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Gender identity and expression

Gender identity and expression
By Sara Forte

British Columbia amended its Human Rights Code in July 2016 to add “gender identity and expression” as a protected ground. This means that, in B.C., it is now prohibited to discriminate in areas including employment based on a person’s gender identity or gender expression. Neither gender identity nor gender expression are defined in the B.C. code, so employers, and counsel to those employers, need to look outside the code for assistance in interpreting these terms.

B.C. Human Rights Tribunal guidance
A great starting place is the British Columbia Human Rights Tribunal website, which provides suggested definitions for these terms. While these definitions are not law, they are useful in understanding the scope of these new protections.

Gender expression is how a person presents their gender. This can include behaviour and appearance, including dress, hair, makeup, body language and voice. This can also include name and pronoun, such as he, she or they. How a person presents their gender may not necessarily reflect their gender identity.

Gender identity is a person’s sense of themselves as male, female, both, in between or neither. It includes people who identify as transgender. Gender identity may be different or the same as the sex a person is assigned at birth.

These definitions create concern for many employers and counsel to employers due to the potential breadth of their scope and application.  

Ontario Human Rights Tribunal guidance
The B.C. code amendment is too new to have generated any substantial jurisprudence, but we can look to other jurisdictions, including Ontario, in including gender identity and expression as protected grounds.

In Browne v. Sudbury Nickel Operations, 2016 HRTO 62, the Human Rights Tribunal of Ontario considered the human rights complaint of a cis-gendered male (born male and identifies as male), who challenged the employer’s clean-shaven policy as discriminating against him on the basis of sex and gender expression. The complainant was an equipment operator who was required to be clean-shaven to ensure fit of a respirator mask. The complainant had worn a beard for several years, and he argued that his beard was part of the expression of his gender.  
The Human Rights Tribunal took a purposive approach to applying gender identity protection, in which employers and employer counsel in B.C. can take some comfort. The tribunal noted that the protection had been put in place to protect the rights of transgendered and gender-non-conforming persons, who experienced “severe social, economic and historical disadvantage.” The tribunal noted that there was no evidence that bearded men suffered from similar disadvantage and found that the broad interpretation of gender expression that would be needed in this case would “do violence to the important and fundamental purposes” of the legislation. This finding that a broad interpretation is not appropriate runs contrary to the general rule that human rights protections should be interpreted liberally, due to the rights-conferring nature of the legislation. The complaint was dismissed as having no reasonable prospect of success.

Tips for employers and employer counsel
B.C.-based employers and their counsel can breathe a sigh of relief after reading Browne, as this decision could be relied to suggest a similarly purposive interpretation of gender expression is appropriate in B.C. A proactive approach to compliance with the amended legislation is recommended and could help to avoid complaints. Steps that employers should consider include:

1. Update any anti-discrimination policies to add reference to gender identity and expression as prohibited grounds;
2. Educate employees and management about these new grounds;
3. Review policies that may touch on gender identity and expression, including dress codes;
4. Consider gendered washroom access issues.

It will be interesting to track the jurisprudence on gender identity and expression as it unfolds in B.C. In the meantime, a proactive approach can help avoid your organization being faced with a human rights complaint on these grounds.

Sara Forte advises both employers and employees on all aspects of employment law and workplace human rights through Forte Law Corporation in Surrey, B.C.

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