Identity versus physical status
Question: If an employee declares themselves transitioning their gender but still appears as their original gender, at what point is the employer legally required to allow the employee to use facilities such as washrooms or locker rooms for their new gender?
Answer: In order to appreciate the employer’s obligations in this context, it is necessary to understand the distinction between sex, gender identity and gender expression. A person’s sex refers to the physical characteristics associated with being male or female. A person’s gender identity is a person’s sense of themselves and may either be different or the same as the sex that they were assigned at birth. Gender expression is how a person presents their gender. How a person presents their gender may not necessarily reflect their gender identity.
In the past several years, provinces across Canada have amended their human rights legislation to include gender identity and/or expression as prohibited grounds of discrimination. In western Canada, Manitoba amended its human rights legislation to include gender identity as a protected characteristic in 2012. Saskatchewan amended its legislation in 2014, expressly including gender identity as a protected characteristic. Alberta amended its human rights legislation in 2015 to include gender identity and expression as prohibited grounds of discrimination. British Columbia followed suit in July of 2016, including gender identity and gender expression as protected characteristics under its code. However, for those provinces whose human rights legislation does not specifically include gender identity and/or expression as a prohibited ground of discrimination, the law is clear that transgender people are protected from discrimination on the ground of sex.
As with the previous question, where a workplace policy or rule adversely impacts an employee because of their gender identity or gender expression, an employer will need to take reasonable steps to accommodate that employee. The ability to use the appropriate washroom or locker room is obviously a critical aspect of one’s gender identity and the case law certainly recognizes this. Refusing to protect an employee’s rights regarding the use of a washroom that matches their gender identity has been found to be discriminatory.
With respect to this scenario, the best approach is a flexible one. An employee is under no positive obligation to tell the employer that they are considering transitioning their gender. However, once an employee’s gender identity creates barriers in the workplace for the employee, it is at that point that the dialogue will typically begin. The need for open and respectful dialogue in the search for accommodation is critical.
Demanding that the employee use either women’s or men’s facilities based solely on the employer’s assessment of the employee’s appearance would most likely be contrary to the employer’s duty to accommodate. An employer will want to be certain that it has sufficient information in order to meaningfully address an employee’s accommodation requests. However, any request for information should be made with the employee’s dignity and privacy rights at the forefront. For example, requiring medical proof of an employee’s transition where the requested accommodation relates to washroom or change room facilities in most instances would be contrary to the employee’s right to be free of discrimination in employment.
For example, in Vanderputten v. Seydaco Packaging Corp., the Ontario Human Rights Tribunal found that an employer had discriminated against an employee who was in the process of gender transition. The complainant in that case had worked for the employer for a number of years as a male. When she began the transition process from male to female, the complainant was forthright with her employer in her requests to accommodate her sex reassignment. Such requests included the ability to eventually use the women’s washroom and to change in the women’s change room instead of the men’s change room. She also asked for her shift times to be changed so that she would not have to change with her male co-workers in order to avoid harassment and abusive comments from co-workers while changing.
However, the employer refused the employee’s requests, taking the position that it would not consider her requested accommodations until she provided medical and legal proof that she was a woman. The tribunal found the employer’s attitude inconsistent with human rights norms. In the context of gender identity and expression, the accommodation afforded to an employee must be based on the individual and how the individual identifies themselves. According to the tribunal, treating the complainant in the same manner as men until her transition was fully complete amounted to discrimination, as this failed to take into account the complainant’s need for identity. The workplace discrimination was further compounded by the employer’s failure to provide a safe work environment and failure to respond to the employee’s complaints of harassment by co-workers, which were again, based on the same prohibited grounds of discrimination.
In the present scenario, an employer may want to explore using single stall washrooms or unisex washrooms that use floor to ceiling walls with gender neutral sink areas. It is important to bear in mind that, in the context of gender transition, an employer’s obligations extend well beyond providing appropriate washroom and change room facilities. Employers should have appropriate guidelines in place to assist employees who are transitioning from one gender to another at the workplace. Such guidelines might set out the employer’s role in facilitating the transition process, medical leave entitlements and benefits coverage, updating employee records, and dress code provisions.
Again, flexibility is key in the search for accommodation. Taking the lead from the employee through respectful dialogue will go a long way to facilitating a safe work environment. Both the employer and employee are under a shared obligation to meaningfully participate in the process. While it is true that an employee is not entitled to the perfect accommodation, it goes without saying that in the context of gender transition an employer must be sensitive to the employee’s needs.
For more information see:
• Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 (Ont. Human Rights Trib.).
Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected].
