When it comes to the two very different concepts of gender identity and gender expression, many scenarios are possible.
For example, one can be transgendered, transsexual, intersexed, a cross-dresser or even androgynous. While western society has made huge inroads in accepting and accommodating people who do not fit neatly into traditional genders, the law has a tendency to lag. But now, at least in Ontario, the law has caught up — or has it?
Last summer, the province amended the Ontario Human Rights Code to include gender expression and gender identity as prohibited grounds of discrimination. The code itself is remedial legislation that gives everyone equal rights and opportunities without discrimination in five distinct areas: employment, accommodation, contracts, membership in vocational associations and trade unions, and, lumped into one category, goods, services, and facilities. It’s employment accommodation that’s the focus of this article.
One of the objectives of the code is to prevent discrimination and harassment in employment on the basis of various prohibited grounds, four of which are sex, sexual orientation, gender identity, and gender expression. And this is where the amendments may create uncertainty.
The amending bill is called the Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression.
What is significant is that, despite the bill’s title, it doesn’t fully define the terms gender identity and gender expression.
According to the Ontario Human Rights Commission, gender identity involves a person’s “intrinsic sense of self” and “the sense of being male or female.” Going with these definitions, gender identity would not include people who are transsexuals (those who have the sex organs or genitalia of one gender but who identify with another), cross-dressers (those who wear clothes of the opposite sex), transgenderists (those who live as a member of the opposite sex), and intersexed people (more commonly known as hermaphrodites or those who possess organs and genitals not clearly identifiable as belonging to one sex or the other).
As far as employers are concerned, the amendments to the code leave many unanswered questions as to what constitutes the sense of being male or female. For example, do the amendments compel an employer to allow a woman — transgendered, transsexual or otherwise — to wear a miniskirt to work if it relates to her sense of being female? And would she have protection from discrimination under the code if she wished to wear a bikini top to a professional office environment?
Although the amendments remain untried at this point, the way an employee dresses is arguably very much an expression of gender subject only to employer restrictions related to a bona fide occupational requirement.
Another potential problem for the employer would involve workplace washroom facilities. In most circumstances, employers can reasonably accommodate transgendered individuals and transsexuals, but what about a male cross-dresser who only sometimes identifies as female and prefers to use the women’s washroom at the workplace? Indeed, what accommodations are necessary and appropriate in that situation? Given the amendments to the code, it is likely the employer must accommodate the cross-dresser by allowing him to use the women’s washroom if he indeed identifies as a female.
Section 24 of the code identifies exceptions to discrimination in so-called special employment circumstances. Under that section, special employment means employment in a religious, philanthropic, educational, fraternal or social institution or at an organization that is primarily engaged in servicing the interests of people identified by race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability. Also, the organization must employ only or give preference in employment to people similarly identified.
Thus, if an institution that supports battered women will not employ men, that would in the ordinary course not breach a man’s right to equal treatment with respect to employment. Curiously, however, s. 24 does not list gender expression or gender identity as exceptions to unequal treatment in employment. This was obviously an unintended loophole and a clear omission. Again, the trouble is that the amendments to the code do not go far enough.
For sure, the amendments to the code will have an impact on how employers choose to accommodate their employees when it comes to gender identity or gender expression. However, with the lack of clarification on the issue, there is huge potential for uncertainty and liability on the part of employers.
Deborah Howden is a lawyer and partner with Shibley Righton LLP in Toronto. She is a labour and employment law specialist who does extensive work with institutional clients.
