Many individuals experience discrimination, harassment and even violence as a result of having a gender identity which differs from their biological sex. On April 14, 2014, the Ontario Human Rights Commission released its Policy on preventing discrimination because of gender identity and gender expression (the “Policy”). The Policy is aimed promoting recognition of the inherent dignity and worth of trans people, providing equal rights and opportunities without discrimination or harassment on the basis of gender identity and gender expression, and creating a climate of understanding and mutual respect. It provides a comprehensive guideline to employers and service providers for accommodating trans people, assisting them with understanding and satisfying their responsibilities under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) as it pertains to individuals’ gender identity and gender expression.

Basic Obligations Under The Human Rights Code

Under sections 1 to 5 of the Code, every person  is protected from discrimination and harassment because of gender identity and gender expression in employment, housing, facilities and services, contracts, and membership in unions, trade or professional associations.

Gender expression and gender identity are not defined in the Code itself; however, the Policy defines these terms as follows:

Gender identity is each person’s internal and individual experience of gender. It
is their sense of being a woman, a man, both, neither or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their
birth-assigned sex. Gender identity is fundamentally different from a person’s sexual orientation.

Gender expression
is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.

The Policy further provides a definition of “trans or transgender”: “an umbrella term referring
to people with diverse gender identities and expressions that differ from stereotypical norms.” People who identify as transgender, a trans woman (male-to-female), trans man (female-to- male), transsexual, cross-dresser, and/or gender non-conforming are some of the individuals included in this umbrella.

Pursuant to the Code, employers and unions, housing and service providers have a duty
to accommodate individuals requiring accommodation because of needs related to their gender identity or gender expression, to the point of undue hardship.

Accommodation Highlights

In accommodating the needs of individuals because of their gender identity and/or gender expression, organizations should be mindful of the overarching principles of accommodation: respect for dignity, individualization, integration and full participation. According to the Policy, “the most appropriate accommodation will be the one that best respects dignity, meets individual needs, and promotes inclusion and full participation”.

The Policy offers detailed guidelines on how an individual’s needs related to gender identity and/or gender expression can be appropriately accommodated. Some instructional highlights from the Policy are as follows:

  • Everyone has the right to define their own gender identity. Trans people should be recognized and treated as the gender they live in, whether or not they have undergone sex reassignment surgery, and regardless of whether their identifying documents reflect their gender identity and/or gender expression.
  • Trans people can have their names or sex designations changed on identity documents or other records. A person’s self-identified gender should be accepted in good faith, even if identity documents do not match their lived gender. A person’s request to change records and self-identification is usually enough. If an organization requires further proof of gender, it will have to demonstrate that the criteria is legitimate, and that there was undue hardship in complying with the individual’s request without it.
  • People should have access to facilities and services based on their lived gender identity.
  • Dress code policies should be flexible and inclusive. Trans people should not be prevented from dressing according to their lived or expressed gender identity. Legitimate dress code requirements (e.g. safety gear) should not negatively affect trans people, must be reasonably necessary and should not be based solely on gender stereotypes.
  • Organizations should review their rules, practices, policies and facilities, and make changes as necessary to remove any barriers and avoid negative effects on trans people. Policies and practices should be inclusive of everyone.
  • When engaging in the accommodation process, everyone involved should be cooperative and respectful of privacy. Only the necessary information should be exchanged and it must be kept confidential to the extent possible.

Organizations are encouraged to read and become familiar with the Policy, as well as the applicable Code provisions, in order to fully understand their obligations in respect of accommodating trans people.

What Can School Boards do to Meet These Obligations?

The Policy indicates that trans youth are especially vulnerable to bullying and harassment by their peers, citing the following statistics from a Canadian Survey conducted by the Egale Canada Human Rights Trust:

  • 78% of trans students feel unsafe in their schools;
  • 74% of trans youth had been verbally harassed because of their gender identity;
  • 49% had experienced sexual harassment in school because of their gender identity;
  • 37% had been physically harassed or assaulted because of their gender identity.

In addition to their obligations under the Code, school boards are required under the Education Act, R.S.O. 1990, c. E.2 to develop and implement equity and inclusive education policies which address discrimination and harassment on the basis of all Code protected grounds, including gender identity and gender expression.

Ultimately, school boards have an obligation to take steps to prevent and respond to
discrimination and harassment in their schools because of a student’s gender identity and/or gender expression.

In an effort to mitigate the risk of a human rights complaint and to ensure their schools provide
an inclusive and respectful environment for all students and employees, school boards should develop best practices for interacting with, accommodating and protecting trans individuals from discrimination and harassment. In addition to those highlights noted above, some recommended best practices are as follows:

  • When accommodating students or employees because of gender identity and/or gender expression, school boards should consider not only the logistics of an accommodation, but also what is sensitive in the circumstances given the individual’s feelings and unique vulnerabilities.
  • Think ahead. What challenges might the school and/or the trans individual face in the accommodation process? The potential challenges associated with a particular accommodation should not necessarily modify the accommodation; however, school boards and school administrators should be prepared to address and respond to possible challenges so that the accommodated individual feels protected and comfortable at school/work.
  • Work together. The accommodation process should involve the student (or  the employee), the parents or guardians, the principal, the student’s teacher and, depending on the resources available at a given school, the school social worker, and the school psychologist. If possible, and if the student or employee is agreeable, the school may want to consult with another member of the trans community to gain an understanding of experiences associated with gender transitioning.
  • Be considerate of the student or employee’s desire for privacy. Share information relating to the individual’s gender transition and/or identity only with those people who are on a need- to-know basis and only to the extent required to implement accommodation, unless otherwise given authority to share information by the individual.
  • School boards should conduct a review of their policies and practices for inclusion of gender identity and gender expression considerations. In reviewing current practices and developing policies on gender identity and gender expression, school boards should involve consultants in the trans community to the extent possible.
  • Raise awareness. School boards should train employees on and introduce students to gender expression and gender identity issues.

The ultimate goal is providing a learning and working environment for students and employees that is respectful and free of discrimination and harassment. Becoming aware of gender identity and gender expression issues, and raising awareness through policy development and training, will bring school boards one step closer to achieving this goal.

Author

Stephanie Young  
SYoung@blg.com
416.367.6032

Expertise

Labour and Employment
Labour and Employment Law
Education