Transgender employees face many challenges in the workplace – not the least of which are vulnerability to and fear of discrimination. But there are many ways in which an employer can support its trans employees while meeting its legal obligations to all of its employees. Here are five ways in which employers can support transgender employees in the workplace.
An employer doesn’t need to know everything about the LGBTQ community. But it should have a basic understanding of terminology and of the big picture.
A transgender person is someone whose own gender identity or expression is different from the gender assumption others make based on that person’s sex. Sex identifies the strictly biological description of a male or female; gender is much broader, encompassing biological, cognitive and social aspects of a human being including identity, expression and the expectations of others. A person’s gender identity is how that person sees and feels about him or herself. The gender identity for many people corresponds with their biological sex; for transgender people, however, gender identity and sex don’t align with one another. Some, though not all, transgender people will undergo gender reassignment (or transition) to align their sex with the gender role in which they live and better reflect their gender identity. Transgender people in the workplace may have already transitioned, just be beginning the reassignment process, or be somewhere in the middle.
Human rights legislation prohibits employers from discriminating against an employee – treating them differently, directly or indirectly, with an adverse effect – based on certain personal characteristics listed in the law. The personal characteristics (or grounds) that human rights legislation protects varies depending on the applicable legislation (which province or territory or the federal legislation), but they are generally similar. Differential treatment of an employee in the workplace because of the employee’s biological gender, or because of attributes associated with their gender, regardless of their transition status, constitutes discrimination and is prohibited by law. Some human rights legislation expressly states that discrimination is prohibited on the grounds of gender identity or gender expression; for examples, see the Nova Scotia Human Rights Act at section 5(na-nb), the Prince Edward Island Human Rights Act at section 1(d)) and the Newfoundland and Labrador Human Rights Act at section 9(1). However, even if the legislation doesn’t specifically include this ground, the grounds of “sex” and/or sexual orientation will include it.
One of the most important things an employer can do to support trans employees in the workplace is to implement LGBTQ policies and provide visible support. Trans employees seek out employers that have a well-implemented LGBT policy. A 2012 survey by the APLS Group, “Transgender In the Workplace”, found that 51% of trans individuals would not work for an employer who does not have a LGBTQ staff policy in place. In particular, a trans workplace policy should incorporate transition guidelines. These guidelines should be flexible enough to meet the particular needs of a transitioning employee, while specific enough to provide a consistent framework that eliminates confusion and mismanagement. You may want to address issues like these in the guidelines:
Employers should also update their employee orientation programs on discrimination and harassment to include gender identity and LGBTQ policies, and review all existing workplace policies to ensure they are gender-neutral. For example, a workplace dress code policy may appear neutral on its face, but have an adverse effect on transgender employees; it often takes minimal revision to transform such policies into gender-neutral ones.
One of the most crucial ways an employer can support an LGBTQ employee through transition is by communicating to other employees in the mutual workplace. When an employee is transitioning, a message of support from senior management addressed to co-workers, and specifically those who work in direct contact with the transitioning employee, announcing the employee’s plan to transition, communicating its values and relevant policies promotes a diverse and harassment-free workplace and can set a positive tone about the transitioning employee.
Other employees may express discomfort with a co-worker’s transition. This sense of discomfort is natural and may be attributed to a lack of education, grief surrounding the loss of an existing relationship, uncertainty surrounding the future relationship or religious beliefs. Regardless of the source of the discomfort, it’s important for the employer to address the transitioning employee’s co-workers’ feelings and concerns through education and discussion. The employer should handle concerns based on religious beliefs by referring the employee to human rights legislation and its harassment policy intended to ensure equitable treatment of, and compliance with the employer’s legal obligation to, all employees. Additional education and training around workplace respect can often help co-workers’ understanding and reduce their discomfort.
To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour and Employment Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.
McInnes Cooper prepared this article for information; it is not legal advice. Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2016. All rights reserved.
About the author:
Ryan Baxter is a member of McInnes Cooper’s Labour and Employment Team and practices in the areas of labour and employment, immigration and litigation. He regularly advised and represents clients in all manner of employment matters, including human rights compliance and complaints. You can reach Ryan at firstname.lastname@example.org.