Gender Expression and Gender Identity: New Protected Grounds of Discrimination

In June 2000, the Ontario Human Rights Commission (“OHRC”) released its Policy on Discrimination and Harassment because of Gender Identity, taking the position that the ground of sex could be used to protect transgender people from discrimination and harassment. The OHRC also called for an amendment to Ontario’s Human Rights Code (“Code”) to add “gender identity” as a prohibited ground of discrimination and harassment.

It took a while – in fact, twelve years – but this past summer, the Code was finally amended to add both gender expression and gender identity as protected grounds of discrimination.

To reflect these new Code grounds, the OHRC is in the process of revising its policy on gender identity and including a segment on gender expression. The OHRC launched a survey on April 24, 2013, inviting public input about lived experiences of discrimination, organizational responsibilities and ideas for advancing the rights of transgendered people. The survey will be available online until May 24, 2013.

In the meantime, the OHRC has developed the following draft working definitions of the new grounds: Gender identity refers to each person’s deeply felt internal and individual experience of gender. A person’s gender identity may or may not correspond with their birth sex, and with social norms of “male” and “female”. It includes an individual’s personal sense of their body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) or other expressions of gender, such as dress, speech and mannerisms. Gender expression refers to the external attributes, behaviour, appearances, dress, etc. by which a person expresses himself/herself and through which others perceive that person’s gender.

According to the OHRC, “Adding these grounds makes it clear that transgendered people are entitled to the same legal protections from discrimination and harassment as everyone else. These grounds will also protect people who face harassment and discrimination because they are perceived to be trans¹ or do not confirm to stereotypical gender norms.”

Before these grounds were added, it was necessary to fit these types of discrimination and harassment complaints under other protected grounds – such as sex or disability. For example, see:

• Sheridan v. Santuary Investments Ltd. (c.o.b. B.J.’s Lounge)², where it was found that transsexuals in transition who are living as members of the desired sex should be considered to be members of that sex for the purpose of human rights legislation. Therefore, it was discrimination on the basis of both sex and physical and mental disability to prohibit a transsexual in transition (i.e. from male to female) from using the women’s washroom facilities.³
• Vanderputten v. Seydaco Packaging Corp.⁴, where it was found that a transgendered employee had been subject to poisoned work environment through, among other things, name-calling, harassing comments, being pushed, having things thrown at her, and postings on bulletin boards. It was also found that insisting that the employee be treated, in all respects, as a man until she completed the sex-reassignment surgery was discrimination on the basis of sex.⁵ The employer was specifically criticized for: (a) insisting on describing the employee as male, both orally and in writing; (b) failing to consider, explore or implement any solutions that would have allowed the employee privacy while changing; and (c) failing to investigate and respond reasonably to her allegations of harassment.

Other examples include Magnone v. British Columbia Ferry Services⁶, Nixon v. Vancouver Rape Relief Society⁷, MacDonald v. Downtown Health Club for Women⁸, XY v. Ontario (Government and Consumer Services)⁹, and Finan v. Cosmetic Surgicentre¹⁰.

Lessons for Employers

• Gender identity is linked to a person’s sense of self, and the sense of being male or female. A person’s gender identity may be different from their birth-assigned sex. Gender identity is not the same thing as a person’s sexual orientation, which is also protected under the Code.
• Issues involving the treatment of transgendered¹¹, intersex¹², transsexual¹³, cross-dressers¹⁴ and other gender identities are complex. They are often linked with notions of privacy, identity, public decency and sexuality, which will undoubtedly require a balancing and reconciling of various rights and interests.
• Any negative and unwelcomed treatment of an employee that is, even in part, because of that employee’s gender identity and/or gender expression is discrimination and/or harassment under the Code. This includes such things as recruitment, training, testing, compensation, promotion, transfers, terminations and any other personnel actions.
• Be prepared to consider, explore and implement solutions.
• Ignorance is no defence. Educate, educate, educate! Excellent resources exist for employers to educate themselves, and their employees, on issues relating to gender identity and gender expression. For example, see the OHRC website and Trans Pulse.

As a partner at Siskinds in its London, Ontario office, Mary Lou practices exclusively in the area of management-side labour and employment law. If you have any questions or would like more information on this topic, please contact Mary Lou Brady at [email protected] or call 519-660-7794.

¹ An umbrella term used to describe individuals who, to varying degrees, do not conform to what society usually defines as a man or a woman.

² [1999] B.C.H.R.T.D. No. 43.

³ This is consistent with the OHRC’s position that transgender persons should be treated in a manner that is consistent with the gender that they present and, accordingly, should be provided access to appropriate facilities (e.g. washrooms, examination areas, change rooms, other men-only / women-only services).

⁴ 2012 HRTO 1977 (CanLII).

⁵ At para. 65, “[The employer] failed to take into account the applicant’s needs and identity. 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. For non-transgendered people, their identity will reflect the sex assigned at birth based on their genitals. However, for transgendered people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.”

⁶ 2008 BCHRT 191 (CanLII), involving an employee’s claim that her employment was terminated because she was a transsexual.

⁷ 2005 BCCA 601 (CanLII), involving a post-operative male to female transsexual who was denied the opportunity to volunteer her services as a rape counselor.

⁸ 2009 HRTO 1043 (CanLII), involving use of a women’s only fitness facility by a pre-operative male-to-female transsexual.

⁹ 2012 HRTO 726 (CanLII), involving the ability of transgendered persons to obtain a change in sex designation on their registration of birth without having sex-reassignment surgery.

¹⁰ 2008 HRTO 47 (CanLII), involving a refusal by a plastic surgeon to perform genital surgeries on transsexual patients.

¹¹ People whose life experience includes existing in more than one gender. This may include people who identify as transsexual, and people who describe themselves as being on a “gender spectrum” or as living outside the categories of “man” or “woman.”

¹² People who are not easily classified as “male” or “female”, based on their physical characteristics at birth or after puberty. This word replaces the inappropriate term “hermaphrodite.”

¹³ People who were identified at birth as one sex, but who identify themselves differently.  They may seek or undergo one or more medical treatments to align their bodies with their internally felt identity, such as hormone therapy, sex-reassignment surgery or other procedures.

¹⁴ People who, for emotional and psychological well-being, dress in clothing usually associated with the “opposite” sex.