Under the Code, employers and unions, housing and service providers have a legal duty to accommodate the needs of people because of their gender identity or gender expression, unless it would cause undue hardship. The goal of accommodation is to help everyone have equal opportunities, access and benefits. Failure to accommodate may lead to a finding of discrimination under the Code.
Employment, housing, services and facilities and related requirements should be designed inclusively up front to minimize the need for individual accommodation. They must be adapted when people have accommodation needs related to their gender identity or expression. This should always be done in a way that best promotes the person’s integration and full participation. Most accommodations are not difficult, and should not cause a major burden for those responsible.
Many trans people will not require any accommodations at all. It will depend on the needs of the particular person and the situation.
8.1 Procedural and substantive duties
The duty to accommodate has both a procedural component (the process) and a substantive component (the accommodation provided). Both are equally important.[74]
The procedural duty involves the considerations, assessments and steps taken to respond to an accommodation need.[75] The courts have said that, “a failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the ‘procedural’ duty to accommodate.”[76]
The substantive duty is about the appropriateness or reasonableness of the chosen accommodation as well as the reasons for not providing an accommodation, including proof of undue hardship.[77]
8.2 Principles
The duty to accommodate is made up of several principles including respect for dignity, individualization, integration and full participation.
8.2.1 Respect for dignity
Human dignity involves many factors, including respect for trans people and other gender non-conforming individuals and their self-worth as well as their physical and psychological integrity and empowerment. It is also about privacy, confidentiality, comfort, autonomy, individuality and self-esteem.
Dignity includes considering how accommodation is provided and the person’s own participation in the process. Organizations responsible for providing accommodation should consider the different ways people may need accommodation in their workplace, housing environment or when accessing a service.
8.2.2 Individualization
There is no set formula for people who might require accommodation because of their gender identity and expression. Each person’s needs are unique and must be considered when an accommodation request is made. While some accommodations may only meet one person’s needs, organizations will find that many of the changes they implement will benefit others as well.
8.2.3 Integration and full participation
Employment, housing, services and facilities should be designed, and may need to be adapted, to accommodate the needs of trans people in a way that best promotes their integration and full participation.[78] Segregated treatment is less dignified and is unacceptable unless it can be shown it’s the best way to achieve equality in the circumstances.[79]
8.2.4 Inclusive design
Achieving integration and full participation requires barrier-free inclusive design up front as well as removing existing barriers. Good inclusive design will minimize the need for people to ask for individual accommodation. The Supreme Court of Canada has said that standards should be designed to reflect all members of society, to the extent that this is reasonably possible.[80]
Organizations should design inclusively for the needs of trans people when they develop or change policies, programs, procedures, standards, requirements and facilities. They should not create new barriers.
Example: Organizations should make sure their forms do not ask for a person’s sex or gender unless they can show it is necessary for providing the service.
8.2.5 Appropriate accommodation
Where barriers continue to exist because it is not possible to remove them at a given point in time, then accommodations must be provided, unless this causes undue hardship.
Accommodation is a process and a matter of degree. Different options can be seen along a continuum. The most appropriate accommodation will be the one that best respects dignity, meets individual needs, and promotes inclusion and full participation.
An organization should first identify what is the most appropriate or ideal accommodation in the circumstances before considering whether it would cause undue hardship. It must put in place the most appropriate accommodation unless it is not possible in the circumstances, or would cause undue hardship. In that case, the organization must consider and put in place next-best, phased-in or interim solutions.
Example: A fitness club member is in the process of transitioning to identifying publicly as a woman. She no longer feels it’s appropriate or safe to use the men’s change room but is not yet comfortable using the women’s change room. The club manager explores interim solutions with her, such as a privacy curtain or partition in the women’s or men’s shower and change areas, or access to private staff space.
The club is also looking at more universally inclusive options for the future such as building an accessible privacy stall in each change room, and/or a universal single-user gender-neutral washroom with a shower and space for changing. These could be used by anyone who needs them such as a person who is transitioning, a person with a disability, a family, or others.
This approach allows a trans member to use the facilities based on their lived gender identity and have options while transitioning. It also provides greater privacy options for all members. The club also develops a policy addressing the rights of trans members and educates staff about the policy.
In some cases, the most appropriate accommodation may involve changing policies, practices and other requirements so they are more inclusive. It may require flexibility when enforcing rules and requirements or otherwise proof of why the requirement is legitimate and necessary in the circumstances (also see section 9 of this policy: Reasonable bona fide requirements). This type of accommodation may come up, for example, when a trans person requests a change to administrative documents and electronic records and databases to reflect their lived gender and chosen name (also see section 13.3 of this policy: Identity documents).
Organizations will find that inclusive design, barrier removal and individual accommodations often benefit larger numbers of people.
8.3 Roles and responsibilities
Accommodation is a multi-party process and shared responsibility.[81] Everyone must work together cooperatively and respectfully to explore and implement appropriate accommodation solutions.
The person seeking accommodation is responsible for:
- Telling the accommodation provider (employer, landlord, service provider, etc.) when they have Code-related needs that require accommodation
- Providing information relevant to their needs and meeting any agreed-upon standards once accommodation has been provided
- Cooperating in the accommodation process to the best of their ability.
Accommodation providers are responsible for:
- Accepting requests for accommodation in good faith (unless there is evidence the request is not genuine)
- Making reasonable requests for only information that is necessary to clarify the nature and extent of the accommodation needed for the situation
- Making sure that information related to accommodation is kept confidential and shared only with people who need the information for their role in implementing the accommodation
- Acting in a timely way and taking an active role in looking for solutions
- Covering any appropriate costs related to the accommodation.
Keeping information about someone’s trans identity private and confidential is critical because of the stigma and stereotypes that trans people often face.
[74] See Meiorin, ibid at paras. 65-6 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, at paras. 22 and 42-45 (“Grismer”). See also Adga Group Consultants Inc. v. Lane, supra, note 24.
[75] In Gourley v. Hamilton Health Sciences, 2010 HRTO 2168 (CanLII), the adjudicator stated: “The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. It is the respondent who bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship…” (at para. 8).
[76] Adga Group Consultants Inc. v. Lane, supra, note 24, at para. 107 (ON SCDC).
[77] See Gourley, supra, note 75, at para. 8.
[78] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 [“Eaton”].
[79] Ibid. The Supreme Court stated that “integration should be recognized as the norm of general application because of the benefits it generally provides” (at para. 69). However, the Court found that in Emily Eaton’s circumstances, segregated accommodation was in her best interests. The Court was of the view that this was one of those unusual cases where segregation was a more appropriate accommodation.
[80] Meiorin, supra, note 73, at para. 68.
[81] Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970.