Workplaces must be inclusive, respectful, and welcoming to trans people. Trans people are employees, employers, clients, and customers, and for many people working to create trans-inclusive workplaces, they are also our friends, partners, and family members.

In the dominant culture, sex and gender are assumed to align in certain ways. The assumption is that if you are assigned female at birth, you are a girl or a woman, and if you are assigned male at birth, you are a boy or a man. People whose sex assigned at birth aligns in this socially normative way with their gender identity are referred to as “cisgender,” or “cis” for short. Cis is a Latin prefix that means “on the same side.”

People whose sex assigned at birth does not align in this socially normative way with their gender identity are referred to as “transgender,” or more commonly as “trans.” “Trans” is a Latin prefix that means “on the other side” or “across.”

A trans woman is a woman who was assigned male at birth. A trans man is a man who was assigned female at birth. A person whose gender identity is both, neither, or something in between the binary of “man” and “woman” may refer to themselves as “non-binary,” “bigender,” “genderqueer,” or “gender fluid.”

“Trans” is used by some people as an umbrella term, containing other more specific terms. For example, some intersex and non-binary people consider themselves to fall under the trans umbrella, and some don’t. Some Two-Spirit people consider themselves to fall under the trans umbrella, while some recognize Two-Spirit as a distinct identity. Two-Spirit is a term that is exclusively used to refer to Indigenous people with identities and social roles that transcend the man/woman binary.[1]

Trans people face many issues related to employment, including unemployment and poverty, misgendering, access to washrooms, violence, and the impact of all of these issues on mental health.

Unemployment

Many trans people face discrimination in employment and disproportionately high levels of unemployment. A Time magazine article reported that trans people are four times more likely than the general population to report living in extreme poverty.[2]

In 2015, the Trans PULSE Project reported that, among trans Ontarians, 13% had been fired explicitly for being trans, and another 15% suspected they were fired for being trans. As well, 18% were turned down for a job explicitly because they were trans, and another 32% suspected this was why they were turned down. Finally, 17% declined a job they had applied for and were offered due to the lack of a trans-positive and safe work environment.[3]

Applying for jobs is made difficult as many trans people are unable to obtain past employment references or academic transcripts with their current name and pronoun. This forces trans people to choose to either out themselves in job applications, or be unable to rely on their job histories to strengthen their applications.[4] 

Misgendering

Pronouns are a way that all people express their gender identity. Employers and employees are obligated to recognize a person’s gender identity and use their correct pronouns.

An Ontario human rights tribunal found that “misgendering” in the form of using men’s pronouns (he/him/his) to refer to a trans woman constituted human rights discrimination.[5]

Access to washrooms

Washrooms are a significant issue for many trans people, and can be dangerous spaces. Trans people have been wrongly accused of predatory behaviour and have reported being attacked for being perceived to be in the “wrong washroom.”

In 2014, the Province of Nova Scotia released its Guidelines for Supporting Transgender and Gender-nonconforming Students, which provides that:

All students have a right to safe washroom and change-room facilities. They have the right to use facilities that they are comfortable using and that correspond to their gender identity, regardless of their sex assigned at birth.[6]

Trans people must be able to use the washroom that corresponds with their gender identity. Gender-neutral washrooms should also be available for non-binary people and trans people who feel uncomfortable or unsafe using gendered washrooms. Some workplaces have made all of their washrooms gender-neutral, so that trans people don’t feel singled out by being the only people using gender-neutral facilities.

Violence

Trans people face high rates of violence, and are assaulted and murdered by strangers and people known to them. Due to the intersecting forms of oppression they face, trans women of colour experience vastly disproportionate levels of violence.[7]

The Trans PULSE Project found that experiences of discrimination and violence had strong adverse impacts on trans people’s mental health.[8]

Creating safe, welcoming workplaces – A legal obligation

Creating safe, inclusive, respectful, and welcoming workplaces for trans people can improve trans people’s well-being, and is required by human rights legislation.

Among other things, the Nova Scotia Human Rights Act protects against discrimination in employment, in the provision of or access to services or facilities, and related to membership in a professional association, business or trade association, employers’ organization or employees’ organization on the basis of sex, gender identity, and gender expression.[9]

Sex refers to physical characteristics, including chromosomes, reproductive organs, and secondary sex characteristics. Gender identity refers to a person’s sense of themselves as a woman, man, both, neither, or something in between. Gender expression refers to how people express their gender through characteristics, aesthetics, and social behaviours.

These provisions of the Human Rights Act protect trans people from discrimination in the workplace on the basis of their trans identity.

 

For more information on the human rights obligations of employers, and the rights of LGBTQQIP2SA people to be free from discrimination in the workplace, please contact Mary Burnet.

For more resources and information, including training sessions on issues of sexual orientation and gender identity for professionals, university programs and organizations, please contact the Youth Project, a non-profit charitable organization that provides support and services to youth regarding sexual orientation and gender identity.

#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.

 

 

[1] Elder Myra Laramee coined the term Two-Spirit, which some people from different Indigenous cultures use to describe themselves: http://www.twospiritmanitoba.ca/about.html.

[2] http://time.com/3999348/transgender-murders-2015/.

[3] http://transpulseproject.ca/wp-content/uploads/2015/06/Trans-PULSE-Statistics-Relevant-for-Human-Rights-Policy-June-2015.pdf, p. 3.

[4] Ibid.

[5] http://www.ohrc.on.ca/tl/node/19581.

[6] https://studentservices.ednet.ns.ca/sites/default/files/Guidelines%20for%20Supporting%20Transgender%20Students_0.pdf, p. 15.

[7] https://policyfix.ca/2017/01/30/violence-against-trans-people-in-canada-a-primer/.

[8] http://transpulseproject.ca/wp-content/uploads/2015/06/Trans-PULSE-Statistics-Relevant-for-Human-Rights-Policy-June-2015.pdf, p. 6.

[9] Human Rights Act, R.S., c. 214, s. 5(1)(a),(d),(g),(m),(n),(na),(nb).