Gender Identity and Gender Expression Explained
If you have not heard the terms “gender identity” or “gender expression” before, don’t panic. Up until the last 10-15 years, issues around gender diversity were more commonly portrayed in the media – often with unfortunate and offensive stereotypes – than they were visible in day-to-day life.
Today, not only is gender more broadly regarded as a spectrum but transgender and non-binary individuals are often more comfortable expressing themselves publicly without feeling the need to hide their identities. Furthermore, the law recognizes this as well and has put protections in place for these individuals over the past decade.
In 2012, the Ontario government passed Toby’s Act, which added gender identity and gender expression as protected human rights grounds in Ontario. While the law was the first of its kind in North America, the Canadian Human Rights Act has since followed suit – establishing protections now at both the provincial and federal levels.
So what do these protections actually mean for employers and employees? What level do employers need to go to accommodate, and what kind of accommodations can employees expect? How far do employers actually have to go, and at what point does the law consider things to be “going too far?”
Ontario’s Human Rights Code
Ontario’s Human Rights Code (the “Code”) clearly separates gender from sex. Sex is deemed to be assigned at birth (male, female, or intersex), whereas gender is considered to be an “internal and individual experience” according to Ontario’s Human Rights Commission. Gender identity may be the same as one’s sex (commonly known as cis-gender), or it may be different.
Similarly, gender expression is defined as how someone presents their gender. This may be based on their choice of clothing, how they wear their hair, make-up, voice, or even their chosen names and pronouns. It is also important to note that gender is separate from sexual orientation. An individual who may present as ‘gender non-conforming’ (not in line with stereotypes based on assigned sex) without their sexual attraction changing.
While the initial legal protections in place were focused mostly on transgender individuals, the law today protects individuals across a range of the gender spectrum. These protections are entrenched in the Code not only in regard to employment, but also for receiving goods and services, for housing accommodations, in joining a union or professional association, or even in entering into a private contract.
In short, it is illegal to discriminate against someone because they are transgender or gender non-conforming. The law prohibits denying them employment or harassing them at work, refusing to sell or lease them housing, refusing to offer them goods or services from your business, or refusing to contract with them.
Duty to Accommodate
Like other forms of discrimination, discrimination against gender identity or gender expression may be very direct, or it may be incredibly subtle. While openly mocking someone for their fashion choices or for evidence of their gender transition may be obvious forms of discrimination, there are others to watch for as well.
For example, excluding trans employees from social opportunities may be discriminatory, such as not inviting them to participate in an extracurricular bonding activity. Employers also need to watch out for inappropriate side comments or ‘jokes’ from colleagues, as they do not ‘fly under the radar’ and can be the basis for a complaint. Dress codes may still be in place, but it should not be based around cis-gender expression.
What do employers need to do to accommodate gender identity and gender expression? This can naturally be a sensitive area, and so much of accommodation is based around dignity and acceptance and ensuring that individuals are integrated instead of ostracized. Welcoming individuals without asking prying questions or making inappropriate statements can go a long way toward even the slightest accommodations.
Under human rights law, employers are required to accommodate to the point of ‘undue hardship.’ In other words, accommodations might have some cost or burden involved, but not one that will be unduly burdensome for the business to handle. Not every business might be able to build a gender-neutral washroom, but there may be other options such as making some washrooms gender neutral, or installing privacy curtains in change rooms, etc.
When are accommodations not required?
When are accommodations not required?
While the law requires accommodation, the truth is that not every situation is appropriate for accommodation. Most accommodations will be fairly straightforward and take minimal effort or expense, but when a request is unreasonable, an employer or service provider may not have to oblige, especially if a request is made in bad faith.
The case of Yaniv vs. Various Waxing Salons (No. 2), 2019 BCHRT 222 garnered significant media attention in 2019. Jessica Yaniv, a transgender woman in BC (who now goes by Jessica Simpson) had alleged discrimination against various waxing salons in her area that refused to provide her with service. The complaint was not the first time that the BC Human Rights Tribunal had heard a discrimination claim from Ms. Yaniv.
In this instance, Ms. Yaniv had approached a number of home-based salons run by South Asian, largely immigrant women for whom such services are generally a private and discreet matter. Ms. Yaniv had approached them through the Facebook marketplace using a male name and a photo of her presenting as a male, then explained that she was a trans woman.
She then aggressively filed numerous complaints with the Tribunal (14 of them), and in each one sought financial compensation as a result of her perceived discrimination. The Tribunal dismissed Mr. Yaniv’s complaints, ruling that she was acting essentially in bad faith in an effort to obtain compensation, “rather than to have the Tribunal rule on the substantive issue that the complaints raise.”
According to the Tribunal, “Ms. Yaniv’s comments about settlement and her behaviour throughout the process supports that she targeted small businesses, manufactured the conditions for a human rights complaint, and then leveraged that complaint to pursue a financial settlement from parties who were unsophisticated and unlikely to mount a proper defense.” Worse still, she branded the women who would not serve her publicly as “bigots,” and made demeaning statements about their assimilation into “Canadian culture.”
Interestingly, the Code has also been found not to extend to those who have attempted to claim hair, namely facial hair, as a matter of cis-gendered expression. In Browne v. Sudbury Integrated Nickel Operations, 2016 HRTO 62, Mr. Browne claimed that the company’s clean-shaven policy (required for tightly-fitting respirator masks) infringed on his protected right to express his gender by growing facial hair.
The Tribunal, while noting that human rights are to be applied broadly, disagreed, stating:
“…interpreting “gender expression” broadly to extend protection to the right of men to grow beards would do violence to the important and fundamental purposes sought to be achieved by human rights legislation. There is nothing to indicate that bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression.”
It is crucial to note that cases like Jessica Yaniv’s are the exception, not the rule. Most individuals who express their gender in any sort of non-conforming way have navigated a difficult path towards living authentically and continue to navigate that path every day. There is a great deal that employers and fellow employees can do to assist with that process.
This is part one of our look at gender identity and gender expression and the first in our series of articles about human rights accommodation. Later this month we’ll look at some real world best practices that employers can follow to make their workplaces more inclusive. In the meantime, if you have issues that you would like to discuss, contact our office at any time to set up a consultation.