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Recent developments: Gender identity and gender expression proposed legislation

gender identity and gender expressionTwo recent initiatives include the Yukon legislature introducing Bill 5, Act to Amend the Human Rights Act and the Vital Statistics Act (2017), and also the federal C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code. Both have the goal of creating new prohibited grounds of discrimination and harassment concerning gender identity and gender expression.

Bill 5 was introduced into the Yukon legislature on April 25, 2017, and has recently received second reading May 16, 2017. Essentially, two things would be changed: firstly, gender expression and gender identity would be added as prohibited grounds of discrimination in the Human Rights Act; secondly, the Vital Statistics Act and Regulations would be amended to permit a change of sex on a person’s registration of births (regardless of whether the person had sex reassignment surgery), and allow for a person’s sex to be recorded as something other than male or female. Bill 5 would come into force on the date it receives Royal Assent (with the exception of section 4, which would come into force on a day to be fixed by the Commissioner in Executive Council).

In addition, Bill C-16 was first introduced into the House of Comments May 17, 2016. After passing to the Senate November 22, 2016, it then received second reading and was sent to the Committee on Legal and Constitutional Affairs on March 2, 2017. At this point, the Committee recently presented a report on May 18, 2017.

Under Bill C-16, the Canadian Human Rights Act would be amended to include gender identity or expression as prohibited grounds of discrimination. Furthermore, the Criminal Code would be amended to change the definition of “identifiable group” to add gender identity or expression to the list in order to prevent the commission of hate crimes. The changes would come into force on Royal Assent.

Bill C-16 is not the first instance of the introducing this type of legislation into Parliament. In fact, there were two previous unsuccessful attempts with private members’ Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), during the 41st Parliament, 2nd Session, and the 41st Parliament, 1st Session.

Presently, we are in the 42nd Parliament, 1st Session, with the similar Bill C-16 sponsored by the Minister of Justice.

The Yukon and the federally regulated jurisdiction would be joining the following jurisdictions that already have in place human rights legislation with prohibited grounds of discrimination and harassment of gender identity and gender expression: Alberta; British Columbia; Manitoba (gender identity only); New Brunswick; Newfoundland and Labrador; Northwest Territories (gender identity only); Nova Scotia; Ontario; Prince Edward Island; Québec; and Saskatchewan (gender identity only).

What does this mean for employers?

Having this type of legislation in your jurisdiction means that employers operating in that particular jurisdiction cannot refuse to employ or refuse to continue to employ any person, or discriminate against any person with regard to employment or any term or condition of employment, because of a person’s gender identity or gender expression.

Practically speaking, employers must remember that they will be responsible for discriminatory comments their employees make on their own in the workplace context, or at the employer’s request and they must make themselves and their employees aware of discrimination and human rights responsibilities based on gender identity and gender expression.

It is important to become informed: start with the basic distinction between the terms. Gender identity includes one’s internal, personal sense of being a man or a woman (or a boy or a girl). For transgender people, their birth-assigned sex and their own internal sense of gender identity do not match. Gender expression is an external manifestation of one’s gender identity, usually expressed through “masculine”, “feminine” or gender-variant behaviour, clothing, hairstyle, voice or body characteristics. Typically, transgender people seek to make their gender expression match their gender identity rather than their birth-assigned sex.

It is recommended that organizations learn about the needs of trans people, look for barriers, develop or modify policies and procedures, and undertake training. This will help make sure trans people and other gender non-conforming individuals are treated with dignity and respect and enjoy equal rights and freedom from discrimination.

For more information regarding best practices in dealing with this prohibited ground of discrimination, please visit the Ontario Human Rights Commission’s policy on preventing discrimination because of gender identity and gender expression. More specifically, Appendix C outlines various best practices concerning privacy and confidentiality, identification documents and records, collecting data on sex and gender, dress codes, washrooms and change facilities, and making guidelines and accommodation plans.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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