Supporting Transgender People in the Workplace

By: Melissa Luhtanen

This blog article originally appeared in LawNow Vol. 41(3), 2017 and is reprinted with permission.

The Alberta Human Rights Act (Act), RSA 2000, c. A-25.5, protects people from discrimination in employment based on gender identity and gender expression under section 7 of the AHR Act:

7 (1) No employer shall

(a) refuse to employ or refuse to continue to employ any person, or

(b) discriminate against any person with regard to employment or any term or condition of employment,

because of the …gender identity, gender expression … of that person or of any other person.

For a transgender person who is coming out within the workplace, there will come a time where colleagues and staff need to be informed or find out. What are the responsibilities of employers regarding gender identity in the workplace? While there is no definition of “gender identity” in the Act, it is generally understood to include transgender and transsexual people, and may over time develop in law to include non-binary genders. The Alberta Human Rights Commission has indeed accepted complaints from transgender people for a number of years under the ground of “gender,” but it was in 2015 that the Alberta Human Rights Amendment Act (Bill 7) officially added in the words “gender identity” to protect transgender people. Alberta Hansard, December 1, 2015 includes a good explanation and one definition that may be useful in understanding what these terms mean:

The key to understanding what transgender means is understanding the difference between sex and gender. Sex refers to the physical characteristics that are associated with being male or female, including primary sex characteristics such as genitals and secondary sex characteristics such as breasts. Gender refers to the social presentation of masculinity and femininity. Many cultures have strict rules about how to perform masculinity and femininity. Rigid masculine and feminine gender roles are referred to as the gender binary. However, ideas about gender are not static. They change across time and place, within one society, and between different cultures.

Some workplaces are incorporating unisex washrooms or single stall washrooms that address not only the need for gender-neutral spaces, but also accessibility and privacy. Transgender individuals do not identify with the sex that they were assigned at birth and present their gender in a way that reflects their true selves. Some transgender persons choose to have gender-affirming surgery so that their physical characteristics reflect their gender identity, and some do not. Gender identity does not relate to sexual orientation. Transgender and gender-variant people may identify as straight, gay, lesbian, bisexual, pansexual, or any other sexual orientation.

Under the Act, transgender people are protected from discrimination and harassment, not only in employment, but also in publications, services, tenancy, and unions. Employers must protect against discrimination and harassment based on gender identity. For instance, an employer may provide an education session to its employees to ensure that there is no discrimination or harassment on any ground, including for a transgender person who is coming out. Supervisors should be made aware that hiring and promotions should not take gender identity into account. An employer must also accept and properly investigate complaints from a transgender employee that his/her human rights have been violated. If the employer finds that there has been harassment or some other form of discrimination in the workplace, it should take appropriate steps to remedy the discrimination, such as reprimanding or suspending the offender, or changing a discriminatory policy.

Employers may want to review their own human rights policies to update them and include the new grounds of gender identity and gender expression, as well as the other 13 grounds (i.e., sexual orientation, race, etc.) that are in the Act. However, even if an employer’s own policy does not include gender identity or any other ground, an employer, in Alberta, is still legally bound by the provisions of the Act.

…a transgender person who needs time-off work for medical reasons, such as surgery or recovery from surgery should be treated the same as any other employee needing accommodation for a medical issue. For instance, a transgender person who needs time-off work for medical reasons, such as surgery or recovery from surgery should be treated the same as any other employee needing accommodation for a medical issue. Sometimes, accommodating an employee will involve increased costs to the employer. The employer has a duty to accommodate an employee to the point of “undue hardship”. The Alberta Human Rights Commission has more information on the general duty to accommodate on its website: www.albertahumanrights.ab.ca. [1] (“Employment: Duty to Accommodate” Online: Alberta Human Rights Commission)

Employees also have duties regarding accommodation, such as:

• informing the employer of the need for an accommodation;
• a doctor’s note for medical issues;
• discussing potential accommodations that would work for both the employer and employee; and
• keeping the employer informed of accommodations that are not working.

Revealing gender identity to other employees

For a transgender person who is coming out within the workplace, there will come a time where colleagues and staff need to be informed or find out. Involving the transgender employee in a discussion of how to do this respectfully and effectively is the best way to address this process. The employer must be cautious not to release medical information or private information to general employees or others who do not need to know this information. Many transgender people have successfully come out at work, and continued to stay in the same workplace.

Employers must protect against discrimination and harassment based on gender identity. A transgender person has no obligation to reveal to the employer that they are considering coming out. Once the employee begins to make plans, such as having surgeries that will involve absences from work, the employee must then inform the employer of a need for accommodation. Both employer and employee are wise to get medical documentation to support any needed medical leaves of absence. Coming out as a transgender man or woman involves many emotional and physical stages. An employee who does not share private information with an employer immediately is not being untruthful, but is simply protecting his or her privacy until the need arises to have an honest discussion or request an accommodation.

Bathrooms in the workplace

It is not only a legal responsibility, but also a respectful practice to protect employees’ rights to privacy. A transgender employee will use the bathroom that corresponds with his or her identified gender. There have been some cases (see: Ferris v Office and Technical Employees Union, Local 15, [1999] BCHRTD No 55. Sheridan v Sanctuary Investments Ltd, [1999] BCHRTD No 43), that have addressed the use of gendered washrooms. These cases have notably said that using the appropriate washroom is “significant” in the identity of a transgender person. Refusing to protect an employee’s rights regarding the use of a washroom that matches his/her gender identity has been found to be discriminatory.

Some workplaces are incorporating unisex washrooms or single stall washrooms that address not only the need for gender-neutral spaces, but also accessibility and privacy. For instance, employers can design a bathroom that has a series of single-stall washrooms, each with floor to ceiling walls, and a common gender-neutral sink area.

Respecting employee privacy

The key to understanding what transgender means is understanding the difference between sex and gender. It is not only a legal responsibility, but also a respectful practice to protect employees’ rights to privacy. This will mean keeping the gender that is marked on an employee’s identity documents private if it does not match the person’s presenting identity (i.e., when the person’s documents say male, but she is female and presenting as such in the workplace). Other documents may also reveal a person’s gender, such as police record checks and other background checks.

There are some very real hurdles involved in amending one’s gender on identity documents. These are beyond the scope of this article, but more information can be found under sections 16.1 to 16.5 of the Vital Statistics Information Regulation, AR 3/2012. Protecting the privacy of a transgender employee by not revealing the gender shown on incorrect documents promotes a positive work environment, recognizes that the law is evolving and acknowledges that it takes time to amend identity documents.

While the law is still developing in the area of human rights and transgender status, employers will be well positioned for the future when they work to combat discrimination and harassment against any and all employees.

Amended version based upon the original tri-fold: Employer’s Guide: Transgender people in the workplace, Alberta Civil Liberties Research Centre.