CALL ME CAITLYN: GENDER IDENTITY AND GENDER EXPRESSION IN THE WORKPLACE
​NOVEMBER 2015  | AUTHOR: MEGAN BURKETT

 
Over the past few years, the transgendered community has received a lot of positive media coverage.  In 2014, Laverne Cox was the first openly transgendered person to be nominated for an Emmy in the acting category for her role in the show Orange is the New Black. She was also the first openly transgendered person to appear on the cover of Time Magazine.  In 2015, the media coverage continued with Bruce Jenner revealing that he identified as a transgendered woman and later transitioning to Caitlyn Jenner.
 
With this increasing awareness, it is time for organizations to review their practices and policies. In 2012, the grounds of “gender identity” and “gender expression” were added to the Ontario Human Rights Code, R.S.O. 1990, Chapter H.19 with respect to harassment and discrimination. Organizations would have an obligation to accommodate transgendered individuals to the point of undue hardship.
 
The Ontario Human Rights Commission also released a Policy on Preventing Discrimination Based on Gender Identity and Gender Expression (the Policy) in 2014 available on their website at: www.ohrc.on.ca/en.  The Policy covers individuals who are transgendered or gender non-conforming.
 
According to the Policy, gender identity is a person’s experience of gender anywhere along a gender spectrum. Gender identity may be the same as or different from an individual’s birth-assigned sex. Gender expression is how a person publicly presents their gender.  This can include an individual’s appearance, such as hair, make-up, dress, body language and voice, or their behaviour.    
 
 
Given these changes to the legislation, companies will need to ensure their policies and internal practices are compliant.  The following are areas where changes may need to be made:
 
Dress Code: The dress code should not prevent transgendered person from dressing to the gender they identify with.  One option is to change the dress code so that there is no longer a list of specific clothes for a particular gender.  Instead, the dress code could have a general list of clothes that are acceptable for all employees.
 
Company Policies: A Human Rights Policy should be updated to add gender identity and gender expression to the list of protected grounds.  A Workplace Violence and Workplace Harassment Policy should be updated to include gender-based violence and violence against transgendered persons.  
 
Training: Company training programs should be expanded to include gender identity issues. The training should include the types of behaviours that are inappropriate in the workplace and that could result in a breach of a company policy.  This includes insulting or negative comments, jokes, comments about appearance or clothing, refusing to use the self-identified name of a transgendered person, and exposing or threatening to expose someone as transgendered.  
 
Washrooms: Transgendered employees are permitted to have access to washrooms that correspond with their self-identified gender.  For example, having washrooms that are non-gender specific or are single-occupant washrooms will ensure that all employees feel comfortable using the washrooms and have been accommodated.
 
Privacy: Ensuring an employee’s personal information is kept secure and confidential and only requesting personal information where relevant and necessary will assist in ensuring that sex, gender identity and other information such as medical history is not disclosed.  
 
If you have any questions relating to any of the above, please do not hesitate to contact Megan Burkett at mburkett@kmblaw.com  or 905.276.0420.

This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.