Transgender people are being more vocal and more public with their experiences and the number of trans-related cases before Canadian courts and tribunals is increasing, so what does HR need to know?
In 2012 Ontario amended its Human Rights Code to add protection against discrimination based on gender identity and expression. The Senate is currently reviewed proposed law changes that would will criminalize gender identity hate crimes and outlaw discrimination at a federal level.
Even in provinces without specific gender identity protection, most jurisdictions have included gender identity discrimination in the protected trait of sex. When the Alberta Human Rights Tribunal denied a claim from a transgender teacher on the grounds that gender identity is not specifically protected, the Court of Queen’s Bench overturned the decision, requiring the tribunal to hear the case.
So what should HR do if an employee who has previously presented to work as one gender asks for support in transitioning to another?
Employment and labour lawyer Gita Anand, who specializes in human rights law, says the first thing to do is collaborate with the employee to make a plan. Ask them what they need and what their plans are. She suggests if possible the employee should take a short break from work after the first announcement to give people a few days to adjust.
“The HR person and the transitioning employee should write a communication to be delivered prior to a weekend saying ‘Jack will be transitioning from male to female. After a one week vacation Jack will return as Jill and will be using the woman’s washroom,’ “ Anand says.
An important note for HR professionals is that Canadian law prohibits employers from asking employees to prove their gender.
Your other employees will likely have many questions, but the employee involved should not be expected to answer them. Contact your EAP provider for suggestions of local experts who can come in and hold an educational seminar for employees and managers.
On page two: education, pronouns and benefits
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The seminar should emphasize that this is an ordinary process that people all over the world go through. It can also be an opportunity to re-iterate the company’s bullying and harassment policies. It is important to take action against any employees that demonstrate harassing behaviour. Beyond showing support for your transgender employee, this type of incident can also result in the company being found liable for failing to protect its employees.
“Next, clarify issues that would cause the most anxiety such as using the right pronouns,” says Anand, who is currently the National Practice Chair of Miller Thomson’s Labour and Employment Specialty Group, and the Chair of the National Diversity Committee. . “It can take a while for people to start adopting the language.”
Finally, understand what your benefit programs cover and don’t cover so you can help your employee navigate their options.
“Some transgender medical needs are not covered by [provincial health insurance], and what you want to do, legal issues aside, is treat transgender people with dignity and fairness,” Anand says.
For a glossary of common terms when discussing transgender issues, visit
The National Center for Transgender Equality.
