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No skirting around the issue: Gender identity and sexual orientation discrimination appear to be on the rise

In 2012, the Ontario Human Rights Code was amended to recognize the grounds of gender identity and gender expression, seeking to protect a historically disadvantaged group of individuals from discrimination.[1] In some jurisdictions these changes took longer to be implemented than others, but for the most part (either implicitly or explicitly), the concepts of gender identity and gender expression are now recognized in human rights legislation across Canada. Discrimination on the basis of sexual orientation has been expressly prohibited by the Ontario Human Rights Code since 1986.

Enshrining protected grounds in legislation does not, unfortunately, have the effect of immediately eradicating discrimination on the basis of those grounds. However, it does send a clear message to all people who live and work in Canada that individuals who identify with these protected groups exist and that discrimination against them will not be tolerated.

As a result, it is shocking to learn that, even many years after our applicable human rights laws were amended, there are still people in Canada who question whether the very concepts of gender identity and gender expression are legitimate and, further, whether people in the LGBTQ+ community are deserving of protection. Unfortunately, our news feeds have been inundated in the last several months with incidents that appear to indicate this remains a live issue, when it should be anything but.

Earlier this year, the government of Ontario scrapped the modernized sex-ed curriculum that had been introduced by the previous Liberal government, citing insufficient consultation with parents on the topics contained therein. Among those topics were things like online bullying, sexting, consent and masturbation, intended to bring the curriculum in line with relevant issues facing students in 2018. However, it also introduced discussions regarding same-sex relationships and gender identity into the curriculum. As a result, the decision of the Conservative government to scrap the modernized curriculum was a major blow to LGBTQ+ individuals, including many students.

Unfortunately, circumstances in Ontario deteriorated further when, in November, the Progressive Conservative party passed a policy resolution which described “gender identity theory” as “a highly controversial, unscientific, ‘liberal ideology” and directed that it be removed from Ontario’s schools and curriculum. Although Premier Doug Ford later confirmed that the Ontario government would not move forward with the policy, the fact that such a transphobic policy had been passed at all in 2018 demonstrated to many people a sizeable gap in education and awareness on issues of gender identity.

Ontario is not alone in struggling with these issues. In Alberta, a lesbian couple recently filed an application with the Alberta Human Rights Commission alleging that they had been forced out of their jobs for being “too gay”. The couple, Sheri and Alyssa Monk, claim that they were told to stop talking about their personal lives at work because there were some people who would “never accept same-sex marriage and are offended by the use of the word wife”. The restriction, which was not imposed on any of the heterosexual couples working for Emergency Services in the small town of Pincher Creek, arose after a number of co-workers apparently complained about the Monks’ “public displays of affection”, use of the word “babe” in reference to each other, comments about “how much they love each other” and their general openness about their relationship in the workplace. We note that the Emergency Services Department has denied the allegations, and no decision has been rendered in the case at this time.

Unfortunately, that was only one of a spate of alarming news stories in recent weeks about open and unabashed discrimination against the LGBTQ+ community. In Minnesota, a transgender student using the toilet was forcibly removed from the washroom by a barrage of teachers, both male and female. Despite the student filming the interaction, which has been viewed on social media more than 300,000 times, the principal and school board are standing by their employees’ actions, saying that the video ‘misrepresented the incident.’

The facts of these cases, even if partially true, suggest a serious lack of awareness of human rights. Regardless of one’s own personal beliefs, you cannot discriminate against someone because they are gay or gender non-conforming. According to at least one former co-worker of the Monks, it was common for colleagues in Emergency Services to talk about their personal lives and relationships at work, and it had never been an issue previously. However, co-workers felt that Sheri and Alyssa engaging in the same behaviour was “offensive”. As a result, the Department, allegedly, attempted to place restrictions on that behaviour which applied exclusively to the Monks. This is the epitome of discrimination and it is, sadly, not uncommon.

All employees have a right to be free from unlawful discrimination in the workplace. Employers have an obligation to educate themselves, and their staff, about human rights legislation and to address issues of discriminatory conduct head on. Sheri and Alyssa Monk say they appealed to their manager, and their manager’s direct boss, Chief David Cox, for help in clarifying the rules and providing diversity training in the workplace, but to no avail.

Employers who fail to take action when there are complaints of unlawful discrimination in the workplace are exposing themselves to serious potential liability, both from a financial and a reputational perspective. More importantly, they are harming individuals in groups that have traditionally been disadvantaged and are deserving of protection. Ignoring the issue will not make it go away – but it can make the situation much worse.

By Brittany A. Taylor

[1] Although gender identity and gender expression were only added to the Ontario Human Rights Code in 2012, transgender or gender non-conforming individuals previously had a right to be free from discrimination under the broadly defined ground of “sex”.

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Rudner Law, Employment / HR Law & Mediation

Employment Lawyers and Mediators at Rudner Law
Rudner Law is a firm specializing in Canadian Employment Law. They provide clients with strategic advice regarding all aspects of the employment relationship, negotiate and advocate on their behalf and represent them before courts, mediators and tribunals. Blog posts are written by Stuart Rudner, the principal and founder of Rudner Law, Brittany Taylor, a Senior Associate at Rudner Law, Nadia Zaman, an Associate at Rudner Law and Anique Dublin, a Law Clerk at Rudner Law. Read more
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