Gender identity protected under human rights legislation

In the span of one week in June, Ontario and Manitoba joined the Northwest Territories as the only Canadian jurisdictions to include gender identity as a prohibited ground of discrimination under human rights legislation.

Ontario, meanwhile, took the additional step of also adding gender expression as a protected ground.

While the moves may signal a broader trend towards bringing gender identity under the explicit protection of human rights legislation, they will likely have little practical impact on employers since discrimination based on gender identity had already been generally covered under sex-based discrimination.

Still, the additions demonstrate the growing recognition of discrimination based on gender identity issues. To understand what those issues encompass, however, it is helpful to consult the policies and guidelines published by Human Rights Commissions.

The Ontario Human Rights Commission describes gender identity as being “linked to an individual’s intrinsic sense of self and particularly the sense of being male or female.  Gender identity may or may not conform to a person’s birth-assigned sex.  The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender.” For example, individuals whose birth-assigned sex does not conform to their gender identity include transsexuals (those who were identified at birth as one sex but who self-identify differently), transgenderists (those whose life experience includes existing in more than one gender), intersexed persons (those not easily classified as male or female based on their physical characteristics at birth or after puberty, formerly described as hermaphrodites) and cross-dressers.

The Manitoba Human Rights Commission, meanwhile, describes gender identity as “a person’s internal, individual experience of gender.” This is separate from sexual orientation, which refers to “whether a person’s romantic, affectional or sexual attraction is heterosexual (‘straight’), homosexual (‘gay’, ‘lesbian’) or bisexual (‘bi’).”

In the workplace, examples of discrimination based on gender identity could include denying a transsexual employee access to washroom facilities appropriate to their gender identity or failing to reasonably accommodate a transgendered employee’s request for leave for medical treatment related to gender identity.

As for dress codes, the Manitoba Human Rights Commission says that such codes do not generally contravene the province’s Human Rights Code. But if an employer requires all employees to wear a standard sex-specific uniform without reasonable cause, “it may result in discrimination against employees who are adversely affected by this policy based on their gender identity and who do not have a uniform option of comparable comfort and dignity to that of other staff. An alternative approach might be to allow for more individual expression of gender within a broader range of uniform options.”

Despite the fact that employers will likely have to make few practical changes based on the recent legal updates, it is still worth reviewing policies, procedures and conduct that could impact gender identity issues in the workplace.

Prepared in collaboration with Joel Kom, summer law student at Norton Rose Canada LLP