13. Preventing and responding to discrimination

13.1 Organizational reviews, policies and education

Corporate liability involves more than individual instances of discrimination and harassment. Organizations also risk violating the Code if they do not address underlying problems such as systemic barriers, a poisoned environment or an organizational culture that condones discrimination.

There are several steps organizations can take to make sure they are following the Code and human rights principles related to gender identity and expression. Strategies can include developing and implementing:

• A barrier prevention, review and removal plan
• Anti-harassment and anti-discrimination policies
• An accommodation policy and procedure
• An internal complaints procedure
• An education and training program[104]
• Ongoing monitoring and evaluation.

Under the Occupational Health and Safety Act, all workplaces in Ontario are expected to develop harassment policies and review these at least once a year. Harassment policies should specifically recognize protection for gender identity and expression among other Code grounds.[105]

For more information about these types of strategies, see the OHRC’s Policy primer: guide to developing human rights policies and procedures.[106]

Organizations should also consider developing policies and procedures to deal with the specific needs of trans people related to transitioning, identity documents, washrooms and change facilities, privacy and confidentiality, etc. These issues were raised during the OHRC’s public consultation[107] and are covered in more detail in the next sections of this policy. Addressing them will help remove significant barriers for trans people in their daily lives.

Also see Appendix C: Best practices checklist on these issues and on dress codes, collecting data on sex and gender as well as workplace gender transition guidelines and individual plans.

13.2 Transitioning

Transitioning refers to the activities and process that people may follow to help them live their felt gender identity. This can be very different for each person and some may always be in a state of transition (also see Appendix C: Glossary).

People who are transitioning may need distinct forms and degrees of accommodation along the way. They may ask for recognition of their preferred gender and name while waiting for formal changes to official identity documents. Some may need temporary access to private single-user washrooms and change rooms or housing facilities. They may also need time away for medical procedures or other activities to support their transition. Generally, these will be temporary until the person is ready to access regular services and facilities according to their lived gender identity.

Transitioning can be a very difficult and stressful time for trans people. They are “coming out” to live their felt gender identity making them particularly vulnerable to discrimination and harassment. Issues like name and gender recognition and access to washrooms go to the core of people’s human dignity.

Respect, understanding and confidentiality is everyone’s responsibility during transition and the accommodation process. Organizations should be alert to preventing and addressing any harassment that may happen. Developing policies and training staff will also help prevent problems during transition.

13.3 Identity documents

13.3.1 Barriers

Many identity documents such as birth certificates, health cards, passports, drivers’ licences, school and medical records, etc., show a person’s sex or gender. For trans people, these documents may not match their lived gender identity.

Discrepancies on official documents can create significant barriers, disadvantage and even health and safety risks for trans people.

Example: In XY v. Ontario (Government and Consumer Services), the HRTO said: “A non-transgendered woman can confidently produce a birth certificate when she is required to do so (or when it would be convenient to do so) without having to contend with a sex designation that is incongruent with her lived experience. Her gender identity accords with the sex assigned at birth and is not open to question or challenge. For a transgendered woman, however, this simple act is fraught with risk. Will she be perceived differently as a result of producing a birth certificate that shows that ‘officially’ she is a different gender from the one that she presents? Will her gender identity be questioned or challenged by the person viewing her birth certificate? Will she even perhaps be subject to ridicule or humiliation as a result of producing a government issued document that states that she is a different gender than the one in which she presents herself?” [108]

Trans people may face invasive questions from schools, shelters, hospitals, potential employers or even police about why their gender expression doesn’t “match” the gender designation on a document. An organization might be unwilling to recognize the person’s chosen name and gender. The person may be placed in the “wrong” sex segregated setting such as dorms or hospital rooms that don’t match their lived gender.

An organization should have a valid reason for collecting and using personal information that identifies a person’s gender. They should keep this information confidential.

13.3.2 Changing a name or sex designation

International human rights standards[109] and Ontario case law confirm that a trans person cannot be expected to go through sex reassignment surgery, or any other medical procedure, as a condition to change the gender designation on their identity documents.

Example: In XY v. Ontario (Government and Consumer Services), the HRTO found the requirement under the Vital Statistics Act that a person must certify they had sex-reassignment surgery before being able to change the sex designation on their birth certificate was discriminatory because it resulted in disadvantageous treatment or impact and perpetuated stereotypes about trans people.[110] The Tribunal said:

The message conveyed is that a transgendered person’s gender identity only becomes valid and deserving of recognition if she surgically alters her body through “transsexual surgery.” This reinforces the prejudicial view in society that, unless and until a transgendered person has “transsexual surgery,” we as a society are entitled to disregard their felt and expressed gender identity and treat them as if they are “really” the sex assigned at birth.[111]

While the Ontario Government has not amended the Vital Statistics Act, it has made changes to the criteria for changing sex designation on an Ontario birth registration. Sex reassignment surgery is no longer required. A practicing physician or psychologist need only certify that a change in sex designation is appropriate given the person’s lived gender identity.[112]

Criteria for changing the name and or sex designation on identity documents should be respectful, non-intrusive, and need not necessarily be medically based.

Example: Many types of professionals – social workers, nurses, school or college or university officials, therapists, employers, members of one’s family, faith community or others – could confirm a person is trans and living publicly in the gender matching the change they are requesting.[113]

Other requirements related to changing a name or sex designation, such as public disclosure, should not negatively affect trans people.

Example: In 2006, the OHRC raised concerns that public disclosure requirements under the Change of Name Act were having a discriminatory impact on trans people, effectively “outing” them in public records. To address this, the Government of Ontario amended the legislation and changed the related regulations, accommodating trans people by allowing for a non-publication option.[114]

13.3.3 Recognizing lived gender identity

Sometimes, a person may choose not to change their name and gender on their identity documents. In other instances, different documents may indicate different names and/or gender designations. Regardless of what is recorded on a person’s identity documents, a trans person should be addressed in person by their chosen name and gender.

Organizations should accommodate if a trans person asks them to have documents recognize a name that differs from their legal name.

Example: A trans student requests that class lists reflect their lived gender identity and chosen name. This would help make sure teachers and other staff and students address them appropriately.

Depending on the circumstances, the Code may allow for limits on the duty to accommodate, especially if a person chooses not to change their legal name. An organization would have to show their criteria for recognizing a person’s gender identity is legitimate and they were unable to accommodate short of undue hardship (see sections 9 and 10 of this policy on reasonable bona fide requirements and the duty to accommodate). A person’s chosen name and gender might still be used alongside their legal name, again, if appropriate in the circumstances.

Example: A trans client requests that electronic health records at their local walk-in clinic reflect their lived gender identity and chosen name alongside current health card information that shows a different name and gender. This would help make sure healthcare professionals and other staff address them appropriately in person.

For prescriptions and other documents, ordering medical procedures and referrals to other health care practitioners, the clinic believes the name and gender shown on the person’s health card is also necessary to avoid any health and safety risk from mistakes that might happen.

In many cases, organizations will not need corroboration or proof of a person’s lived gender identity to recognize a person’s chosen name and gender in their administrative system. A person’s request should usually be enough.

Example: The University of Toronto has a policy that allows students to change their name and gender on academic records, class lists and online student databases by writing a letter to their college registrar, requesting this change. The university will require the student to establish and authenticate their identity.[115]

A person’s self-identified gender should be accepted genuinely in good faith even if identity documents do not match their lived gender. An organization would need a serious reason to doubt someone’s self-identified gender.[116]

13.4 Washrooms and change rooms

13.4.1 Access based on lived gender identity

Access to washrooms is a basic physical need at the core of human dignity for everyone. Yet washrooms cause significant barriers for trans people and are one of the public spaces they avoid most.[117]

The Code allows for restriction of services or facilities to persons of the same sex for reason of “public decency.”[118] Facilities such as washrooms, change rooms and locker rooms are typically segregated based on sex. Trans people have the right to access these facilities based on their lived gender identity.

An organization’s washroom facilities and any related policy should not negatively affect trans people. A trans person who identifies and lives as a man should have access to the men’s washrooms and change rooms. A trans person who identifies and lives as a woman should have access to the women’s washrooms and change rooms.

Example: In a case that went to the British Columbia Human Rights Tribunal, a trans person living as a woman entered a lounge and used the women’s washroom. When she came out, a bouncer told her not to do so again or she would be asked to leave. Later, the manager made a policy that patrons must use the washroom matching their anatomy.

The Tribunal found that the policy discriminated against the trans woman and the lounge had a duty to accommodate her needs to the point of undue hardship. The

Tribunal said that “transsexuals in transition who are living as members of the desired sex should be considered to be members of that sex for the purposes of human rights legislation” and that “Taking this view, the Complainant was a woman and, therefore, her choice of the women’s washroom was appropriate.”[119]

A trans person should not be required to use a separate washroom or change room because others express discomfort or transphobic attitudes, such as, “trans women are a threat to other women.” Trans people themselves are at risk of harassment and violence when using these facilities.[120] Education and awareness will help dispel these kinds of stereotypes.

Example: In the case of Ferris v. O.T.E.U., Local 15 (1999), the British Columbia Human Rights Tribunal said: “I accept that transgendered people are particularly vulnerable to discrimination. They often bear the brunt of our society's misunderstanding and ignorance about gender identity. In the context of the workplace, washroom use issues are often contentious and, in the absence of knowledge, sensitivity and respect for all concerned, can inflict a great deal of emotional harm on the transgendered person.”[121]

13.4.2 Accommodation and inclusive design

A trans person does not need to “ask” to use the washroom. They have the right to use the one that matches their lived gender identity. Some people, however, may need accommodation, temporary or otherwise, to access washrooms, change-rooms or other type of sex-segregated facility.

Example: While going through a transition process, and because of concerns about harassment from others, a trans employee requests access to the single-user gender-neutral accessibility washroom normally reserved for use by persons with disabilities.

An employer or service provider has a duty to accommodate such requests unless there is proof it would cause undue hardship.[122]

The Ontario Building Code Regulation[123] already recognizes standards for single-user gender-neutral washrooms (a washroom with one toilet that can be used by either sex) as well as “universal” washrooms (a washroom accessible for people with disabilities with a wash basin and one toilet). The standards only apply to new buildings and major renovations.

Changes to the Building Code Regulation, effective January 1, 2015, will require at least one universal washroom in all new buildings or major renovations, and, for multi-storey buildings, at least one for every three floors. The Building Code Regulation also permits single-user gender-neutral washrooms for everyone instead of separate male and female washrooms.[124] These changes will help meet the needs of trans people and others.[125]

More and more organizations are taking the initiative up front to design, add or convert facilities to be more inclusive with a range of options for everyone. Putting the Building Code standards and other best practices in place sooner will reduce the need for individual accommodation requests and benefit a wide range of people.[126] Examples include:

• More privacy options in traditional men-only and women-only washrooms and change rooms such as individual shower and changing stalls with curtains or doors, that are also accessible and available to everyone
• Gender-neutral single-user washroom or gender-neutral multi-stall washrooms that anyone can use: these options also improve access for people whose gender identity or expression does not fit into “man” or “woman.” They also allow parents with children of opposite genders to enter the washroom together
• “Universal” washrooms: this single-user option also provides accessibility for people with disabilities as well as families and privacy for anyone who needs it regardless of gender identity

Washrooms and change rooms need to be inclusive, accessible and safe spaces for everyone, including trans people and other gender non-conforming individuals.

13.5 Dress codes

Some employers, educational institutions, service providers like swimming pools, or residential facilities like hospitals or even jails may have rules about what people wear. These requirements can be legitimate depending on the circumstances but they should not negatively affect trans people and others protected under the Code. Any specific dress codes, such as uniforms or protective gear, must be genuine and reasonably necessary and should not be based solely on gender stereotypes.[127]

Dress code policies need to be inclusive of everyone, including trans people. Organizations must allow trans people and other gender non-conforming individuals to dress according to their expressed gender. Dress codes must also accommodate women who have a masculine gender expression and men who have a feminine gender expression. Others may identify as gender non-conforming, and should not be required to dress in clothing either stereotypical of men, such as a tie, or women, such as a skirt. Dress codes that are gender-inclusive and flexible are the best approach.

13.6 Shelter services

Trans people sometimes face barriers and discriminatory treatment when accessing shelter services. Trans males, for example, have reported that they are unsafe in men’s shelters and unwelcome in women’s.[128] Some shelters ask invasive questions about a trans person’s transition status. Shelter staff may have little training about transgender-related issues, needs and terminology.[129]  Some youth report being required or feeling compelled to conform to their birth-assigned sex to access shelter services.[130]

The Code has exceptions that might permit organizations like homeless, transitional and youth shelters or shelters for abused women to restrict their residential accommodation or other services to persons of the same sex. A trans person should have access to the shelter that matches their lived gender identity.[131] A shelter might even limit its service to just helping trans people.[132] A shelter cannot otherwise discriminate based on a person’s gender identity or expression.

Example: A young person seeks services at a youth shelter that has a “male” and ”female” floor. Her birth assigned sex is male but she identifies as female. She requests to stay on the female floor, and the shelter agrees. The shelter also takes steps to educate clients and staff in the shelter about gender identity and human rights.

Safety from harassment and violence inside shelters is also a pressing concern for people who use them. Trans people are particularly vulnerable.[133]

Example: A trans man may not feel safe in a men’s shelter and may ask for access to a women’s shelter, or to a separate space within a men’s or a women’s shelter.

Shelter rules and requirements should be inclusive as possible to avoid negatively affecting trans clients. Organizations also have a duty to accommodate any needs trans clients may have unless it would cause undue hardship. Accommodation needs might involve changes to policy requirements, practices or systems and facilities such as washrooms, change rooms, sleeping quarters, or security procedures, as well as identity records or other matters.

Shelters should look for barriers, develop or change policies and procedures and undertake training to deal effectively with access and safety needs of all clients, including trans people and other gender non-conforming individuals.[134]

Example: Section 4.7 of the City of Toronto’s Shelter Standards addresses the needs of trans clients and reads in part: “It is expected that all shelters be accessible to the transgendered / transsexual/two-spirited (TS/TG/2-S) residents in their self-defined gender, and that shelters will work toward improving access to this group. Shelters will support the choices of TG/TS/2-S residents to gain access to services in the gender they identify will best preserve their safety.”

Shelters will be required to identify how they will respond to people who are TS/TG/2-S seeking service including developing a process, that may include a policy, staff training, designated beds, referrals, etc. done in consultation with TS/TG/2-S communities.[135]

13.7 Health care services

Trans people have a wide range of health care needs like anyone else. But they face barriers in accessing health care services on many levels.

Trans people report that family doctors and hospital emergency services often do not understand or respect their lived gender identity. It can be common for trans people to avoid seeking medical assistance, even in dire circumstances, for fear of a degrading experience in the health care setting.[136]

Research points to systemic social exclusion of trans people within the healthcare system. Services are often designed as if trans people do not exist. Little to no information is collected on their health care needs. This often results in policies and practices that may be discriminatory and create barriers for trans people to access care.[137]

Example: Hospital staff refuse to recognize a trans person’s chosen name and lived gender during a visit to emergency with a broken arm. Staff assign the trans patient to the “wrong” sex-segregated room and ask invasive and unnecessary questions about her body.

Trans people and other gender non-conforming individuals have a right to access health care services free of discrimination and harassment. Hospitals and other healthcare providers have an obligation not to discriminate or condone discrimination, including harassment, because of someone’s gender identity or gender expression. They also have a duty to accommodate any needs trans patients may have unless it would cause undue hardship.

Health care providers should take steps to identify and remove barriers as well as develop policies and procedures to prevent discrimination faced by trans people.

Example: Toronto’s Mount Sinai Hospital has an anti-discrimination policy that provides guidelines on the treatment of all trans, intersex and two-spirit patients (see Appendix B: Glossary for an explanation of these terms) to make sure they are treated with equality, dignity, and respect, in accordance with the Code. The policy provides guidance in several areas, including:

• All patients have the right to be identified and addressed by their lived gender
• Patients who are trans, intersex or two-spirit are to be given a range of bed accommodation options (e.g. private or semi-private room) according to their lived gender identity
• All patients have the right to use washrooms or change rooms based on their lived gender. Information is provided on the location of universal (single-user gender-neutral) washrooms
• Health care practitioners only request and disclose a patient’s birth-sex and/or other related information when directly related to their health care
• Admitting services provide options for identification that include trans,
  intersex and two-spirit.[138]

Trans people also face barriers in accessing specialized health care services unique to their health care needs as a trans person.

The Ontario Health Insurance Plan (OHIP) covers sex reassignment surgery (SRS). Trans people can only access SRS if they complete a designated program, available at only one institution in Ontario, the Centre for Addiction and Mental Health.[139] There is currently a wait list of several months to access this program.[140]

Trans people may seek other body-changing procedures that are not covered by OHIP.[141] A few cases have come to the Human Rights Tribunal of Ontario alleging the lack of OHIP coverage for medical procedures related to transitioning gender identity is discriminatory.[142]

Example: The HRTO dismissed two claims alleging the government’s failure to fund breast augmentation, voice therapy and facial laser hair removal for male-to-female transsexuals was discriminatory. The HRTO found no evidence these procedures were medical needs that fell within the purpose of OHIP.[143]

All health care providers, including those offering elective procedures not covered by OHIP, should be aware of the health care needs of trans people and adapt their services where appropriate. Health care providers must not exclude trans people unless they can show they do not have the competency (skills or experience) needed to safely provide the services.[144]

Example: In a case that went to the HRTO, two women alleged a doctor, who performs elective cosmetic plastic surgery including on the genitals of both women and men, refused them services because they were trans. One woman was inquiring about plastic surgery on her labia and the other was interested in breast augmentation.

The HRTO found the trans women did experience prima facie discrimination as the doctor denied the surgeries because they were trans. However, the HRTO accepted the doctor’s justification that he was not qualified to safely perform the surgeries the trans women were seeking and found there is no expectation that he go get the necessary skills.[145]

The international Yogyakarta Principles recognize that access to specialized health care services for trans people is part of the right to the highest standard of health. This includes governments helping to facilitate access to body modifications related to gender reassignment.[146]

13.8 Education system

Trans youth can face a wide range of prejudice and discriminatory treatment at a very challenging time in their life. This can include educators and fellow students not addressing them by their chosen name and pronoun, and a lack of access to appropriate and safe washrooms and change room facilities. Trans youth are especially vulnerable to harassment and bullying from peers.

A 2011 Canadian survey found:

• 78% of trans students feel unsafe in their schools
• 74% of trans youth had been verbally harassed because of their gender identity
• 49% had experienced sexual harassment in school because of their gender identity
• 37% had been physically harassed or assaulted because of their gender identity or expression.[147]

Trans youth want but don’t always have the support of their teachers and school administration to help them during transition to their felt gender. Sometimes they may not have the support of their family either, making a welcoming school environment all the more important.

Ontario’s Accepting Schools Act [148] amended the Education Act to provide explicit protection for students from bullying because of gender identity and gender expression among other grounds. The legislation requires school boards to develop and implement equity and inclusive education policies that address all forms of discrimination and harassment based on Code protected grounds, including gender identity and gender expression.[149]

All youth have a right to self-identify and express their lived gender identity while accessing education services. Under the Code, school boards, colleges and universities as well as other educational institutions have a responsibility to take steps to prevent and respond to discrimination and harassment of students because of their gender identity or gender expression. They also have a duty to accommodate any trans students’ needs related to gender identity and expression.

Educational institutions should develop policies and procedures to recognize, among other things, that:[150]

• Trans students have the right to be addressed by their chosen name and pronoun
• Official records should reflect a student’s lived gender, chosen name and pronoun as much as possible
• Trans students have the right to access washrooms and other facilities and take part in physical education and other classes in accordance with their lived gender identity
• If they wish, trans students can also request accommodations such as access to gender inclusive washrooms, or private spaces within change rooms
• More privacy options such as individual changing stalls and showers with curtains or doors would benefit all students
• Students have a right to privacy, and schools must keep a student’s transgender status confidential. It should not be communicated to others unless they have a “need to know” to fulfill a specific accommodation need, or if the student requests it
• School dress codes and uniforms should be flexible and inclusive of all students regardless of their sex, gender identity or gender expression
• Where educational institutions have student residents, trans students should be able to choose housing based on their lived gender identity. It is also beneficial to have gender inclusive housing options where students share a facility regardless of their sex or gender identity.

13.9 Law enforcement and justice services

Trans people are especially disadvantaged and vulnerable when dealing with police, correctional institutions and other service providers in positions of power.[151]

It is vital that law enforcement services develop policies as well as education and training for police and correctional service staff, to address the discrimination, harassment and violence that trans people report facing in law enforcement situations.[152]

To effectively promote and protect the rights of trans people, justice institutions and other legal services also need to learn about their needs.

13.9.1 Strip searches

In law enforcement situations requiring strip searches, police and correctional institution officers need to offer trans persons a choice of the sex of the officer(s) who searches them. This should include the option of only male officer(s), only female officer(s), or a “split search” with both male and female officers. A split search might involve, for example, male officers examining a detainee’s “male” lower body and female officers examining the person’s “female” upper and/or lower body. The HRTO confirmed this approach to conducting searches with trans individuals.

Example: The HRTO found that a detainee, who self-identified as a trans woman, experienced discrimination when police refused her requests for strip-searches to be conducted by female officers.[153] The HRTO said that in these types of situations detainees must be offered a choice of the sex of the officer who searches them.[154]

The HRTO set out appropriate criteria for verifying identity and conducting strip searches. It also identified some exceptions for dealing with high security risk situations and for rare circumstances where an officer might opt out because they have a valid competing right.[155]

13.9.2 Correctional institutions

In correctional settings, trans people are at higher risk of experiencing harassment and violence both from other inmates as well as from institutional staff.[156] Sometimes, trans people may be held in segregation units for their own protection. However, this can often isolate them and prevent them from having the same privileges or access to services available to others within the general prison population.[157]

Inmates whose gender identity is different from their birth-assigned sex should be assessed and accommodated on an individual basis. To the greatest extent possible, institutions should provide trans inmates with housing that is appropriate for their lived gender identity. Accommodation options should consider both their safety as well as the safety of all inmates. Assessment of safety risk should be based on evidence and not speculation or stereotypes. 

Prison authorities should also make sure that forms of protective segregation are not unjustly used to deny trans inmates the rights and privileges that other prisoners have.

The importance of accommodating trans inmates is supported by the case law.

Example: A case that went to the Canadian Human Rights Tribunal (CHRT) dealt with a trans inmate who identified and lived as a woman, but was placed in a men’s prison. The CHRT found that Correctional Service Canada had a duty to accommodate trans inmates, especially because of their vulnerability to violence. The CHRT said:

Any policy dealing with this uniquely vulnerable group must recognize the differential effect that housing inmates in accordance with their anatomy has on transsexual inmates. The policy also needs to acknowledge their susceptibility to victimization within the prison system. Finally, it must require the individualized assessment of each transsexual inmate by corrections officials, in consultation with qualified medical professionals, as to the appropriate placement of the individual within the various types of facilities available in the male prison system, and the steps that are necessary to ensure their safety.[158]

Trans inmates should also have access to health care services related to transitioning while incarcerated.

Example (continued): The CHRT also found that Correctional Service Canada's blanket prohibition on sex reassignment surgery had a discriminatory effect on trans-identified inmates, and that it was unable to justify such a policy. As a result, the CHRT ordered Correctional Service Canada to develop a health care services policy that ensures that the needs of transsexual inmates are identified and accommodated.

13.10 Other services

The Code also protects trans people and other gender non-conforming individuals from discrimination in other areas involving services, goods and facilities[159] including retail stores.

Example: In a complaint that went to the Saskatchewan Human Rights Commission, a trans woman alleged a bridal shop refused to let her try on dresses as she planned her wedding. The complaint was successfully resolved once the business owner better understood the human rights issues.[160]

Retailers and other service providers must not discriminate because of gender identity or expression when providing their services. They too have a duty to accommodate needs that customers or clients may have related to their gender identity and expression, unless it would cause undue hardship.

13.11 Housing

Trans people are vulnerable to discrimination from landlords because of their gender identity or gender expression when applying for housing, exercising their rights as a tenant,[161] or when trying to access other housing-related services (see also section 13.6 of this policy: Shelter services).

While discrimination may not always be direct or overt, prejudicial attitudes and related treatment can make it hard for trans people and other gender non-conforming individuals to access and maintain housing. This in turn can have a harmful cascading effect on other aspects of their lives, including health, education and employment.

The Code says that every person has a right to equal treatment in housing without discrimination because of gender identity and gender expression.[162] Landlords, their agents and other housing providers must not deny housing to people because of their gender identity or gender expression.

Example: A trans woman calls a landlord and makes an appointment to see an apartment for rent. During the appointment, the landlord asks what her real name is and says he only rents to women. When the trans woman follows up the next day, he abruptly tells her the apartment was now rented to someone who supposedly came to see it sooner.

As well, landlords must not discriminate in how they treat tenants, including decisions about renewing leases or evictions. They must also address any discrimination or harassment related to gender identity and gender expression that may happen within the housing environment. This could include dealing with the behaviour of other tenants, agents of the landlord such as building supervisors, or others such as maintenance workers.

Example: A worker doing repairs in the apartment of a trans woman makes ongoing comments about her body and sexual practices. Shortly after, the tenant discovers transphobic graffiti on the wall of the parking garage. She complains to the landlord that she is being harassed, but the landlord says there isn’t much he can do about it.

If landlords become aware of discrimination or harassment through complaints or other means, they must respond appropriately. Landlords who fail to take steps to address problems may be found liable by a tribunal or court.[163]

13.12 Employment

Trans people report facing discriminatory treatment in employment. The Ontario-based Trans PULSE survey found:

• 18% of survey respondents said they were turned down for a job because of their trans identity
• 13% said they were fired from their job or constructively dismissed because they were trans^[164]

Discrimination is often based on unfounded stereotypes or negative assumptions such as: trans people will make other co-workers and clients uncomfortable; they will not be a good “fit” for the workplace; or, they have accommodation needs that will be difficult and expensive.

The Code says that every person has a right to equal treatment in employment without discrimination and harassment because of gender identity and gender expression.[165] This includes any accommodation that may be necessary and applies at all stages of employment from hiring, to retention, pay and benefits and dress codes, to training and promotion, performance management and termination.

13.12.1 Hiring

Employers must make sure that overt and subtle or hidden discrimination against trans people or other gender non-conforming individuals does not happen during hiring or they can be held liable.

Example: In a case that went to the Canadian Human Rights Tribunal, a trans woman had applied for a job as a customer service representative in a bank. She underwent a three-step interview process and was led to believe she would be hired. Later when she found out she did not get the job, the bank did not explain why. Meanwhile, they had not filled the position and continued to look at applicants who had the same qualifications as the trans woman.

During the hearing, the bank said it did not hire the trans woman because she was supposedly over qualified, had an attitude during the final interview that “was not that of a person who wishes to serve the public” and wanted to “use the position to promote the rights of transgendered persons.”[166]

The CHRT said these reasons were disingenuous and an excuse for bias and prejudice because she was trans.[167] The CHRT found that discrimination had happened. It said that where a trans person is qualified and someone else, no better qualified, is selected (or where the organization rejects the trans person but continues to seek applicants with the same qualifications), the organization will need to provide a non-discriminatory explanation for not hiring the trans person.

13.12.2 Transitioning employees

Trans employees are particularly vulnerable to discrimination when their identity becomes known to employers or when they begin to transition to their felt gender identity.

Employees who are transitioning publicly can experience a great deal of stress during this time, including at work. This is due in part to their experience and fear of discrimination and harassment. Employers may find an excuse to fire or demote transitioning employees instead of providing accommodation. They sometimes discriminate in other ways, such as assigning less lucrative or prestigious files and clients, or denying training and promotion opportunities. It may be difficult for a trans employee to prove that this type of subtle discrimination happened,[168] but the negative impact is real.

Example: In an HRTO case, an employee was taking steps to transition to identifying and presenting as a woman. During this time, she experienced ridicule and harassing comments and conduct from co-workers in the change room and the workplace at large. She complained to her employer about the harassment and the need for separate change facilities. Her employer refused to address the harassment and later fired her.[169]

The HRTO found the employer had discriminated and contributed to the harassment and a poisoned work environment by insisting the employee use the men’s change room, even though she was living as a woman and faced ongoing harassment from co-workers. The HRTO also found the employer failed to investigate and respond reasonably to the employee’s complaints of harassment.[170]

Example: An employee intends to transition and speaks to their manager to inform them and discuss what types of accommodation they may need during the transition period. The employee asks for time off so that they may return to work presenting in their new gender. The employer accommodates the employee by working cooperatively to develop a transition plan to address different issues that may arise in the workplace, such as changing the employee’s name in electronic directories, washroom use, and to provide education and training for other employees.

13.13 Vocational associations

The Code says that every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of gender identity or gender expression.[171]

Example: In a case that went to the British Columbia Human Rights Tribunal, a trans employee was involved in a dispute with her employer (that initially related to a complaint that was made about her use of the women’s washroom). The person did not feel that her union's actions on her behalf regarding this dispute were adequate. She alleged that the union discriminated against her in its response to the incident, both initially and with respect to the events that followed the initial dispute, and in the way it responded to the employer's handling of the complaint made against her.

The Tribunal found that the union had treated her worse than it would have treated other union members in similar circumstances, and that her status as a trans person was a factor in her treatment. The Tribunal ordered the union to stop contravening the human rights law and to pay her damages for lost wages and the injury it had done to her dignity, feelings and self-respect.[172]

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