A year after the province amended the Ontario Human Rights Code to recognize gender identity as a ground for discrimination, the Law Society of Upper Canada has designed an updated model policy for law firms when it comes to inclusiveness for people who identify as lesbian, gay, bisexual, and transgender.
The model gives law firms guidance on issues from confidentiality to celebrating marriages as well as which bathroom transgendered staff should be able to use.
According to a recent 10-year report by the law society’s discrimination and harassment counsel, five per cent of all complaints the office received related to sexual orientation. In addition, a 2004 Law Society of Alberta report showed that 88 per cent of gay, lesbian, and bisexual lawyers felt there was discrimination on the basis of sexual orientation in the profession.
Susan Ursel, an employment and human rights lawyer at Ursel Phillips Fellows Hopkinson LLP, says although some of the model policy’s contents may be obvious, it’s still important to articulate them.
“I thought it was very important that they actually start to say some things some of us might think are obvious but need to be articulated,” says Ursel, who often works in matters related to lesbian and gay communities.
In addition to the issue of fairness in the workplace, the policy also deals with matters of cultural inclusiveness, such as the celebration of employee marriages and other milestones.
“Milestones in the personal lives of individuals who work at the firm that are celebrated by the firm shall include all individuals, regardless of their sexual orientation or gender identity,” the model policy states.
It’s the smaller things firms can sometimes overlook, says Ursel.
“We might say . . . ‘Gee, we don’t discriminate against anybody,’ but we may completely overlook the fact that somebody just got married because it’s a same-sex marriage,” she says.
“We don’t know how to handle it — call attention to it or not to call attention to it — whereas the policy gives us an idea that it’s appropriate to celebrate things that need celebrating and to mourn with our colleagues when their significant others pass.”
She adds: “I think it creates a space for people to do what as human beings they want to do. They don’t want to feel like they’re putting a foot wrong and this policy says, ‘No, that’s not putting a foot wrong; it’s doing the right thing.’”
Firms can adapt the model as a whole or include it in their existing policies, according to Paul Saguil, chairman of the Ontario Bar Association’s sexual orientation and gender identity law section.
Saguil, who’s also part of the advisory group consulted in drafting the policy, says the guide was necessary because of the invisibility of lesbian and gay individuals as opposed to other equity seekers.
“There are certain issues that are unique to LGBT people and that’s why [the policy] is important,” he says.
Like Ursel, Saguil found the clause on law firm functions and celebrations an important one. “That’s key because sometimes people just forget or assume otherwise,” he says, adding it’s important to consider inclusiveness not just structurally but socially as well.
The model policy also suggests a way of addressing the question around which bathroom transgendered staff should use, an issue Ursel says “gets people all bent out of shape.”
When it comes to this apparent quandary, the model policy has a simple solution.
“The firm respects the needs of those who identify as transgender regarding the use of washrooms and gender-specific facilities,” it states. “It is that person’s right to use a washroom that is in accordance with their gender identity and presentation.”
According to law society spokesman Roy Thomas, the policy needed an update to accommodate new laws and legal questions.
“The equity initiatives department and the equity and aboriginal issues committee update their resources from time to time to ensure consistency with legal developments and evolving policies and practices,” he said.
“In the case of this model guide, it had not been updated for almost 10 years. Since the last publication, there have been a number of legal developments, including the inclusion of the grounds of gender identity and gender expression in the Human Rights Code and updates in definitions,” he added.
The model policy includes a glossary of terms, a feature Ursel says is particularly important. “Having a language to describe what’s going on has been recognized as very important in human rights for generations,” she says.
In addition to these features, the model policy has provisions that respect individuals’ choice to keep information about their sexual orientation and gender identity secret. It also includes guidance on pensions, life insurance, and the definition of a parent.
The policy would apply to “everyone working for the firm or who is a partner, director, member or employee of the firm, whether part-time, full-time or casual, regardless of their position in the firm, including (professional and administrative staff, articling students, summer students, paralegals, salaried lawyers, contract lawyers, associates, and partners),” the law society guidance says.
Firms that wish to draft a written policy dealing specifically with sexual orientation and gender identity should first create a committee involving “respected” members, the law society suggests.
“It is most important that the committee include respected individuals of the law firm who appreciate the importance of the issues to be addressed and who will be able to communicate these matters to others within the law firm,” the law society guidance says.
There may be questions about why the regulator would single out a specific community for commentary, says Ursel, who adds that in this case, it was important to do so.
“There’s always this tension in human rights between acknowledging difference and not seeing difference. For a long time, our policies have been based on an idea that we don’t see difference, that we just see a human being,” she says.
“Except we also celebrate diversity and diversity is difference,” she adds.
“So we have to find cordial and good ways of acknowledging it. This sort of opens social space by talking about it.”
