Coping with gender reassignment surgery (Toughest HR Question)

Legal protections, best practices for dealing with transgendered employees
By Brian Kreissl
|Canadian HR Reporter|Last Updated: 02/22/2013

Question: One of our employees recently underwent gender reassignment surgery and is due to return to the office next month. How do I handle the objections and anxieties of other employees in dealing with this person (such as using a different washroom and addressing the employee) while also ensuring the workplace is welcoming, supportive and respectful?

Answer: While we have come a long way in battling racism, sexism and homophobia in our society, gender expression and identity is one area many people still feel uncomfortable with.

Let’s face it, gender is a huge part of our identities as individuals and many of us are uncomfortable with the idea people would want to change such a fundamental part of who they are.

Therefore, some individuals feel quite uncomfortable sharing washroom facilities with someone who used to be of the opposite gender. And many people — even if they want to do the right thing and be supportive — might be unsure about which pronoun to use when referring to the person, what name to use or how to deal with the employee generally.

But just because we recognize some people are uncomfortable doesn’t mean ostracizing or otherwise discriminating against the person is acceptable. That’s where an employer needs to step in by helping set the tone and educating and informing employees about interacting with people who choose to identify as members of the opposite sex.

Legal rights of transgendered people

Treating transgendered individuals with dignity and respect isn’t just the right thing to do, it’s the law.

Human rights legislation in Ontario, Manitoba, Nova Scotia and the Northwest Territories now specifically outlaws discrimination in employment with respect to gender identity and expression. And federally, a private member’s bill seeking to amend the Canadian Human Rights Act by adding gender identity as a prohibited ground was recently introduced before Parliament.

But even in the absence of specific provisions, it is likely human rights legislation in other jurisdictions would also protect transgendered employees from discrimination on the grounds of gender — and possibly sexual orientation, in some cases.

Protection under the law applies whether or not a person has undergone or is undergoing a sex change. While some people do have surgery or hormonal treatment, many more choose not to.

So, even if someone who is biologically female in every sense chooses to identify as a man by acting, dressing and talking in a typically “male” manner without undergoing any type of gender reassignment, the law still recognizes his right (notice I used the male pronoun) to identify as male and be free from discrimination in employment.

It is possible to legally change one’s sex by amending the sex designation on a birth certificate. While there are some differences across jurisdictions, this has been accepted in Ontario if two medical practitioners signed a certificate confirming the individual underwent “transsexual surgery.”

However, a recent Ontario Human Rights Tribunal decision found genital surgery wasn’t necessary in order for a man to be legally recognized as a woman. Following that decision, the Ontario government changed the law so a transgendered person can now legally change gender with a letter from a physician or psychologist. In other jurisdictions, however, gender reassignment is still required in order to legally change one’s sex.

This has obvious implications for employers — especially with respect to how employee information is captured in a human resources information system (HRIS) and the supporting documentation needed to make such a change.

Suggestions for employers

Gender reassignment surgery can allow transgendered people to express who they really are. It’s a bit of a cliché, but many of these people actually do feel like a “woman trapped in a man’s body” — or vice versa. So, in many cases, even before undergoing a sex change, the person has already been living life and identifying as being a member of the opposite sex.

Therefore, just because a person’s physical body has changed, it’s important to realize she is still the same person, with the same likes, dislikes, dreams and desires. Yet it is also important to understand some things may change as a result of the surgery.

Choosing to undergo gender reassignment surgery is a courageous and often difficult decision — one that should be supported by the employer.

There are several ways the individual’s employer and colleagues can be supportive:

• Meet with the employee beforehand to determine how and what should be communicated.

• Hold information sessions for other employees prior to the employee’s return to work.

• Have a respectful workplace policy outlining the employer’s commitment to non-discrimination and treating all employees with dignity and respect.

• Ask employees to call the employee by his chosen name and the pronoun matching how he wants to be addressed.

• Allow employees to dress in accordance with dress code requirements matching their gender identities.

• Allow employees to use washroom facilities corresponding with their gender identities.

We all have our prejudices, and it’s unrealistic to expect you will be able to change everyone’s hearts and minds. But it is possible to educate and inform employees and ensure transgendered employees are treated with the dignity and respect they deserve.

Brian Kreissl is the managing editor of Consult Carswell. He can be reached at brian.kreissl@thomsonreuters.com. For more information, visit www.consultcarswell.com.

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