The federal government has put forward legislation protecting transgender people in Canada — legislation that may become law with “relative ease” as the bill, tabled by the governing Liberals, is likely to garner support among the NDP and Green parties, and even a handful of Conservatives, according to reports.
The bill adds “gender identity” and “gender expression” to the prohibited grounds of discrimination under the Canadian Human Rights Act, and also amends the criminal code to include gender identity and expression under hate crimes provisions.
The implications for the workplace are obvious when it comes to issues such as discrimination and accommodation.
And for activists like Michael Bach, the legislation is more than welcome.
“I’m very pleased to see what looks to be relatively cross-board support for the inclusion of gender identity and expression in the Canadian Human Rights Act, and in fact they took it one step further to amend the criminal code to include gender identity and gender expression as part of hate speech,” said Bach, founder and CEO of the Canadian Centre for Diversity and Inclusion in Toronto.
“It speaks very strongly about the government’s support… but also I’m really pleased to see people like Rona Ambrose coming out and saying she will support the bill, and other Conservatives who traditionally would not have (done so).”
It’s not the first time legislation like this has been tabled in the House of Commons, said Colin Druhan, executive director of Pride at Work Canada in Toronto.
“It actually previously passed in the House of Commons and got stalled in the Senate, unfortunately. So hopefully this time, it being a government bill, that won’t happen and we’ll see gender identity and gender expression added to the grounds that are in the Canadian Human Rights Act.”
A lot of provincial human rights codes already identify gender identity and gender expression, which is certainly helpful for employers that are regulated provincially, said Druhan.
“And now, we’re seeing some concrete action on the part of the government to make sure that that happens for federally regulated employers as well. Because, right now, if there’s an employer who is federally regulated, there’s a bit of a grey area there because gender identity and gender expression aren’t explicitly named in the Canadian Human Rights Act.”
Higher level of discrimination
The need for this legislation is “urgent,” according to NDP MP Randall Garrison, who has introduced similar legislation in the past.
Almost all trans people in Ontario have experienced “everyday transphobia,” according to a 2015 Trans PULSE Project report, using data from focus groups conducted in three Ontario cities in 2006 with 85 trans community members and four family members, and from a survey in 2009-10 of 433 trans Ontarians.
And it’s not just about passing remarks — among trans Ontarians, 13 per cent had been fired for being trans, while another 15 per cent were fired and believed it might have been because they were trans. Also, 18 per cent were turned down for a job because they were trans; another 32 per cent suspected this was why they were turned down.
Twenty-eight per cent of trans Ontarians could not get employment references with their current name or pronoun, and 58 per cent could not get academic transcripts with the correct name or sex designation.
“In the alphabet soup of LGBT, trans people experience a higher level of discrimination, of unemployment. There’s so much transphobia out there,” said Bach.
That’s why making discrimination or hate speech toward transgender individuals illegal at the federal level is a big step, said Christopher D’Souza, a Toronto-based human rights strategist and diversity consultant.
“(But) it really depends on everyone else to follow that lead. You can make something illegal, but then to get people to change their mindset and their actions and language in the workplace — that takes education for people to buy into it and then promote in the their agencies,” he said.
It gives people an anchor to say, “This is the right way to go,” he said. Ethically, people know discrimination is wrong, said D’Souza — but they still have to identity biases they’ve learned during their entire lives.
“We learn biases from the people who raise us, we learn biases from educational institutions, and biases are reinforced by the media and by interactions that we have with people,” he said.
Employer and organizational knowledge of trans issues has lagged behind the knowledge and education around LGBT issues in general, said Bach.
“The trans-identified communities are in the same position we were in about 30 years ago around sexual orientation. The good thing is, thanks to a number of things including the information age, they are jumping forward in terms of their rights much quicker. So it’s really encouraging.”
This is definitely still an area where there needs to be a lot more education among employers, said Renu Mandhane, chief commissioner of the Ontario Human Rights Commission in Toronto, which released a policy on gender identity and gender expression in 2014.
“For a lot of people, this raises uncomfortable issues. They don’t know how to speak with a person about what accommodation needs they might have, and so I think we’re seeing growing public awareness — even in popular culture and media — about the issues facing trans people,” she said.
“On the ground, there are people who have some of the highest attempted suicide (rates); many live in poverty because of discrimination in housing and employment. There seems to still be a disconnect between the protection of these human rights — even when they are protected explicitly in legislation.”
Legislation is always a good start, said Druhan.
“But also getting people talking about these issues and making the general public a little more aware of the barriers and the challenges of people who are trans or people who don’t conform to stereotypes about gender. I think helping people to understand some of the barriers that are in place for these Canadians right now can help people change their opinion or help people change how they include people who are trans or gender non-conforming at work.”
People need to see their own identities reflected in the code to understand they are actually protected from discrimination, said Mandhane.
“We felt like it was really important to see the explicit protections so that people would understand that if they identify as trans, they are entitled to protection under law,” she said.
“Anecdotally, we understand that complaints at the tribunal on the basis of gender identity and gender expression have been going up at the Ontario Human Rights Tribunal, which would suggest that people are more aware about their rights.”
To have an anchor law at the federal level gives people leverage and power to say, “Look, they federally mandated this,” said D’Souza.
“Those people who really care about creating truly inclusive workplaces — places where people go day to day, they spend eight hour- plus interacting with people and doing their jobs — people who care about the dignity of their workers are going to use this.”
They’ve been given a directive — so how do they create a trickle-down effect? said D’Souza.
Accommodation and respect
People who identify as trans don’t actually need any real accommodation insofar as they don’t need anything different, said Mandhane.
“They just need to be able to access, for example, washrooms or facilities that accord with their own gender identity,” she said. “Often, what they’re asking for is just to be respected and not discriminated against rather than some complex form of accommodation.”
So much of the case law in these issues revolves around access to washrooms, she said.
“(But) it’s not like they need a separate facility. It’s simply allowing them to use the facility that accords with their lived gender identity, or even designated maybe… a gender-neutral washroom. Often it’s very simple — the problem actually lies in transphobia and a lot of people still not understanding the trans community.”
Everybody wants to talk about the bathroom debate, said Bach.
“For people who feel like there is going to be a risk situation, I would consider turning it on its head and trying to look at it from the perspective of a co-worker who has finally had the courage to come out as being gender non-conforming, and has come to work as they truly are.
“You might feel a little unsafe in the bathroom because your co-worker who was John yesterday is now presenting as female and sharing the restroom with you. But imagine how John feels coming to work as Jenny, wearing women’s clothing. And that safety that you feel is lacking in the bathroom is actually lacking for Jenny everywhere she goes,” he said.
“Employers need to get out ahead of this, they need to really educate their people… and it’s not hard, it doesn’t have to be very difficult.
“Don’t whisper about it — speak about it in very matter-of-fact terms. If we whisper about it, it (creates a stigma). And there’s nothing about being trans that is in any way shameful.”
Part of accommodation and inclusion may also entail taking a closer look at the systemic language within organizations, said D’Souza.
“Our language is binary. The fact that we constantly use language that’s binary reinforces that… we were inculcated from the moment we entered the school system and the teacher said, ‘Boys and girls...’ And that implication continues to be replicated,” he said. “Our language needs to change — the way we refer to people, the way we continually gender divide people.
“It’s about creating a place where people want to come to work. They promote dignity.”
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