Question: If an employee declares they are transitioning their gender but still appear as their original gender, when is the employer legally required to allow the worker to use facilities such as washrooms or locker rooms for their new gender?
Answer: To appreciate the employer’s obligations, 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 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 human rights legislation to include gender identity or expression as prohibited grounds of discrimination. However, for those provinces without such legislation, transgender people are protected from discrimination on the ground of sex.
If 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 a person’s gender identity and the case law certainly recognizes this when it comes to discrimination.
The best approach is a flexible one. An employee is under no positive obligation to tell the employer they are considering transitioning. However, once an employee’s gender identity creates barriers in the workplace for the employee, the dialogue will typically begin. The need for open and respectful dialogue in the search for accommodation is critical.
Demanding that an 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 it has sufficient information to meaningfully address 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 if the requested accommodation relates to washrooms or change rooms in most instances would be contrary to the employee’s right to be free of discrimination.
In the 2012 Vanderputten v. Seydaco Packaging Corp., the Ontario Human Rights Tribunal found an employer discriminated against an employee who was in the process of gender transition. When she began the transition process to female, she was forthright with her employer in her requests to accommodate her sex reassignment, such as using the women’s change room. She also asked for different shift times so she did not have to change with her male co-workers to avoid harassment and abusive comments.
However, the employer said it would not consider her requested accommodations until she provided medical and legal proof 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 discrimination was further compounded by the employer’s failure to provide a safe work environment and to respond to the employee’s complaints of harassment.
In the present scenario, an employer may want to explore using single-stall washrooms or unisex washrooms that feature floor-to-ceiling walls with gender-neutral sink areas.
But in the context of gender transition, an employer’s obligations extend well beyond washrooms and change rooms. Employers should have appropriate guidelines to assist employees who are transitioning from one gender to another. These 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. Taking the lead from the worker through respectful dialogue will go a long way, and both parties have a shared obligation to meaningfully participate in the process. While an employee is not entitled to the perfect accommodation, in the context of gender transition, employers must be sensitive to their needs.
Leah Schatz is a partner at MLT Aikins in Saskatoon. She can be reached at (306) 975-7144 or firstname.lastname@example.org.
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