Much ado about the washroom

What are a transgender person’s rights regarding washroom, dormitory, changing room and locker access?

Despite legislative changes and the increasing public awareness of the rights of transgendered people, a recent Ontario public service survey found that individuals who identify as transgender still report among the highest rates of harassment and discrimination of any demographic group. The Ontario Human Rights Tribunal has also recognized that transgender people have historically been a disadvantaged group. Employment lawyer Safina Lakhani discusses how employers can make workplaces safer for transgender employees.

In past years, we have seen increasing discourse about the human rights of transgender people in our communities and institutions. This discourse has led to progress in the law and changes in the policies of many institutions. 

One contentious issue of particular interest to employers: Policies on gender-neutral washrooms and change rooms. There has been positive change on this issue, such as the efforts of Jesse Thompson, a transgender teenage boy who filed a human rights complaint against Hockey Canada seeking permission to use the boys’ change room at hockey arenas. In response, Hockey Canada changed its policies to state that “players who identify as trans can use the dressing room corresponding to their gender identity...” Hockey Canada’s transgender inclusiveness policies came into effect during the current hockey season. In addition, school boards such as Ontario’s Peel District School Board and various universities have made policy changes to provide greater access to gender-neutral washrooms.

There have, however, been reports of adverse results when organizations have acted to revise their washroom access policies. In late 2015, for example, women showering in a gender-neutral bathroom at a residence at the University of Toronto reported attempts to record them on cellphone cameras while showering. In response, the University revised its policy on gender-neutral bathrooms so that some bathrooms in residences would be separated by gender for people who identify as men and women, respectively. There reportedly also remained at least one gender-neutral bathroom per floor.

Incidents such as this highlight the tension that is inherent in enforcing human rights. There are competing rights and obligations in any community or institution that must be balanced to ensure that the human rights and safety of all stakeholders is taken into consideration. Employers will doubtlessly face competing interests with respect to this and other issues, and must operate pursuant to policies that account for these competing rights.

Expanded recognition of rights for transgender employees

Although transgender people have long been protected under human rights legislation, it was only in 2012 that the Ontario legislature passed Toby’s Act, 2012, amending the province’s Human Rights Code to recognize “gender identity” and “gender expression” as protected grounds. Before that time, the human rights of transgendered people were addressed under the code in protections against sexual discrimination.

In 2014, the Ontario Human Rights Commission issued its Policy on Preventing Discrimination because of Gender Identity and Gender Expression. This policy sheds light on a number of issues and helpfully includes definitions for gender identity and gender expression.

Under the policy:

• Gender identity is each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from a person’s sexual orientation.

• Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.

Vanderputten v. Seydaco Packaging Corp., is one of the few cases where the Ontario Human Rights Tribunal comments on a transgender employee’s rights in the workplace. In Seydaco, an employee undergoing a gender transition complained that she was harassed, subjected to a poisoned work environment, and discriminated against because of her sex.

Among the employee’s complaints was the employer’s insistence that she be treated in the same manner as men until her gender transition was fully complete. This treatment included the employer’s requirement that the applicant use the men’s change room, despite her complaints to management that it led to harassment and making it clear that she did not want to use the men’s change room. Note that this application was filed before Toby’s Act, but decided after.

The adjudicator found that “the insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity.” The adjudicator went on to hold that it is also discrimination to insist that a transgender person have gender reassignment surgery to be treated in accordance with his or her gender identity.

Accommodation of transgender workers

While the rights of transgender people in the workplace have become a prominent labour and employment law topic in recent years, the analysis regarding workplace accommodations for the protected grounds of gender identity and gender expression remain largely the same. Failure to recognize and respect a person’s lived gender identity, or to accommodate gender transition-related needs may lead to a finding of discrimination under the code.

Employers are required to accommodate transgender employees to the point of undue hardship, bearing in mind health and safety, cost, and outside sources of funding. Workers also have obligations to co-operate with employers, accept reasonable accommodations — even if they are imperfect or not ideal — and facilitate their implementation. 

Washroom, dormitory, changing room and locker access

A transgender person has the right to access washrooms, change rooms, dormitories, lockers and other gender-specific services and facilities based on their lived gender identity. This entitlement extends to people who are in the process of gender transition, regardless of the stage of transition. The person is entitled to select the bathroom that most closely aligns with his or her gender identity.

Note that an employer is not necessarily required to build gender-neutral washrooms or changing rooms because a transgender employee has come forward in the workplace. However, if a transgender employee requests access to a private bathroom or place to change, that request must be accommodated, short of undue hardship.

Challenges with accommodating gender identity and expression in the workplace

The existing cases on gender identity and gender expression highlight the challenges with respect to accommodating transgender people in the workplace. In Seydaco, the tribunal made the following observation:

“This is not meant to suggest that in any circumstance and upon request, a transgendered person must necessarily be treated in exactly the same manner as others with their lived gender. The issues involved in addressing transitions in the workplace are complex, in particular regarding the use of washrooms and locker rooms. Society typically divides facilities based on sex, and separate use of such facilities is linked with notions of privacy, identity, public decency and sexuality. Issues about what human rights legislation requires in terms of treatment of transgendered, intersex, transsexual and other gender identities in areas that have been divided by sex have been, and doubtless will continue to be subject of litigation and analysis under human rights legislation. “

In implementing changes to workplace policies to accommodate transgender employees, employers must also be aware of the impact that such policies will have on other employees and their rights. If employers are not proactive with respect to their policies and expectations of its employees, it is foreseeable that the debate about traditional and progressive views about the use of washrooms and change rooms will become a live issue in the workplace or even in the media. One notable example: the media firestorm that erupted after University of Toronto professor Jordan Peterson released an online video stating that he does not recognize a person’s right to be addressed using genderless pronouns.

By proactively communicating policies and standards of conduct with respect to the rights of transgender people in the workplace, employers will be more likely to avoid conflicts and public controversy. Some best practices include:

• Thinking proactively to include gender-neutral washrooms in the workplace

• Providing proactive training to communicate the rights of transgender employees, while setting expectations of acceptable workplace behaviour

• Promoting the use of respectful and transgender-inclusive language in the workplace

• Adding positive transgender-inclusive visual symbols and images in the workplace

• Identifying and removing barriers in the workplace, including forms that use binary gender categories

For more information see:

Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 (Ont. Human Rights Trib.).

 

Safina Lakhani is a lawyer with Williams HR Law in Markham, Ont., practicing management-side employment, labour, and human rights law. She can be reached at (905) 205-0496 ext. 222 or [email protected]

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