Canada: Transgender Employees: Best Practices

Transgender rights are a burgeoning area of law across Canada. Most recently, amendments made to the Alberta Bill of Rights on March 10, 2015, which came into force on June 1, 2015¹, recognize gender identity and gender expression as being explicitly protected.² Newfoundland & Labrador recently promised to introduce a bill to amend provincial legislation so gender assignment surgery would no longer be required to change the sex designation on identity documents.³ Likewise, the Yukon NDP tabled a petition for transgender equal rights in April, and in May, the Legislative Assembly debated amending legislation to allow changes of gender assignment on birth certificates without surgery.⁴ Although British Columbia was the first province to eliminate the surgical requirement for amending sex designation, the Liberal government has repeatedly declined to sign a pledge supporting transgender equality legislation, attracting the ire of the Vancouver Pride Society. All of this follows on the heels of changes in human rights legislation in Ontario, Manitoba, and, at an as yet undetermined date, Nova Scotia.

In April 2014, the Ontario Human Rights Commission published its Policy on preventing discrimination because of gender identity and gender expression⁵ (the "Ontario Policy"). The Ontario Policy defines gender identity as an individual's sense of being a man, a woman, both, neither, or anywhere along the gender spectrum, which may be the same as or different from his/her birth-assigned sex. Gender expression is how a person publicly expresses or presents their gender, including behaviour, outward appearances such as dress or hair and makeup, and chosen name and pronoun.

Many other provinces have endorsed the Ontario Policy, recommending its guidelines as a useful resource for employers. The following are a few suggestions for Canadian employers supporting new transgender employees or current employees in the process of transitioning:

Accepting Gender Based on 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.⁶ Tribunals/Courts in Ontario⁷ and Alberta⁸ have held that the former requirement for changing sex designation on birth documents (sexual reassignment surgery and corroborating statements from two physicians) is discriminatory and unnecessary.

All of the above strongly supports the notion that regardless of an individual's birth-assigned sex, employers should be accepting of an employee's self-identified gender and should not request further documentary proof.

Use of Preferred Name/Pronoun

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 (including email signatures and letters of reference). Where documents reflecting an individual's legal name/gender are issued, such as a record of employment or a T4, the individual's preferred name/gender should be included alongside the legal name, wherever feasible. The Ontario Policy recommends that employers question whether there is a legal requirement for the collection of information about gender, and if such information is legally required (e.g. legally accurate SIN information is required for income tax purposes), there should be policies in place to ensure the confidentiality of the information.⁹

A Flexible Dress Code

If an employer has a dress code in place, such rules should not have a negative effect on transgendered employees. Employees must be allowed to dress in accordance with their expressed gender, and dress code policies should be flexible and accommodate transgender or gender non-conforming individuals (e.g. employees should not be required to wear clothing stereotypical of their birth gender, such as ties for men or skirts for women).¹⁰

Human rights legislation pertaining to transgender rights in all of the provinces is evolving at a rapid pace and Canadian employers would be well advised to ensure their workplace policies are inclusive and up to date. Developing transgender-friendly guidelines and rules will both foster a positive and productive work environment, as well as shield an employer from liability for discrimination, intentional or unintentional.

Footnotes

1 Trans Equality Society of Alberta Fact Page, "Human Rights Across Canada," last updated: July 2015, available online: http://www.tesaonline.org/human-rights-across-canada.html ("TESA Fact Sheet").

2 RSA 2000, c A-14.

3 CBC News, "Transgender activist Kyra Rees wins court battle over IDs," posted: July 22, 2015, available online: http://www.cbc.ca/news.

4 Yukon Legislative Assembly, Official Report of Debates (Hansard) 33rd Legislature, 1st Session, No 212 (13 May 2015) at 6375-6376.

5 Ontario Human Rights Commission, Policy on preventing discrimination because of gender identity and gender expression, released: April 14, 2014, available online: http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression (the "Ontario Policy").

6 Vanderputten v Seydaco Packaging Corp., 2012 HRTO 1977 at para 66 (available on CanLII).

7 XY v Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII).

8 CF v Alberta (Vital Statistics), 2014 ABQB 237 (CanLII).

9 The Ontario Policy at p 35.

10 Ibid at p 41.

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