In 2012 Ontario amended its Human Rights Code to add protection against discrimination based on gender identity and expression. The Senate is currently reviewed proposed law changes that would will criminalize gender identity hate crimes and outlaw discrimination at a federal level.
Even in provinces without specific gender identity protection, most jurisdictions have included gender identity discrimination in the protected trait of sex. When the Alberta Human Rights Tribunal denied a claim from a transgender teacher on the grounds that gender identity is not specifically protected, the Court of Queen’s Bench overturned the decision, requiring the tribunal to hear the case.
So what should HR do if an employee who has previously presented to work as one gender asks for support in transitioning to another?
Employment and labour lawyer Gita Anand, who specializes in human rights law, says the first thing to do is collaborate with the employee to make a plan. Ask them what they need and what their plans are. She suggests if possible the employee should take a short break from work after the first announcement to give people a few days to adjust.
“The HR person and the transitioning employee should write a communication to be delivered prior to a weekend saying ‘Jack will be transitioning from male to female. After a one week vacation Jack will return as Jill and will be using the woman’s washroom,’ “ Anand says.
An important note for HR professionals is that Canadian law prohibits employers from asking employees to prove their gender.
Your other employees will likely have many questions, but the employee involved should not be expected to answer them. Contact your EAP provider for suggestions of local experts who can come in and hold an educational seminar for employees and managers.
On page two: education, pronouns and benefits
Transgender people are being more vocal and more public with their experiences and the number of trans-related cases before Canadian courts and tribunals is increasing, so what does HR need to know?