Human rights protections for gender identity

Transgender people continue to face discrimination and harassment in the workplace. By negotiating human rights protection based on gender identity, PSAC will help ensure equitable and fair working conditions not just for trans workers, but for everyone. We have already had success in other workplaces – now’s the time to ensure that all of our Treasury Board members benefit from the same protections.

Employers have a responsibility to provide safe and healthy workplaces – environments that are free from discrimination and harassment. They are responsible for any discrimination that occurs in their workplaces and they must make every reasonable effort to prevent it from happening. This can include implementing and publicizing anti-discrimination policies and procedures, providing education on human rights, and negotiating human rights protections into our collective agreements. 

We have made progress in enhancing our anti-discrimination protections, but challenges remain – including safeguarding the rights of our transgender members. This is why gender identity and expression need to be included in the list of prohibited grounds of discrimination in our collective agreements.

Gender identity concerns a person’s internal sense of being male or female. A transgender person is not comfortable with or rejects their biologically and socially assigned gender identity or expresses their gender in unconventional ways.

A transgender (trans) person may be gay, lesbian, bisexual or heterosexual – there is no direct connection between gender identity or expression and sexual orientation. How a transgender/trans person expresses their identity is up to them; their anatomy, appearance, identity, beliefs, personality characteristics, demeanor and behavior may diverge or be perceived to diverge from prevailing social norms and stereotypes about gender.

Our transgender members can experience daily acts of discrimination in the workplace, including:

  • Derogatory comments, verbal and physical harassment and violent assault.
  • Lack of confidentiality of personal and medical records; lack of accommodation.
  • Refusal of leave for medical procedures and period of transition and other problems with medical coverage.
  • Lack of promotions, training and even dismissal.

Survey data from both Canada (Trans PULSE Project) and the United States (National Center for Transgender Equality) illustrates the difficulties experienced by our trans members:

  • 97% of transgender people have been harassed in their workplace;
  • 26% lost their job because of gender identity;
  • 36% have had suicidal thoughts in one year (2011);
  • 10% have attempted suicide.

Making progress

There is some good news to report. A private member’s bill (Bill C-279) has been presented to the House of Commons and has progressed to the Senate. This bill proposes to amend the Canadian Human Rights Act to include a definition of gender identity, and to add gender identity to the prohibited grounds of discrimination under the Act. The bill also includes amendments to the Criminal Code to cover gender identity in hate crimes offences.

Since 2002, the Northwest Territories Human Rights Act includes gender identity under the prohibited grounds of discrimination. As well, the Ontario Human Rights Code and the Nova Scotia Human Rights Act include gender identity and expression in the prohibited grounds of discrimination.

In October 2013, the Technical Services Group signed a collective agreement which includes gender identity and expression under the “no discrimination” clause. PSAC has negotiated gender identity and/or expression in more than 60 collective agreements so far.

Challenges remain

While not explicitly contained in the Canadian Human Rights Act, an argument could be made that the spirit of the Act does speak to the issue of gender identity and expression: “…to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated…”

Where the problem exists with most human rights codes, as well as with our collective agreements, is that those seeking protection from discrimination must file their complaint under the grounds of “sex” or “disability.”

While there have been some progressive interpretations of “sex” and “disability” to allow these complaints (the major cases being Ferris, Mamela, and Sheridan), the legal definition of ‘sex’ is narrow. This makes it difficult for many people who fall under the umbrella of transgender to seek legal recourse for harassment and discrimination.

Amending our collective agreements to include gender identity and expression as prohibited grounds of discrimination is required to keep pace both with federal and provincial human rights codes, but also to include more progressive interpretations of prohibited grounds in our agreements. The Supreme Court of Canada has held that parties to a collective agreement may negotiate non-discrimination provisions which differ from those in human rights legislation, where the effect is to provide greater protection for employees under the agreement.

Employers have a legal obligation to provide a safe workplace that is free from discrimination. Unions and employers can work together to ensure a workplace that is free from discrimination – one important way is via collective bargaining. By improving the list of prohibited grounds of discrimination, the parties can educate the members, making it clear what is not acceptable within the workplace, and provide a recourse mechanism if discrimination does occur.

Unions have a duty to fairly represent all members. Over the years unions have made progress in the fight for equality and justice for many groups. Transgender members are looking to their union to help them in their battle. The duty to accommodate also falls on both unions and employers to accommodate members up to the point of undue hardship.

Having language in the collective agreement that protects members from discrimination based on gender identity and expression is one way that both unions and employers can uphold their obligations under the duty to accommodate, as well as protecting the rights of all members.



April 10, 2014