Canadian Employment Law Today

Much ado about the washroom What are a transgender person's rights regarding washroom, dormitory, changing room and locker access? BY SAFINA LAKHANI I n past years, we have seen increasing discourse about the human rights of transgender people in our communi- ties and institutions. is discourse has led to progress in the law and changes in the policies of many institutions. One contentious issue of particular inter- est to employers: Policies on gender-neutral washrooms and change rooms. ere has been positive change on this issue, such as the efforts of Jesse ompson, a transgen - der teenage boy who filed a human rights complaint against Hockey Canada seeking permission to use the boys' change room at hockey arenas. In response, Hockey Canada changed its policies to state that "players who identify as trans can use the dressing room corresponding to their gender iden - tity..." Hockey Canada's transgender inclu- siveness policies came into effect during the current hockey season. In addition, school boards such as Ontario's Peel District School Board and various universities have made policy changes to provide greater ac - cess to gender-neutral washrooms. ere have, however, been reports of ad- verse results when organizations have acted to revise their washroom access policies. In late 2015, for example, women showering in a gender-neutral bathroom at a residence at the University of Toronto reported attempts to record them on cellphone cameras while showering. In response, the University re - vised its policy on gender-neutral bathrooms so that some bathrooms in residences would be separated by gender for people who iden- tify as men and women, respectively. ere reportedly also remained at least one gen- der-neutral bathroom per floor. Incidents such as this highlight the ten- sion that is inherent in enforcing human rights. ere are competing rights and obli- gations in any community or institution that must be balanced to ensure that the human rights and safety of all stakeholders is taken into consideration. Employers will doubt - lessly face competing interests with respect to this and other issues, and must operate pursuant to policies that account for these competing rights. Expanded recognition of rights for transgender employees Although transgender people have long been protected under human rights leg- islation, it was only in 2012 that the On- tario legislature passed Toby's Act, 2012, amending the province's Human Rights Code to recognize "gender identity" and "gender expression" as protected grounds. Before that time, the human rights of transgendered people were addressed un- der the code in protections against sexual discrimination. In 2014, the Ontario Human Rights Com- mission issued its Policy on Preventing Dis- crimination because of Gender Identity and Gender Expression. is policy sheds light on a number of issues and helpfully includes definitions for gender identity and gender expression. Under the policy: • Gender identity is each person's inter - nal and individual experience of gen- der. 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 a person's sexual orientation. • Gender expression is how a person publicly presents their gender. is can include behaviour and outward appear - ance such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun are also common ways of expressing gender. Vanderputten v. Seydaco Packaging Corp., is one of the few cases where the On - tario Human Rights Tribunal comments on a transgender employee's rights in the work- place. In Seydaco, an employee undergoing a gender transition complained that she was harassed, subjected to a poisoned work en- vironment, and discriminated against be- cause of her sex. Among the employee's complaints was the employer's insistence that she be treated in the same manner as men until her gender transition was fully complete. is treat - ment included the employer's requirement that the applicant use the men's change room, despite her complaints to manage- ment that it led to harassment and making it clear that she did not want to use the men's change room. Note that this application was filed before Toby's Act, but decided after. e adjudicator found that "the insistence that a person be treated in accordance with the gender assigned at birth for all employ - ment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity." e adjudicator went on to hold that it is also discrimination to insist that a transgender person have gender reassignment surgery to be treated in accordance with his or her gender identity. Accommodation of transgender workers While the rights of transgender people in the workplace have become a prominent labour and employment law topic in re- cent years, the analysis regarding work- place accommodations for the protected grounds of gender identity and gender expression remain largely the same. Fail- ure to recognize and respect a person's lived gender identity, or to accommodate gender transition-related needs may lead to a finding of discrimination under the code. Employers are required to accommodate transgender employees to the point of un- due hardship, bearing in mind health and safety, cost, and outside sources of fund- ing. Workers also have obligations to co- operate with employers, accept reasonable accommodations — even if they are im- perfect or not ideal — and facilitate their implementation. Washroom, dormitory, changing room and locker access A transgender person has the right to ac- cess washrooms, change rooms, dormi- tories, lockers and other gender-specific services and facilities based on their lived gender identity. is entitlement extends to people who are in the process of gen- der transition, regardless of the stage of transition. e person is entitled to select the bathroom that most closely aligns DESPITE LEGISLATIVE changes and the increasing public awareness of the rights of transgendered people, a recent Ontario public service survey found that individuals who identify as transgender still report among the highest rates of harassment and discrimination of any demographic group. The Ontario Human Rights Tribunal (HRTO) has also recognized that transgender people have historically been a disadvantaged group. Employment lawyer Safina Lakhani discussees how employers can make workplaces safer for transgender employees. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: HUMAN RIGHTS

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