Across Canada, there is a trend in human rights law to increase protections for transgendered individuals.
On March 20, 2013, Bill C-279 to protect the right of the transgendered and make it illegal to discriminate against transgender Canadians under the Canadian Human Rights Act passed third reading in the House of Commons (149-137 vote).
The Bill will now go to the Senate for review and will need to receive Royal Assent before it becomes law. Once enacted, the Bill will come into force 30 days after Royal Assent and will amend the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination.
It will also amend the Criminal Code to include gender identity as a “distinguishing characteristic” that is protected and also need to be taken into account at time of sentencing.
We previously wrote about Bill C-279 on Slaw here
What is important to note, in the final version of Bill C-279, a definition for “gender identity” was included. “Gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.
In addition, gender expression as a prohibited ground was removed.
In 2012, Ontario, Manitoba and Nova Scotia joined the Northwest Territories in expressly including “gender identity” as a prohibited ground of discrimination under their human rights legislation to protect transgendered persons from discrimination. Ontario and Nova Scotia also included “gender expression” as a prohibited ground.
As stated by Alison Bird, Lawyer at Cox & Palmer,
It is important for employers to understand and comply with their legal obligations with respect to gender identity. In those jurisdictions where human rights legislation expressly includes gender identity as a prohibited ground, employers clearly have a legal obligation to not discriminate against transgendered persons, including the duty to accommodate to the point of undue hardship. Even in jurisdictions where there is not yet any express protection for gender identity or gender expression, employers should be aware that several provincial human rights tribunals have found that gender identity is protected from discrimination under the ground of sex. Accordingly, all Canadian employers should provide a non-discriminatory environment for transgendered persons.
Employers should review their current policies and practices to ensure that they do not discriminate against transgendered persons. Some of the key areas to consider are dress codes, access to washroom or changing facilities, and the availability of leave for treatment related to gender identity. Employers should also exercise thoughtfulness and sensitivity in the use of pronouns.
