Accommodating Transgender and Transsexual Employees

Nov 27, 2013

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 An employer may have a human rights policy that is out-of-date and does not contain gender identity and expression.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or violence in the workplace seriously and investigate these complaints, even if their human rights policy is outdated.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.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

k

Recent Posts

Short service, long notice

Employees with only a few years (or even months) of service tend to believe that they aren’t entitled to much notice or pay in lieu of notice upon termination. As we have written before, we have seen a trend of longer notice periods being awarded to employees in...

read more

Toronto Office

702 - 2 Bloor Street West,
Toronto, ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue,
Barrie, ON L4N 9J2

Collingwood Office

220 - 1 First Street
Collingwood, ON
L9Y 1A1

Contact

Phone

+1 (888) 640-1728

Fax

(866) 883-8445

Email

[email protected]

Toronto Office

702 - 2 Bloor Street West, Toronto ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue, Barrie ON L4N 9J2

Collingwood Office

220 - 1 First Street, Collingwood, ON L9Y 1A1

Translate

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!