They’re among the most marginalized groups in society, routinely facing harassment, discrimination and even violence. But individuals who identify as “trans” or have diverse gender identities are explicitly protected under Ontario’s human rights legislation, according to the Ontario Human Rights Commission (OHRC), which released a new policy on gender identity.
In 2012, all three parties in the Ontario legislature co-sponsored Toby’s Act, a bill that explicitly added “gender identity” and “gender expression” to the protected grounds of discrimination under the Ontario Human Rights Code.
“Before, we had read it into the ground of sex — but it wasn’t mentioned itself, and so many trans people didn’t know they were protected by the code, and many others who had responsibility vis-à-vis gender identity issues weren’t aware of their responsibility,” said Barbara Hall, chief commissioner of the OHRC in Toronto.
Last month, the OHRC’s gender identity policy was revised partly as a response to that, said Hall. The new policy helps further protect the rights of trans individuals, and revises and updates the OHRC’s initial policy around gender identity, which was written in 2000.
“Issues related to gender identity are not well-known throughout society. Many people don’t know what’s being referred to when you talk about gender identity, gender expression — they don’t know the language to use in discussing the issue,” said Hall.
“So the policy partially gives that sort of assistance to people, and then goes on to provide best practices and how-to advice for people that are dealing with the various issues that come up in the context of transgender people.”
The policy doesn’t impose any new legal requirements on employers, according to Andrea York, a partner in the labour and employment group at Blakes in Toronto. Instead, it clarifies obligations that already exist.
Those include the duty to prevent discrimination and harassment — and because gender identity is a protected ground, employers could potentially face a human rights complaint if a trans employee is discriminated against.
“The employee has the right to make a complaint to the Human Rights Tribunal (of Ontario) and the tribunal has very broad powers to remedy any discrimination if it does find that discrimination has occurred,” said York.
A more common scenario, though, is that of accommodation requests.
“One way it could come up is in accommodation requests, so there’s an option then to discuss that request with the employee,” she said.
“This issue does not come up every day... However, when it does, there’s going to be a requirement to accommodate and treat the employees with sensitivity — just like any other issue that comes up with an employee who is protected by the human rights code.
“This does not come up very often but if it’s a simple request, there’s probably a simple solution.”
Beyond issues of complaints and accommodation requests, the policy also shines a spotlight on the need for education around diverse identities, according to Christopher D’Souza, an equity and inclusion consultant based in Toronto.
“For me, it’s one of the last bastions of complete misunderstanding. We’ve not done enough work to (do) what I call ‘interrupting heteronormativity,’” he said.
“As often as we can, we’ve got to interrupt heteronormativity. All our forms are heteronormative, our language is… human identity has been forced into a binary when it really (doesn’t fit).”
Heteronormativity refers to the assumption people fall into the two distinct genders of male or female, and heterosexuality is the norm. Similarly, “cisnormativity” refers to the assumption all people are “cisgender” (their gender identity “matches” the sex they were born as).
Identities that don’t fit heteronormative assumptions can often face marginalization and misunderstanding, said D’Souza — and things are further complicated when an individual holds intersecting identities.
“Once you look at concepts of intersectionality — so if somebody self-identifies as transgender or transsexual, and they also have a racialized identity or a disability — that really ramps up their potential to be marginalized,” he said.
“Human identities don’t exist in a vacuum — they inform each other and influence each other, depending on the space.”
The best practices in the policy are important because a culture of inclusivity doesn’t just benefit employees — it benefits clients and customers as well, said D’Souza.
“True inclusivity means that the person who walks into an agency feels welcome and they feel that there’s a promotion around dignity and around their identity, no matter what the identity is,” he said.
“The front-line staff needs to be able to address people in a conversational manner that never marginalizes or negates identity, but also promotes respect.”
Organizations should design policies in consultation with people who have lived the experience of these identities, he said.
“Too many times, agencies try to do something with grandiose ideas and they trip because they haven’t really consulted with the people who occupy those marginalized spaces.”
The OHRC’s new policy was created after extensive consultation with members of the transgender community, said Hall — as was the amendment to the human rights code.
“The amendment to the legislation was supported by all three parties (because) the trans community had approached all parties and educated them about the issues they face and the real facts, as opposed to the stereotypes about something that people know very little about,” she said.
“So what may seem daunting initially is actually, when one takes the time to learn about it, very doable. And it’s also an issue that’s not going away… it’s important for employers to learn about the issues here.”
Education and culture change
So what changes can employers make to ensure their organization promotes inclusivity for trans individuals? Gradual, ongoing education is a key component, said D’Souza.
“That’s where the rubber hits the road... It’s not a boss saying to an HR group, ‘This is the way it’s got to be’ and walking off the podium — it doesn’t work like that. Human perceptions, around identity especially, take a long time to shift.”
In terms of policy changes, it depends on what kind of respect in the workplace policy an employer already has, said York.
“It might be broad enough to cover these kinds of issues… however, it’s always worthwhile to provide some sort of training to employees from time to time.”
And that training and education shouldn’t single out any particular group or identity — instead, it should discuss all of the protected grounds under the code, said D’Souza.
“People get a more macro understanding of how identities impact each other. You can have different modules that focus on specific ones but, again, it doesn’t look like you’re centring out one group,” he said.
“Anytime you work to create inclusion around one identity, you often in the net catch up other identities in a positive manner.”
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