Human rights law embracing ‘gender identity’

Rights already protected but changes provide greater clarity, protection
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 01/14/2013

A few years ago, at a previous job, Sandy decided to make the transition from a man to a woman, without undergoing surgery. So he informed his 50 or so co-workers ahead of time.

“Because I work in a somewhat arts community, everybody was extremely receptive. I didn’t have any negative feedback at all, which was amazing.”

But not all transgender people are treated so favourably, which is why more provinces, including the Northwest Territories, Ontario, Manitoba and Nova Scotia — and possibly Canada as a whole — have changed or are changing human rights legislation to embrace the status. While sexual orientation is covered, transgender is an umbrella term that can include anyone from transsexuals and transvestites to cross-dressers. So more regions are addressing the discrepancy, most commonly through the terminology “gender identity” or “gender expression.”

“(Transgender) doesn’t fit the existing categories, it may not fit in at all. And even if they do stretch to try to apply it, it doesn’t necessarily really fit their situation,” said Wayne MacKay, Yogis & Keddy chair for human rights law at Dalhousie University in Halifax.

In previous cases, sexual orientation or disability was used to explain the discrimination around transgender, but those terms can be problematic, he said.

“(The legislation) sends a pretty clear message, an important, symbolic message, that this is a group that deserves and needs protection,” said MacKay. “It also makes it clear to employers, landlords — anyone else covered by the act — that they should not discriminate based on transgendered status… However they word it, it would then be subject to the same justifications as other human rights cases in terms of finding bona fide justification and reasonable accommodation.”

Anecdotally and through studies, it’s been shown trans people face discrimination and harassment at alarmingly high levels, said Kevin Kindred, Halifax-based chair of the Nova Scotia Rainbow Action Project.

“When trans people consider coming out or transitioning or leading true lives, one of the major concerns is whether that’s going to impact their employment prospects... because they’re not confident that they’re going to be treated fairly in the workplace,” he said. “So making that clear in the law is a huge step forward for the community.”

On the other hand, the amendments are not that big of a change, said Kindred, who is also an employment and labour lawyer. Any human rights commission would consider discrimination claims by transgendered people and refer to them as sex discrimination claims. But the question is whether that’s truly an appropriate characterization, he said.

“Making it explicit is going to serve a good educational function to let people know about the protections that in some way were there anyway.”

It’s true that the Canadian Human Rights Commission and Canadian Human Rights Tribunal have read in transgender rights in cases before them, said Randall Garrison, a British Columbia MP who introduced Bill C-279 to Parliament, which would add gender identity and gender expression to the list of statuses protected under the Canadian Human Rights Act and the Criminal Code. But that didn’t mean they had dealt with all the possibilities.

“By specifically listing transgendered people as prohibited grounds for discrimination, we might cover things that could be problematic in the future,” he said. “And there are some legal savings for people — they don’t have to go to court and argue their discrimination is like other kinds of discrimination. It kind of puts you on another step when you introduce the case in courts. You don’t have to say, ‘It’s like a disability’ or ‘It’s like discrimination based on sex.’”

Types of discrimination, accommodation

In 2012, when Sandy decided to undergo sex re-assignment surgery, she was already presenting as a woman at her new place of work. But she approached HR to tell them of her intentions, and her need for a two-month medical leave.

“They don’t really need to know. They just need to know that you’re going away, then you submit the forms to the insurance company,” she said. “But (from) a legal standpoint, it is good for me to spill the beans.”

Sandy said she is still worried about how people might react, not having discussed her transition with her new colleagues.

“Even today, I’m still a little paranoid here and there, after it’s all said and done.”

Discrimination around transgendered people can range from blatant discrimination and harassment to failure to accommodate, which comes up often in regards to gender spaces — and bathrooms in particular, said Kindred.

“A trans person will always prefer to use a gender-neutral bathroom. It’s a good idea for employers to have single-cell bathrooms available that don’t require gender markers in order to have access to them. But if that’s not an option, then a trans person will use the bathroom that’s appropriate to how they present themselves,” he said. “If someone has a problem with using the female washroom when a transgendered person is able to use it, the problem is with the other co-worker, not with the trans person.”

Dealing with the washroom question can be a challenge, but adding separate washrooms may not be the best solution because a transgender person presenting as a man or woman is “not some third new category, strange in-between category,” said MacKay.

“It does raise some tricky issues of balance,” he said. “Getting into (a) human rights code is an important vehicle symbolically and for education and for protection, but it doesn’t solve immediately the way people think, so you’ve got to work on that too.”

Giving co-workers some time to adjust to the change is a good idea, said Sandy.

“When I first transitioned, there was a couple of people having sticky problems with the pronouns, but I had patience,” she said. “You can’t expect too much from people because it does take time for people to absorb it and get used to it.”

Privacy, confidentiality issues

There may also be issues around privacy and confidentiality, said Garrison. For example, a company might start working on a transition plan for an employee and out her as a transgendered person before she is ready to do that.

An employee might also transition his name before he changes his physical appearance, said Kindred, and that involves HR records and email addresses. But it can become complicated as not everyone who transitions changes their designation on their birth certificate, and the laws are different in every province, he said.

“Make sure the employee has the appropriate level of input into that plan and that you’re dealing not just with the practical issues but the more sensitive issues.”

Another area that could be contentious is medical benefits, if a person leaves for treatment, said Garrison. There are few surgeons who perform the surgery in Canada, so quite often people have to travel out of province and be away from work for a considerable time.

The most important thing is “there actually be a transition plan and the employee and employer sit down in a consultative way, figure out how to make accommodations,” he said.

But not all people who transition are interested in the reconstructive surgeries, said Kindred, and the process may be more basic, such as taking hormones.

“The best response is to have a sensitive human resource professional who will sit with that employee and come up with a plan that is specific to their circumstances.”

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