by Alix Herber
Human rights legislation protects a wide range of individuals in Canada. It prohibits harassment and discrimination in employment on obvious grounds such as age, ethnic origin, gender, and disability. It also prohibits harassment and discrimination in many provinces on less obvious grounds, such as record of offenses and sexual orientation. And that less obvious list appears to be growing, with the introduction of gender identity and gender expression to the list of prohibited grounds in Ontario.
Bill 33, known as Toby’s Act or the Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression, 2012, provides that every person has the right to equal treatment without discrimination because of gender identity or gender expression in the provision of services, goods and facilities, accommodation, contracting, employment, and membership in a trade union. It was passed into law on June 19.
The bill specifically amends the code to ensure that every person in Ontario is free from harassment because of sexual orientation, gender identity, or gender expression with respect to accommodation and employment. This is the next step in the evolution of the code, which was last amended in the mid-1980s to prohibit discrimination on the basis of “sexual orientation.”
These recent amendments come soon after the April 2012 decision of the Human Rights Tribunal of Ontario in XY v. Ministry of Government and Consumer Services, which found that legislation requiring persons to have “transsexual surgery” before they can change the sex designation on their birth registration is discriminatory.
Meaning of gender identity and gender expression
What is yet unknown is how the terms “gender identity” and “gender expression” are to be defined. The bill does not define the terms.
Generally, gender identity is understood to mean 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. Gender identity is different from sexual orientation.
The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behavior, and conduct as they relate to gender. Issues around gender identity or transgendered persons are apparent, for example, when a person cross dresses.
What this means for employers and service providers
Employers, at least in Ontario, will have to learn and understand the role of gender identity and gender expression in the workplace. They will have to ensure their existing policies and procedures are updated to reflect the new protections, including those policies relating to appearance and dress code.
Ontario employers will also need to ensure that their hiring policies don’t create any barriers to the hiring of transgendered persons. They will be responsible for ensuring that transgendered employees fully participate in the workplace. Furthermore, Ontario employers will need to meet their duty to accommodate, including considering the impact to transgendered persons regarding workplace attire and/or uniforms, change rooms, and bathroom facilities.
Ontario is the first province (outside of the Northwest Territories) and indeed the first jurisdiction in North America to have expanded protections in this area to specifically include gender identity and gender expression. This was the fourth attempt to put in these amendments. Already in British Columbia a similar bill was introduced in May 2011 but didn’t make it past first reading. It is likely this issue will be brought forward again in the future. And it may be that similar protections eventually become enshrined in the laws of the other provinces in Canada in the future.
Working closely with her clients, Alix Herber enjoys providing strategic and practical advice to employers on a wide array of workplace issues including, labour arbitrations, performance and discipline management, employee terminations, wrongful dismissal litigation, employment standards, and human rights. Alix spent several years as In-House Counsel of one of North America's largest food processing and distribution companies and as Senior Director of one of its major operating divisions. In those roles, she focused on operational labour relations and the administration of approximately 50 collective agreements, leading negotiations in bargaining a number of them.