7. Forms of discrimination

7.1 Direct, indirect and subtle discrimination

Discrimination may take many different forms. It may happen in a direct way. It can happen when individuals or organizations exclude trans people from housing, employment or services, withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate reason.

Discrimination may also happen indirectly. It may be carried out through another person or organization.

Example: A company contracting services from a temp agency takes on a worker who it later discovers is trans. The company tells the agency not to send any more workers who are trans or who don’t look like “normal” men or women.

Both the organization or person that sets out discriminatory conditions, and the organization or person that carries out this discrimination, can be named together in a human rights claim and held jointly responsible.

There is much overt discrimination against trans people. More hidden, subtle or subversive forms happen as well but they are just as harmful. For more information about “subtle” discrimination, see section 3.3 of the OHRC’s Policy on racism and racial discrimination.

Discriminatory remarks are not always made openly. People don’t necessarily voice their stereotypical views to explain their behaviour. Subtle discrimination might only be detected when looking at all of the circumstances to see if a pattern of behaviour exists.

Individual acts themselves may be ambiguous or explained away. But when viewed as part of a larger picture, they may lead to a conclusion that discrimination because of gender identity or expression was a factor in the treatment of a person. An inexplicable departure from the usual practices may support a claim of discrimination.[32] Criteria applied to some people but not others may also be evidence of discrimination, if it can be shown that people and groups protected by the Code were singled out for negative treatment.

The cumulative effect of both overt and subtle discrimination is profoundly damaging to people who experience it.

7.2 Intersecting grounds

Discrimination may be unique or distinct when it involves two or more Code grounds. It is said to be “intersectional.” The concept of intersectional discrimination recognizes that people’s lives involve multiple interrelated identities, and that marginalization and exclusion based on Code grounds may exist because of how these identities intersect.

Trans people are also vulnerable because of their identification with other Code grounds, such as race,[33] family status,[34] sex (pregnancy and breastfeeding) or disability. They may experience unique forms of discrimination when they try to access housing, employment or services. Particular stereotypes develop around intersecting identities that put trans people at significant disadvantage.

Example: A female tenant identifies as a “Black person,” as “trans” and as a “young” person. She experiences racial comments and threats of eviction from her superintendent whenever she asks to have maintenance work done. The property management company investigates. Other long-time Black tenants report no problems with the superintendent. The investigator concludes the young Black trans woman experienced discrimination because of her combined gender identity, race and relatively young age.

A person’s experience of discrimination because of their gender identity can also intersect with their socio-economic status. Studies indicate higher levels of poverty among trans communities, in part resulting from workplace discrimination.[35] A trans person living with low income may face additional or unique forms of stigma and discrimination. Financial vulnerability is very relevant to understanding the impact of intersectional discrimination on people’s lives.

Organizations have a duty to maintain environments that are free from discrimination and harassment. This includes taking into account the needs of people from diverse backgrounds, with a range of unique identities.

Organizations should look at whether their staff have cultural competency skills.[36] The ability to interact comfortably with people of diverse cultural backgrounds and identities is key to recognizing and meeting the human rights-related needs of different groups and communities, including trans people and other gender non-conforming individuals.

When interacting with people, organizations should use an individualized approach that recognizes the unique identity of each person, without relying on preconceived notions, assumptions or stereotypes.

7.3 Association

Some people face discrimination because of their association with someone who is trans or gender non-conforming.[37]

Example: A tenant experiences harassing comments from a landlord because their new roommate is a trans person.

Discrimination because of association is prohibited under the Code.[38] This could apply to friends, family[39] or others such as someone advocating on behalf of trans people.

7.4 Gender-based harassment and sexual harassment

The Code prohibits harassment on various grounds including because of gender identity and gender expression (gender-based harassment) as well as because of sex (sexual harassment). Trans people, other gender non-conforming individuals as well as non-trans people (cisgender) can all experience harassment on any one or a combination of these and other grounds.

The Code defines harassment as “engaging in a course of vexatious[40] comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment will have happened if the person carrying out the behaviour knew or should have known it was unwelcome. If the victim says the behaviour is unwelcome then the harasser “knows.” If the harasser didn’t know (or didn’t intend to harass), it is still harassment if a “reasonable” person would know such behaviour is unwelcome.[41] What is considered “reasonable” includes the perspective of trans people and other gender non-conforming individuals.

A victim does not have to explicitly or directly object to harassment.[42] They may be vulnerable and not speak out because of a threat or fear or because the person has some power or authority over them like a manager or landlord. Some may simply withdraw or walk away.

Many trans people are vulnerable to harassment because of their gender identity and gender expression.[43] Trans people also experience harassment that is sexual in nature (sexual harassment) that may be because of their gender identity, gender expression and/or sex.

Gender-based harassment can involve:

• Derogatory language toward trans people or trans communities
• Insults, comments that ridicule, humiliate or demean people because of their gender identity or expression[44]
• Behaviour that “polices and or reinforces traditional heterosexual gender norms”[45]
• Refusing to refer to a person by their self-identified name and proper personal pronoun
• Comments or conduct relating to a perception that a person is not conforming with gender-role stereotypes
• Jokes related to a person’s gender identity or expression including those circulated in writing or by email or social media[46]
• Spreading rumours about a person’s gender identity or expression including through the Internet[47]
• “Outing” or threatening to “out” someone as trans
• Intrusive comments, questions or insults about a person’s body, physical characteristics, gender-related medical procedures, clothing, mannerisms, or other forms of gender expression
• Other threats, unwelcome touching, violence and physical assault.

Sexual harassment can involve:

• Intrusive or offensive questions or comments about a trans person’s sex characteristics, sexual identity, romantic relationships or sexual activity, or sexual orientation
• Jokes that objectify a trans or gender non-conforming person in a sexual way including those circulated by email or social media[48]
• Displaying or circulating pornography,[49] sexual pictures or cartoons,[50] sexually explicit graffiti,[51] or other sexual images about trans people including through the Internet
• Leering or inappropriate staring[52]
• Threats, unwelcome touching, violence and sexual assault.

Harassment against trans and other gender non-conforming individuals can be a mix of unwelcome gender-based and sexual behaviour at the same time. Harassment is often used to get people to follow traditional sex stereotypes. It is also used as a bullying tactic to ridicule, ostracize and exercise power over people based on how they dress, act, or express their gender.[53]

Trans people are particularly vulnerable to gender-based harassment and sexual harassment during the time when they publicly transition to their felt gender identity,
or if their trans history is disclosed to others.

Example: A factory worker transitioned from identifying and presenting as a man to identifying and presenting as a woman. Over a period of years during and after her transition, she alleges she was exposed to sexual conversations and pornography. Co-workers grabbed and touched her breasts, buttocks and genitals and called her names like “he-she.”[54]

Harassment because of gender expression can affect people who are not trans.

Example: An outspoken, high-performing woman in a male-dominated professional accounting office was denied partnership and told to learn how to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewellery….”[55]

Harassment can be a hostile attempt to make someone feel unwelcome in their environment because of the way they express their gender. In some cases, it may take the form of homophobic bullying because others see the person’s gender expression as an expression of their sexual orientation.

Example: A female high school student who is not trans wears her hair short with masculine clothes and is very athletic. She is repeatedly called a “dude,” “she-man” and “dyke” by groups of kids in her school and players on teams from other schools.

Harassment can happen between members of the same sex or gender identity. Male-to-male gender-based harassment, for example,[56] is aimed at men who appear more feminine, gay or otherwise “insufficiently” masculine based on stereotypes about gender.[57] The harassment will often involve homophobic slurs and taunting, no matter what the perpetrator or victim’s sexual orientation, gender identity or expression.[58]

In addition to the Code’s explicit protection against harassment in housing and employment, harassment is also prohibited in services and other social areas.[59]

Organizations have an obligation to maintain an environment free of harassment targeting people because of their gender identity or gender expression, whether or not anyone objects.[60]

For more information see the OHRC’s Policy on preventing sexual and gender-based harassment.[61] Also see section 12 of this policy: Corporate liability.

7.5 Poisoned environment

While harassment generally involves a series of incidents, in some cases, one incident could be severe or serious enough to create a poisoned environment.[62]

A poisoned environment is a form of discrimination. In employment, tribunals have held that the atmosphere of a workplace is a condition of employment as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace.[63] A poisoned environment can also happen in housing and services.

A poisoned environment may happen when unwelcome comment and conduct is ongoing or widespread throughout an organization. This can lead to a hostile or oppressive atmosphere for one or more people from a Code-protected group.

While ongoing exposure to harassment can be a factor, a poisoned environment is also based on the nature of the comments or conduct and the impact on an individual or group rather than just on the number of times the behaviour happens.[64]

Behaviour need not be directed at any one person to create a poisoned environment. A person can experience it even if not a member of the targeted group. Failing to address discrimination and harassment may in itself cause a poisoned environment.[65]

The consequence of a poisoned environment is that certain people or groups like trans people face negative terms and conditions of employment, tenancy, education or other services that other people do not experience. A poisoned environment might also cause a person to delay transitioning and can negatively affect other gender non-conforming individuals as well as friends and family.

A poisoned environment can happen because of the comments or actions of any person, regardless of their position of authority or status. It could involve a co-worker, supervisor, co-tenant, housing provider, member of the Board of Directors, fellow student, teacher, contractor, client, etc. Whoever is involved, the person in charge has a duty to address it.

Example: A trans woman was subjected to a poisoned work environment through harassing comments and being required to use the men’s change room. The company contributed to the poisoned environment by insisting that she be treated as a man in all respects until she completed surgery, and by failing to investigate and respond to her allegations of harassment.[66]

Organizations have a duty to maintain an environment free from discrimination, to be aware of a poisoned environment that exists, and to take steps to respond and eliminate it.[67] This is the case even if no one objects, and even if there is widespread participation in the behaviour.[68] Managers who know or should know a poisoned atmosphere exists but allow it to continue are essentially promoting discrimination even if they are not directly involved (also see section 12 of this policy: Corporate liability).[69]

7.6 Systemic discrimination

Discrimination is not always just between individuals. It can be more complex and systemic, embedded in patterns of behaviour, policies and practices that are part of the administrative structure or informal culture of an organization, institution or sector. It can be hidden to the people who don’t experience it. Sometimes a group’s historical disadvantage is a factor that gives rise or contributes to the systemic discrimination they experience.

These factors sometimes appear neutral on the surface but can have an adverse or negative effect, creating or continuing disadvantage and limiting rights and opportunities for trans and other gender non-conforming persons.[70]

Example: A new recreational hockey league is divided into men’s and women’s teams. A trans man who plays in another women’s league wants to join the men’s team. The new league interprets the rules to mean you must play on the team that matches your birth-assigned sex.

Systemic discrimination may include aspects of overt as well as adverse effect discrimination that overlap and compound the problem.[71]

Example (continued): The new hockey league’s governing board denies the trans man’s application based on their interpretation of the rules. They also claim that dressing rooms would be a problem. The chair of the board has not kept the matter confidential and is advising other leagues in the area to keep trans people from playing on the “wrong” team.

Organizations and institutions have a positive obligation to make sure they are not engaging in systemic discrimination. They should prevent barriers by designing policies and practices inclusively up front. They should also review their systems and organizational culture regularly and remove barriers where they exist.

Organizations must also address new problems when they come up. To the greatest extent possible, this means changing policies and practices to include and accommodate[72] more people instead of merely making exceptions for people who don’t “fit” in the existing system.[73]

Example (continued): The recreational hockey league still has separate women’s and men’s teams, but changes its policy to permit players to play on the team that matches their lived gender identity.

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