Employee in gender transition

Identity versus physical status
By Leah Schatz
|Canadian Employment Law Today|Last Updated: 12/06/2018

Question: If an employee declares themselves transitioning their gender but still appears as their original gender, at what point is the employer legally required to allow the employee to use facilities such as washrooms or locker rooms for their new gender?

Answer: In order to appreciate the employer’s obligations in this context, it is necessary to understand the distinction between sex, gender identity and gender expression. A person’s sex refers to the physical characteristics associated with being male or female. A person’s gender identity is a person’s sense of themselves and may either be different or the same as the sex that they were assigned at birth. Gender expression is how a person presents their gender. How a person presents their gender may not necessarily reflect their gender identity.

In the past several years, provinces across Canada have amended their human rights legislation to include gender identity and/or expression as prohibited grounds of discrimination. In western Canada, Manitoba amended its human rights legislation to include gender identity as a protected characteristic in 2012. Saskatchewan amended its legislation in 2014, expressly including gender identity as a protected characteristic. Alberta amended its human rights legislation in 2015 to include gender identity and expression as prohibited grounds of discrimination. British Columbia followed suit in July of 2016, including gender identity and gender expression as protected characteristics under its code. However, for those provinces whose human rights legislation does not specifically include gender identity and/or expression as a prohibited ground of discrimination, the law is clear that transgender people are protected from discrimination on the ground of sex.