Gender Identity + Expression

November 15, 2021

On October 28, my colleague Alissa Demerse and I presented on a very important topic in today’s climate: Gender Identity and Expression. In this webinar, we provided an overview of the topic, reviewed a number of key cases and outlined “do’s and do not’s” for employers.

Gender Identity is the internal and psychological sense of self as a woman, a man, both, in between or neither. Gender Expression includes how a person acts and appears. It can include dress, hair, make-up, body language, and voice. How a person presents their gender may not reflect their gender identity. For example, if a person’s gender identity is male, his gender expression is male only if he demonstrates typically male characteristics in behavior, dress, and/or mannerisms. Trans or Transgender is the umbrella term to describe a wide range of people whose gender identity differs from their sex assigned at birth.

Workplace Protection

Gender Identity and Gender Expression are expressly protected grounds under the B.C Human Rights Code. The Code protects people from discrimination and harassment based on their gender identity and gender expression, among other protected grounds.

In the workplace, an employer must not discriminate against a transgendered person by refusing to hire them, offering them lower wages or less desirable working conditions, or terminating their employment because they are transgendered. An employer has the duty to accommodate its employees up to the point of undue hardship. This will likely involve changes to workplace policies or requirements in order to make the working environment more inclusive.

Using a person’s pronouns incorrectly can be a form of bullying and might be discrimination under the Code. This is discussed in a recent BC Human Rights Tribunal case: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria, 2021 BCHRT 137 [“Nelson”].

Nelson involved a non-binary, gender fluid, transgender person named Jessie Nelson, who used they/them pronouns. During their four weeks of employment at Buono Osteria restaurant, Jessie was persistently referred to with she/her pronouns and with gendered nicknames like “sweetheart”, “honey”, and “pinky” by the bar manager. Their employment was terminated after they asked management to stop the bar manager.

The Tribunal found that a global award of $30,000 was appropriate. As the employer, Buono Osteria was liable for this entire amount. The bar manager was individually liable for $10,000. The directors were both individually liable for $20,000.

Buono Osteria was ordered to include a statement in its employee policies that affirmed every employee’s right to be addressed with their correct pronouns.

The Tribunal also encouraged, but did not order, the restaurant to update its policies to use non-binary, gender neutral language throughout. This would mean, for example, replacing references to men or women with ‘people’ and replacing he/his/she/hers with they/them. The Tribunal also ordered Buono Osteria to implement mandatory training for all staff and managers about human rights in the workplace.

Key Takeaways for Employers

  • Permit a transgendered employee to:
    • transition at the workplace, including by providing them with medical leave
    • Self-identify by pronoun of their choice regardless of identification documents
    • Use the washroom/change room appropriate to their gender identity as determined by them
    • Dress in accordance with their gender identity
  • Do not disclose information about their gender identity without their express permission
  • Consider functional signage rather than gendered or clearly trans-inclusive
  • Have a bullying and harassment policy and take immediate steps to remedy any such behaviour
  • Follow the lead of the transgendered employee

    Nimrit K. Sian is an associate lawyer at Roper Greyell LLP, practicing in all areas of workplace law with a focus on contractual disputes, workplace policy development, and litigation. For more information on Nimrit’s practice or any other Roper Greyell lawyers, please visit https://ropergreyell.com/our-people/

    While every effort has been made to ensure accuracy in this update, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The document is for general information purposes only and does not constitute legal advice.