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As awareness and understanding of gender diversity grows, more transgender, non-binary, and gender non-conforming1 persons are feeling supported and empowered to express their gender identities in the workplace. Accordingly, more and more employers are taking proactive steps to create workplaces that are inclusive and welcoming for employees who are transgender, non-binary, and gender non-conforming.
What’s in a Pronoun?
A key aspect of this is changing how gendered language is used in the workplace, particularly regarding pronouns. For many people, pronouns are a way to express their gender identity. It is becoming increasingly prevalent for employers to encourage or ask that employees share the pronouns that reflect their gender identities. People who are transgender, non-binary, or gender nonconforming may choose to use gender-neutral pronouns such as “they/them” instead of the masculine “he/him” or the feminine “she/her.” In many workplaces, it is common to see a person’s pronouns listed in their email signature or for meeting participants to share their pronouns when introducing themselves.
Using a person’s preferred pronouns creates inclusion, makes people feel respected, and affirms their gender identity. Normalizing the sharing of pronouns in the workplace helps transgender and gender non-conforming employees to not feel singled out when they share theirs. It also encourages employees to stop making assumptions about others’ gender identities.
The use of gendered pronouns is extremely pervasive. In the English language, most people automatically default to using gendered pronouns – “he/him” or “she/her” – even when they do not know a person’s pronouns. French is not a gender-neutral language and does not have an equivalent to the gender-neutral pronouns “they/them.”2 Making an assumption about which pronouns a person uses in either language may cause transgender and gender non-conforming persons to be misgendered. Misgendering3 refers to intentionally or unintentionally identifying the gender of a person incorrectly, such as using a pronoun or label that does not align with the person’s gender identity. The experience of misgendering may be hurtful, upsetting, disrespectful, or embarrassing.
Misgendering, Pronouns, and Discrimination
As of 2019, all Canadian provinces and territories, along with the federal government, have legislation that prohibits discrimination in employment on the grounds of gender identity and gender expression. The law in this area is constantly developing as awareness of gender diversity evolves and new issues arise. An example of this development is the recent Human Rights Tribunal of Ontario (the “Tribunal”) decision in EN v. Gallagher’s Bar and Lounge 4, in which the Tribunal found that misgendering transgender and gender non-conforming employees constituted discrimination in employment under the Ontario Human Rights Code (the “Code”).
The three applicants in this case identified as gender queer or non-binary trans and used “they/them” pronouns. The applicants told their employer that their pronouns were “they/them,” but the employer persisted in misgendering the applicants. When the applicants expressed concern about the employer’s behaviour, the employer was dismissive of their concerns and insinuated that the applicants were being oversensitive about his improper use of their pronouns.
The Tribunal noted that the protected grounds of gender identity, gender expression, and sex in the Code includes gender queer and non-binary trans identities. The Tribunal found that the employer discriminated against three employees because of their gender identity, gender expression, and sex by misgendering them. Furthermore, the Tribunal held that the employer’s failure to appropriately address the applicants’ complaints of discrimination in the form of misgendering was adverse treatment in their employment.
Following this decision, employers should be aware that failing to use a transgender, non-binary, or gender non-conforming employee’s pronouns may be found to be discriminatory. Additionally, employers must know that they have an obligation to take employees’ allegations of discrimination in the form of misgendering seriously and promptly investigate and address such concerns.
Does Intention Matter?
In EN v. Gallagher’s Bar and Lounge, the Tribunal found that the employer discriminated against the applicants by intentionally misgendering them. However, employers should be mindful that intent or motive to discriminate is not a necessary element for a finding of discrimination, and it is sufficient if the conduct has a discriminatory effect.5 Therefore, in some situations, unintentional misgendering may constitute discrimination. When employers are investigating allegations of misgendering, they should be mindful not to minimize the allegations as non-discriminatory simply because the incidents of misgendering were unintentional and without malice. In other words, employers should treat all allegations of misgendering as serious and thoroughly investigate them.
It is important to acknowledge that changing the use of pronouns will be a learning process for many employees and it is likely that misgendering will occur, even when employees have the best of intentions. As a best practice, employers may want to consider establishing clear expectations for pronoun usage and provide guidance on how to handle mistakes with tact and respect. It is critical for employers to create a work environment where employees feel comfortable acknowledging their errors and are encouraged to do better.
1 For more information on the terms used in this blog post, refer to the Ontario Human Rights Commission’s, “Glossary for understanding gender identity and expression”
3 Human Rights Campaign, “Why We Ask Each Other Our Pronouns”
4 2021 HRTO 240 (CanLII), https://canlii.ca/t/jf77h
5 Bruce Best, “The relevance of intent in workplace investigations”
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