As other provinces amend their human rights legislation to include gender identity and gender expression, they will undoubtedly be examining Ontario’s approach.
The Ontario Human Rights Code (“Code”) protects Ontarians on the basis of personal characteristics such as race, creed, family status and disability. Gender identity and expression, which covers transgendered and transsexual people, were added to the Code in 2012. Gender identity and expression are not defined in the Code, however, the Ontario Human Rights Commission provides the following background:
Gender identity is related to a person’s sense of self and the sense of being male or female.
Gender expression concerns external attributes, behaviour, appearance or dress – how people express themselves and their gender.
While these are relatively new grounds to the Code, lawyers may be surprised that the Human Rights Tribunal of Ontario (the “Tribunal”) has already considered issues of discrimination on the basis on gender identity and expression in the employment context.
In a 2012 case , the Tribunal found that an employer cannot insist that an employee be treated as his or her birth gender in the workplace. The employer cannot require evidence that an employee has undergone surgery in order for the employee to be treated as his or her felt gender identity. The Tribunal also acknowledged that not all circumstances would require treating transgendered persons in the exact manner as someone of his or her lived gender. Issues requiring balancing in the workplace may be complex, particularly related to washroom and locker-room use.
All employees in Ontario have the right to equal treatment in employment without discrimination on the basis of grounds listed in the Code. An employer may have a human rights policy that is out-of-date and does not contain gender identity and expression. That does not mean employees cannot complain about discrimination at work on these grounds. The employer must take allegations of harassment or violence in the workplace seriously and investigate these complaints, even if their human rights policy is outdated.
If you have been subjected to discrimination or harassment at work and would like to speak with an employment lawyer who has knowledge about this area of law, please contact us at [email protected] or 647-633-9894.
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