protection afforded to people who suffer discrimination because they are perceived as under-going gender reassignment, or to be male or female when they are not. But what about someone who is discriminated against by a colleague or service provider who knows they are Intersex and doesn't therefore perceive them to be anything else? Are they covered?

The Government's recently published guidance for employers and guidance for service providers does seem to recognise this gap, recommending that good practice means treating everyone, including trans, non-binary and those who don't confirm to gender norms, fairly.

Practical issues faced by trans people at work and when receiving services

Central to being non-binary or trans is the issue of gender identity. As explained above, for some trans people who don't identify with the society norms of male or female, this can cause real practical issues, not to mention distress. Some banks and public service providers have changed their application forms to accept the 'Mx' title instead of the binary Mr, Mrs, Miss or Ms, and added an 'X' option in addition to the usual 'M' or 'F'.

But research and recent news headlines show that not being able to choose these options means that some are denied access to services, or suffer intrusive questioning over their identity and appearance, when a non-trans person would not.

Some providers, such as Emerald Life, recognise the difficulties faced by not only non-binary but also the wider LGBTI community and have recently launched a range of LGBTI-friendly insurance products, to remove the common difficulties faced in dealing with traditional computer systems and business models.

The Government has committed to reviewing the Gender Recognition Act 2004 with a view to considering (among other things) whether they should create a legal category for those who do not associate with the current binary gender identities of male and female. Its best practice guidance already advises employers to include the option of 'other' when asking for the gender of job applicants.

Do the same / single sex services, and the genuine occupational requirement exceptions in the Act, unfairly restrict the equal treatment of trans people?

The Act allows for same sex and single services to be provided if they are a proportionate means of achieving a legitimate aim. Service providers can also refuse trans people access to their services if they can show doing so would be a proportionate means of achieving a legitimate aim.

An example cited as a legitimate exclusion of trans people is access to domestic violence and sexual violence services where vulnerable women or men find it hard to feel safe, particularly in a mixed sex environment. The legitimate aim, a safe haven, is easy to understand. But the unfortunate effect of such a policy is that a trans woman could be refused access to women's only and men's only refuge services, if it is apparent that they are trans (perhaps because they have just transitioned, or are intersex), or they are required to declare it.

The evidence suggests that trans people are often intrusively questioned about their gender identity and private lives before being denied access, which may amount to harassment and breach of their right to a private life. They therefore fall between the binary lines and are left without support. For those who transitioned a long time ago in particular, there is a real question of whether such questioning or exclusion is justifiable.

Similarly, the Act allows employers to recruit either a woman or a man for a job, if their sex is a genuine occupational requirement (GOC). While the legitimate aim in the context of a women's refuge, or a medical centre is easy to see, this is at odds with the Gender Recognition Act 2004 which stopped employers relying on sex as an occupational requirement when an employee held a Gender Recognition Certificate.

The Report recommends that the Act is changed so that trans people who have a GRC (and are legally recognised as being of their acquired gender) cannot be refused access to services or jobs because of their gender identity, even in a scenario like a refuge.

The Government states it agrees with the principle that those who have a GRC should be afforded the full social and legal status of their acquired gender, and refers to the best practice guidance it has published, reiterating that:

The separate / same sex services exception can only be used in exceptional circumstances where:

  1. there is no less discriminatory way of providing the services;
  2. there is evidence of detriment to others; and
  3. the service provider must try and find another way to provide the service to those it seeks to exclude.

Very careful consideration should be given before applying the GOC requirement, as the circumstances where it would be lawful are rare.

Service providers and employers, what can you do?

  • Recognise that society is changing and look at who you offer your services to and how and who you employ and offer opportunities to. Treat everyone fairly.
  • Stress test your systems - do your products, application forms or working practices make life difficult for someone who doesn't identify with binary male or female categories? Do you really need to ask for someone's gender?
  • If an applicant, employee or service user notifies you that they have changed gender, or do not identify as male or female, record this effectively so your staff don't inadvertently harass them by repeating requests / conversations unnecessarily.
  • Accept a range of ID other than a birth certificate. As the Government guidance says, you do not usually need to see a GRC to amend personal details. Not all trans people choose to obtain a GRC.
  • Expand your staff training to include awareness and understanding of gender identity, so that those delivering a service treat all service users with dignity and respect and that employees behave likewise towards each other.
  • If you provide same / single sex services, can you accommodate trans service users?
  • Establish, or widen existing internal networks so that trans and non-binary people in your organisation have a voice and feel supported.
  • Consider designating gender neutral bathrooms.

*Glossary taken from the Stonewall website.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions