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Beyond the bathroom: Creating transgender-inclusive workplaces

While you’re here, you may wish to attend one of our upcoming workshops:

A follow-up to our popular webinar from earlier this year, “Ethical Issues in Workplace Investigations,” in this webinar, we’ll consider the unique ethical issues that arise in investigations in the education sector specifically. What is ethically appropriate (or not) as an investigator when it comes to interviewing minors, communicating with parents, and dealing with evidence from social media?

Recently, it seems like all anyone wants to talk about when it comes to transgender inclusivity is bathrooms. Questions about bathrooms dominate recent dialogues and workshops of which I’ve been a part. The US media can’t stop talking about their politicians talking about bathrooms. Large companies like Target are taking positions, leading to praise from some and calls for boycotts from others. In many cases, the focus on bathrooms allows biases and bigotry to hide behind more respectable concerns like ‘decency’ and ‘safety’. While the issue of safe access to bathrooms and change-rooms for transgender individuals is a real and important issue, you would think it was the only question relating to inclusivity that employers need to consider. In fact, there are others. If we are to create workplaces that are inclusive and respectful for employees, we need our thinking to go “beyond the bathroom”. We need to consider other issues.

For example, one question that comes to us from employers time-to-time relates to pronoun use. Some employers wish to be respectful and use the pronouns of their employee’s lived gender identity but recognize that the options for pronouns extend beyond either he or she. For example, some individuals identify with gender-neutral pronouns such as they or zie. If you’re not sure which pronouns one of your employees uses, avoid making assumptions and simply ask them respectfully, “What pronouns do you use?” And if you hear another employee use incorrect pronouns with one of their colleagues, follow up with them.  If it persists, address the situation. Deliberate misuse of pronouns is both disrespectful and can be a form of harassment contrary to the Ontario Human Rights Code.

Another consideration for employers is the impact of their requirements during the hiring process on potential transgender applicants. For example, a 2011 study by Trans PULSE found that 50% of Trans PULSE respondents said they couldn’t secure academic transcripts with their current names and genders and 28% could not obtain letters of reference with their current names and genders. Thus, applicants may be put in the position of either failing to provide required information or having to share their personal histories at stage one of a hiring process. While employers will continue to require references and proof of academic qualifications, several factors could help to minimize or eliminate any negative impacts on transgender applicants of these requests: the timing of the requests, flexibility regarding format, explicit reference to gender identity and expression protection in publicly available job postings and organizational policies, and well-trained hiring panels.

A third example relates to dress codes, which may be a legitimate requirement of employees but which should be utilized in a manner that does not negatively reinforce gender stereotypes or exclude transgender employees. Accommodation relating to gender expression should be built into any dress code requirements and transgender employees should be permitted to wear the uniform of their lived gender identity. When implementing dress codes, consider whether gender specific uniforms are even necessary, or whether a general dress standard could achieve your goals. Ideally, similar options can be made available to all employees across the gender spectrum.

For employers seeking to make their workplaces more inclusive, there is a wealth of information available online, produced by human rights commissions, LGBT advocacy organizations, or other employers who have taken the lead in this field. By making a proactive effort to update policies and expand training programs, organizations can ensure that they move beyond the bathroom and become leaders in this area of inclusivity.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.