Does your workplace have gender-neutral washrooms? Does your workplace have a dress code that  accommodates all forms of gender expression? These are just two of the questions raised by the Ontario Human Rights Commission’s (“OHRC”) Policy on Preventing Discrimination because of Gender Identity and Gender Expression (the “Policy”). In last week’s post, we introduced the Policy: Click Here.

Part 2: Gender Identity, Gender Expression and the Workplace – Preventing Discrimination

Gender identity refers to an individual’s personal understanding of their gender, which may be similar or different to the ‘sex’ they were assigned at birth. Gender expression refers to the ways in which individuals present their gender to others, which may also be contrary to the gender they were assigned at birth.

One may express their gender by using non-gender specific pronouns, undergoing medical procedures,  taking medical prescriptions to alter the presentation of their gender or dressing in a way that is either contrary to their assigned sex or simply evades any kind of categorization as male or female. Individuals that express their gender, or have a gender identity that does not mirror the sex they were assigned at birth, are often referred to as ‘trans’ or ‘transgender.’

To help prevent discrimination in the workplace, the OHRC identifies some of the most common ways in which transgender people face discrimination and highlights what employers can do about discrimination:

  • Employees who are ‘transitioning’ – which may involve medical procedures in order to transition from one form of gender expression to another – must be accommodated during that process.
  • Employers must recognize the lived gender identity of their employees by using their preferred pronoun (he/she/they) and name.
  • Employers must allow transgender individuals to use the washroom that conforms to their personal gender identity.
  • Dress code policies must accommodate all forms of gender expression. Employers cannot require employees to dress in a way that is contrary to their gender identity.
  • Employers must have a valid reason for collecting and using personal information that identifies an individual’s gender, and this information should be kept confidential as it may require an employee to provide highly personal information about their assigned sex, which may be different from their gender identity and expression.

Gender identity and gender expression may at first be confusing because society is so accustomed to understanding ‘sex’ as being an inherent, binary characteristic. These policies provide guidelines to help employers ensure that this understanding of ‘sex’ and ‘gender’ changes in order to accommodate transgender individuals in the workplace.

Next week: Part 3 in this series- Challenges that Employers might face.

Written with the assistance of Andrew Nicholl, articling student.

Leave a Reply

Your email address will not be published. Required fields are marked *