By Nicole Byres

As 2016 has ended and we reflect on potential emerging issues for employers in 2017, the recent amendments to the BC Human Rights Code to include “gender identity or expression” among the protected grounds covered by the Code, deserves commentary.

In July 2016 the BC Government passed Bill 27 – 2016 which added “gender identity or expression” to the existing list of grounds protected from discrimination. At the time, this amendment did not appear to trigger much comment from people in the human resources and employment law sectors – possibly because of the belief that these new grounds were already implied within existing protected grounds of “sex” and/or “sexual orientation”, and consequently, the amendments did not create any new obligations on employers. This assumption however would only be partly correct.

Gender identity refers to a person’s internal and individual experience of gender – whether it is as a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex. Importantly, gender identity is fundamentally different from a person’s sexual orientation. Gender expression refers to how a person publicly presents their gender, which can include behaviour, outward appearance, and preferred pronouns (i.e. he/him, she/her, or gender neutral terms such as they/them).

It is a sad fact that people who are transgender or gender non-conforming are one of the most disadvantaged groups in our society. Trans people routinely experience discrimination, harassment and violence, yet we do not see many human rights complaints based on discrimination due to gender identity or expression (that make it to hearing at least) – even from Ontario which has explicitly included these grounds of discrimination in its legislation since 2012. Clearly, many trans people do not feel comfortable (or safe) in raising issues of discrimination based on gender identity or expression.

To understand the types of unconscious bias that affect trans people, consider the privileges non-trans (“cisgender”) people have such as: being able to use public restrooms or change facilities that match our gender expression without fear of verbal abuse, stares or anxiety; accessing gender-exclusive functions without having to explain why you belong; pronouns used to refer to us (she/her, he/him) match our preferred gender expression; and having role models or mentors to emulate who share your identity. The following are some examples of how we can make workplaces more inclusive for employees:

• Look for opportunities to broaden employees’ understanding of unconscious bias, and how by doing things the way they have always been done, inadvertently creates barriers for people of diversity (including trans people).
• Re-examine workplace policies and processes from a ‘diversity’ or inclusiveness lens. Does your application for employment forms include questions as to applicants’ gender? Do you need that information or can it be left to benefits carriers to ask if required? Is your workplace so formal that you have to use gender specific titles such as Mr., Ms. etc.? Do you have dress codes or uniforms that are distinctly “female” or “male”. Do your standard form communications use gender neutral pronouns such as they or their versus he/him/she/her?
• Ensure that your workplace has at least one restroom that is gender neutral. If renovations are in your plans anyway, consider creating gender neutral restrooms/ end of trip facilities.

Discrimination contrary to the Code does not require an intention to discriminate – so it’s important that when updating or implementing policies and procedures aimed at eliminating discrimination and minimizing unconscious bias, employers understand employees’ rights regarding gender identity and gender expression.

Nicole Byres is a panel speaker at the 2017 HRMA Conference + Tradeshow. Her session Cause and Effect: Proof and Perils of a Just Cause Allegation is on Tuesday, May 2. For more information on this and other sessions, please visit hrma.ca/conference.

Nicole Byres, QC is a member of Miller Thomson’s Labour & Employment Group located in Vancouver, BC and currently chairs the firm’s Inclusion & Diversity Committee.

This article was originally posted on Miller Thomson’s Canadian Labour & Employment Law Blog.