Tips for Employers to Accommodate Transgender and Gender Variant Employees
Published February 23, 2018
Associated Areas of law
Recently, the federal government introduced a new bill to guarantee legal and human rights protection for transgender and gender variant persons in Canada. The bill amends federal legislation; namely, the Canadian Human Rights Act and the Criminal Code. However, Nova Scotia has had protection in place since December 2012 when the Nova Scotia Human Rights Act was modified to recognize “gender identity” and “gender expression” as prohibited grounds of discrimination. Though they apply to different jurisdictions, both the provincial and federal legislation generally require that employers take reasonable steps to foster equitable and respectful workplaces for all employees.
Gender commonly refers to an individual’s sense of being a woman, man, both, neither, or somewhere in between. For some, gender is consistent with the sex assigned at birth. For others, gender identity (e.g. their own individual experience) or gender expression (e.g. how they present their gender to the world) may differ. As our understanding of sex, sexual orientation, and gender identity/expression has evolved over time, employer’s obligations to their employees are changing as well.
As with all employees, transgender and gender variant employees have the right to share, discuss, and express their gender identity/expression according to their personal preferences. Where an employee demonstrates that they are being discriminated against on the basis of their gender – such as lack of access to appropriate washroom facilities – the employer will have a duty to accommodate the employee to the point of “undue hardship”. Putting this duty into practice largely depends on context. The Province of Nova Scotia recently adopted new Guidelines to Support Trans and Gender Variant Employees for its civil service, which can serve as useful best practices for fostering an inclusive environment in all workplaces. Nova Scotia is the first province in Canada to issue such guidelines.
For example, transgender and gender variant employees should be addressed by their preferred name(s) and/or pronouns(s). Employee records should also reflect their preferences as well, such as on organization charts, phone directories, databases and mailing lists, email addresses, ID card/access badges, door or desk name plates, and websites. Employers should avoid segregating work responsibilities, social events, and dress codes by gender so that all employees can freely participate. Washroom and change room facilities should be accessible to all employees in accordance with their gender identity, including at off-site meeting sites where possible. Employees are entitled to dress in a manner consistent with their gender identity at a similar standard of dress and appearance as would be expected of other employees in their workplace and/or of a similar position. Finally, transgender and gender variant employees also have a reasonable expectation of privacy and confidentiality, such as if they are undergoing a medical or social transition. When in doubt, communication with the employee and/or consultation with appropriate human resources professionals can help to ensure that everyone feels comfortable and can contribute positively in their workplace.
The new provincial guidelines are accessible at the Public Service Commission’s website: http://novascotia.ca/psc/pdf/employeeCentre/diverseworkforce/Supporting_TGV_Employees.pdf