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Beyond a Binary: Gender Identity And Expression Under The Code
In Ontario, the Human Rights Code (Code) protects an individual’s right to gender expression and identity, but what exactly does that mean? Basically, it means that under the Code, gender isn’t binary. The Ontario Human Rights Commission has defined some key terms:[1]
Gender identity: 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 their birth-assigned sex.
Gender expression: 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.
Transgender: An umbrella term referring to people with diverse gender identities and expressions that differ from stereotypical gender norms. It includes but is not limited to people who identify as transgender, trans woman (male-to-female), trans man (female-to-male), […] gender non-conforming, gender variant or gender queer.
Nonbinary: The Commission does not define nonbinary, and instead refers to “gender non-conforming” or “gender queer” people under the category of transgender.
The Commission is clear: gender goes beyond male and female. But who do these protections apply to, and how do they work?
The Human Rights Tribunal of Ontario (HRTO) has said that while “everyone has a gender identity,” the Code does not apply everyone in the same way. Specifically, “the protections of the Code for cisgender persons [are] not the same as for transgender individuals.”[2]
For example, a cisgender man brought a claim against a clean-shaven policy at his workplace on the basis that his beard was part of his gender expression.[3] While gender expression can include hair, the HRTO found that extending protection to the right of men to grow beards would not fulfil the “important and fundamental purposes sought to be achieved by human rights legislation.”[4]
So, the Tribunal has determined that although these grounds apply to everyone (cisgender is a gender identity), the purpose of the grounds are to protect queer and trans people.
How do pronouns fit in?
The British Columbia Human Rights Tribunal has stated that using proper pronouns is not an accommodation, but rather, “a basic obligation.”[5] The Canadian Human Rights Tribunal has similarly stated that “the use of accurate and correct pronouns for trans people is not a question of preference, it is a matter of right.”[6]
But you shouldn’t fear making a genuine mistake. As one adjudicator explained:[7]
I appreciate that for many people the concept of gender-neutral pronouns is a new one. They are working to undo the “habits of a lifetime” and, despite best intentions, will make mistakes.
[…] A person’s intention can go a long way towards mitigating or exacerbating the harm caused by misgendering. Where a person is genuinely trying their best, and acknowledges and corrects their mistakes, the harm will be reduced.
So what can you do to create an inclusive workplace for your queer and trans employees? There are a few important steps you can take:
- Create a transition accommodation policy: Have guidelines in place for employees who are transitioning, including the development of an Individualized Accommodation Plan that will address the use of a new name, correct pronouns, and/or the accommodation of any medical needs.
Ensure Inclusive Washroom Policies: The HRTO has made clear that employees have a right to use a washroom that corresponds to their expressed gender identity, regardless of their sex assigned at birth. And no “proof” of gender identity should be requested.[8]
Use gender-neutral language: This is becoming the new normal. British Columbia recently introduced new legislation to correct “outdated language” in legislation. Similarly, the HRTO recently encouraged an employer to update its policies to use nonbinary, gender neutral language throughout. [9]
Adopt a Gender-Neutral Dress Code: Let employees dress in a way that feels authentic to them without enforcing traditional gender norms.
[1] “Policy on preventing discrimination because of gender identity and gender expression” (2014) Ontario Human Rights Commission.
[2] N.B v. Ottawa-Carleton District School Board, 2022 HRTO 1044 at para 216.
[3] Browne v. Sudbury, 2016 HRTO 62.
[4] Browne v. Sudbury, 2016 HRTO 62 at paras. 37, 39.
[5] Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para 80.
[6] Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43.
[7] Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at paras. 83-84.
[8] See Ontario Salsman v. London Sales Arena Corp, 2014 HRTO 775; Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977; Sheridan v. Sanctuary Investments, 1999 BCHRT 4; Ferris v. O.T.E.U., Local 15, 1999 CanLII 35191 (BC HRT).
[9] Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 at para 142.w