written by Cara-Lea Suttie - Student and Graduate Employment and 2SLGBTQIA+ peer
Transgender people face discrimination in many areas of society, and unfortunately, the workplace can be one of those places. That means it is very important for trans people to know what their rights are when it comes to work.
While I will be addressing the laws for trans folks in Ontario, Canada specifically – I encourage all trans people to investigate the laws in their area. I have included some resources at the bottom of this post for that purpose.
In the province of Ontario, both provincial and federal human rights laws state that everyone has the right to be treated equally and without discrimination in the workplace. This specifically includes discrimination or harassment based on gender identity and gender expression. Employers are not allowed to discriminate or harass you if you are:
- Living as a gender that is different than the one you were assigned at birth
- You identify as non-binary or transgender
Discrimination can take many forms, and it can range from being very obvious and overt to quite subtle. According to the Ontario Human Rights Commission,
To establish discrimination under Ontario’s Human Rights Code, a claimant must show that:
- they have a characteristic protected by the Code (e.g. race)
- they experienced adverse treatment/impact within a social area (for example, in accessing a service, housing or employment)
- the protected characteristic was a factor in the adverse treatment or impact.[1]
To put this in simple terms, to make a claim of discrimination under the Ontario Human Rights Code, a person must be able to show that they fall into one of the identities that is considered protected by the code – in this case, gender identity or expression and that they were treated badly because of this identity.
Much like discrimination, harassment can take many forms, both overt and subtle. However, the law is very clear that employers are required to both respond to and prevent harassment in the workplace. They must take it seriously if you are being harassed by a co-worker or a superior.
Within the law, it is also made clear that your employer is expected to ensure all employees are treated equally and make reasonable accommodations to that end. That does not mean your employer is required to follow every request you have, you will need to be willing to co-operate and potentially make compromises, and an employer may not have to accommodate you if they can prove it would cause undue hardship.[2]
If you are being discriminated against or harassed and your employer is not taking your concerns seriously or making reasonable accommodations, you have a variety of options for how you handle it. The first step will be to record, in as much detail as possible, the treatment you are experiencing. No matter what route you choose to take, this record will be necessary. Once you have a detailed record, you can make the decision as to who you wish to talk to and how you want to move forward. Generally, it is best to go to your immediate supervisor as a starting point, however if the supervisor is a person who is mistreating you, that may not be an option. Instead, you can go to someone higher up than your supervisor, a union rep if you are unionized, or your HR department. If speaking to someone within your company or union are not possible for you, or if you have been fired due to discrimination, taking legal action is possible. In this case, you should start by reaching out to the Human Rights Legal Support Centre (https://hrlsc.on.ca/) and they can help you assess your situation and figure out your next best steps. Their services are free, no matter how much money you make.
It is important to note that if you pursue legal action through a Human Rights Tribunal in Ontario, there is a deadline of one year from the date you were discriminated against.
Standing up against discrimination and/or harassment in the workplace can be a daunting proposition. While it matters that people take the steps to stop workplace discrimination and harassment, it is also highly important that you make the decisions and take the steps that are right for you. Above all else, make the choices that keep you as safe as possible.
Resources for those outside Ontario
- Canadian trans friends outside of Ontario, please check out Pride At Work (https://prideatwork.ca/programs/resources/)
- American trans friends, please check out the Transgender Law Center (https://transgenderlawcenter.org/resources/employment/)
- Australian trans friends – check out the Trans Hub (https://www.transhub.org.au/work)
- UK trans friends – check out the LGBT Foundation (https://lgbt.foundation/trans-resources/)
