Canada: Transgender Rights Make Progress

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May 9—HR professionals should be careful not to include transgendered employees as an indistinguishable component of a larger LGBT community, delegates at the Human Resources Management Association conference in Vancouver were told April 27.

“These are very different communities with very different needs,” Elizabeth Reid, an attorney with Vancouver’s Boughton Law, said.

While many trans people do not need or seek accommodation, some adjustments may be needed in the workplace, Reid said, among these;`

  •  providing appropriate washrooms or changing rooms,
  •  having people in the workplace use the name and pronouns preferred by the trans employee,
  •  providing time for medical requirements,
  •  allocating gender-appropriate uniforms and
  •  assisting in transitioning in the workplace.

 

‘An Unfair Burden'

“Gender identity is legally determined by the individual,” Reid said, citing the 2014 Alberta Court of Queen’s Bench case C.F. v. Alberta (Vital Statistics), 2014 ABQB 237, and the Human Rights Tribunal of Ontario case XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII).

It is vital for company management to meet with a person who is transitioning, according to Drew Dennis, principal partner in the Vancouver-based TransFocus Consulting firm, which advises organizations on transgendered workplace issues.

Corporate management should find out how they can help and who is going to communicate the transition to staff, Dennis told Bloomberg BNA.

“Often that burden will fall to the employee to do the communicating,” Dennis said. “I think that’s an unfair burden.”

The employer should avoid the situation where a trans employee just shows up one day presenting in a new gender identity, which “can create some challenges,” Reid said.

‘A Sense of One’s Own Gender'

Not all Canadian jurisdictions have specifically named transgendered as a protected area, leaving it under ‘sex,’ Reid said, even though “gender identity is not a sexual orientation.” It is rather “a sense of one’s own gender.”

Gender identity is a “deeply held internal sense of being male, female or something else,” Reid continued, having nothing to do with biological, birth or genetic status.

Transgendered protections are included in the human rights codes of some Canadian provinces, Reid said.

British Columbia, for example, accords the transgendered protections by including the characteristic under “sex” in the Human Rights Code. On the day of the conference session, Spencer Chandra Herbert, a member of BC's Legislative Assembly, was presenting for the fourth time a bill to specifically add transgendered protections to the code, for which the government of Premier Christy Clark (Liberal) has shown no support.

In this situation, a trans employee who can establish that an employer action taken because of a protected characteristic did (or was perceived to) harm a trans employee and had an adverse workplace impact on the employee has a prime facie case of discrimination under human rights codes, according to attorney Marino Sveinson of Bull Houser.

To contact the reporter on this story: Jeremy Hainsworth in Vancouver at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

The decision in C.F. v. Alberta can be accessed here , the decision in XY v. Ontariohere. More information on TransFocus Consulting is available here.

For more information on British Columbian HR law and regulation, see the British Columbia primer.