Awareness increasing on transgender rights


Jessica Koper Head Shot

Canadian jurisdictions have taken a proactive approach to transgender rights in recent years, Windsor employment lawyer Jessica Koper tells

Koper, an associate with Shibley Righton LLP, says the federal government recently made up lost ground on most provinces when Parliament passed Bill C-16, which added the terms “gender identity” and “gender expression” to the list of prohibited grounds of discrimination under the Canadian Human Rights Act (CHRA).

The language of the law mirrored provisions added to Ontario's Human Rights Code (HRC) as far back as 2012, she explains. In addition to the CHRA changes, the federal bill also amended the Criminal Code to ensure crimes motivated by a victim's gender identity or gender expression qualify as hate crimes.

“There has been a big movement in terms of transgender rights and protections, and I would describe the changes as more proactive than reactive,” Koper says. “There haven’t been many lawsuits in this area, but there has been a great deal of awareness raised along with policy changes.”

The CHRA first passed in 1977 under then-prime minister Pierre Trudeau's government, protecting Canadians from discrimination on the basis of sexual orientation. Canada later became one of the first countries in the world to legalize same-sex marriage in 2005 when the Civil Marriage Act passed both houses of Parliament during the government led by former prime minister Paul Martin.

“Today the tradition continues,” Justice Minister Jody Wilson-Raybould said in a statement following the introduction of Bill C-16.

“Diversity and inclusion have long been among the values that Canadians embrace, and Canadians expect their government to reflect these values,” she added.

Koper says employers in Ontario should familiarize themselves with the province’s HRC and develop policies that match its requirements.

For example, she says the law provides individual employees with the right to be called by the pronoun and wear required uniforms that match the gender they identify with.

“The provincial government no longer collects information on sex, but according to gender identity,” Koper says. “Employers should follow suit by giving employees the option to identify as male, female, transgender or declining to disclose if they prefer.”

Employers who allow discriminatory behaviour to occur in the workplace are exposing themselves to risk, according to Koper.

“If they are aware, or ought to be, of any bullying or harassment, employers have an obligation to address it, investigate it, and promote a positive environment in that regard,” she says. “Otherwise, they could be on the hook for failing to react to a poisoned workplace environment.”

Even during the hiring process, she says employers should avoid making assumptions about the gender identity or gender expression of candidates.

“Comments made during interviews could lead to possible claims of discrimination, even if they were not intended in that way,” Koper says.

Much of the public attention regarding the rights of transgender people relates to bathroom use, and Koper says it remains a flashpoint.

In 2012, the Human Rights Tribunal of Ontario ruled in favour of a packaging plant employee who transitioned from male to female during her time at the company.

The woman’s manager had told her she would need to provide medical evidence that she was female before she was allowed to use the female bathroom, but the adjudicator found that the stance violated her rights and that employers cannot insist on treating employees according to his or her birth gender.

“If there are separate bathrooms designated for each sex, individuals should be able to use the one they identify with from a gender perspective,” Koper says.


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