The recent well-publicized transgender celebrities, and Emmy wins for the Amazon show Transparent, have put gender identity, gender expression, transsexual and transgender issues on the social and political agenda. Most employers should already have general anti-discrimination, anti-harassment and accommodation policies recognizing protected human rights grounds. So if an employer doesn’t have a transsexual or transgender employee, how important is it to have a specific policy dealing with transsexual, transgender, gender identity and gender expression? For some employers, it may be essential.
Currently Alberta, Manitoba, Saskatchewan, Ontario, Newfoundland and Labrador, Nova Scotia, Prince Edward Island all specifically protect gender expression or gender identity or both in their human rights legislation. In addition, the British Columbia Human Rights Tribunal has recognized discrimination against a “trans” person as discrimination on the basis of sex in a 2015 decision Dawson v. Vancouver Police Board, a decision which suggests that most human rights tribunals would recognize gender identity and gender expression as protected grounds, even if not expressly included as such in the applicable legislation.
Employers should remember that they have obligations to ensure that no one in the organization is subject to discrimination on the basis of gender identity or gender expression; an obligation to employees, but also one which also extends to customers and clients. So employers must ensure that not only are employees free from such discrimination and accommodated where necessary, but also that clients, customers and others who come into contact with the organization are free from discrimination, treated with respect and accommodated where necessary. A gender identity, gender expression, transsexual and transgender policy, together with adequate education and training of employees, would be useful in this regard.
Employers should ensure that any education or training provided to employees is done in partnership with LGBTQ experts. The transgender process is complicated and different for every person, making generalizations of limited use and stereotypes downright harmful.
Employers must also ensure that its policies and procedures do not discriminate, even indirectly, against those who are transsexual or transgender. This may include very practical decisions regarding washroom or changeroom facilities to assessing how seemingly neutral policies, such as dress code policies, may affect those who are transsexual or transgender.
Employers should review extended health and dental benefits to determine if someone undergoing sex reassignment procedures would be covered for medications or other procedures. A specific exclusion may be discriminatory.
An employee undergoing the transgender process may require accommodation on many fronts, including additional time off or flexible scheduling for medical or surgical procedures and accommodation of post-operative procedures, or modification of employee records to update an employee’s name or photograph.
Even more important for employers, however, is to have a strategy to communicate with employees if one of their co-workers is transsexual, transgender or somewhere in the transgender process. At some point, some communication with co-workers may be necessary, otherwise gossip and harassment may take over, however it is important that an employer let the trans employee decide if, when and how much to disclose to others, and maintain an employee’s confidence until that time.
For assistance with this issue, employers may wish consult some of the resources identified on the PFLAG website.
Look for a future chapter and sample policy on Accommodation on the Basis of Gender Expression and Gender Identity in the Human Resources PolicyPro published by First Reference.