Municipal Inclusion Symposium – March 16-17, 2017
Gender Expression, Gender Identity, and
the Alberta Human Rights Act
Terri Susan Zurbrigg
Legal Counsel
Changes to Alberta Human Rights Act
Sections 3, 4, 5, 7, 8 and 9 of the Alberta Human Rights
Act were amended in December 2015 to expressly
include gender expression and gender identity as protected
grounds of discrimination in the following areas:
- s. 3 (publications and notices)
- s. 4 (services, goods, facilities customarily available to the public)
- s. 5 (tenancy)
- s. 7 (employment practices)
- s. 8 (advertisements and applications for employment)
- s. 9 (membership in trade union, occupational association)
Gender Identity
• The Alberta Human Rights Commission
describes gender identity as follows:
• Gender identity refers to a person’s internal,
individual experience of gender, which may not
coincide with the sex assigned to them at birth. A
person may have a sense of being a woman, a
man, both, or neither
• Gender Identity is not the same as sexual
orientation, which is also protected under the
Alberta Human Rights Act
Gender Expression
The Alberta Human Rights Commission describes
gender expression as the varied ways in which a
person expresses their gender, which can include
a combination of dress, demeanor, social behavior
and other factors
Browne v. Sudbury Integrated Nickel, 2016 HRTO 62: “gender expression”
not found to apply to cis-gender male wanting to wear beards.
Gender Expression
• Rooted in social constructions and
ideas/assumptions about gender and what is
“masculine” or “feminine” (i.e. women wear high
heels, men grow beards, etc.). Includes external
characteristics and behaviours that are associated
with masculinity or femininity.
• One’s gender expression does not necessarily
coincide with one’s gender identity – cross-dressing
is a form of gender expression, but it is not
necessarily indicative of a person’s gender identity.
S. 4 – Services, accommodations, facilities
• Prohibition on denial and discrimination with respect
to services, goods, accommodations or facilities that
are customarily available to the public
• Municipalities provide many services, facilities etc.
that are customarily available to the public
• Courts and tribunals have interpreted “customarily
available to the public” broadly
• It does not mean a service must be available to the
general public – “every service has its public”
Glossary
• Gender non-conforming: refers to people whose
gender expression does not conform with the traditional
norms or societal expectations for their sex assigned at
birth
•
• Pansexual: a person who is attracted physically and
emotionally to individuals of any gender identity
•
• Gender fluid: a person whose gender identity or
expression shifts between masculine and feminine or
across this spectrum
•
Glossary
• Gender binary: the idea that gender is strictly an either/or option
for male/men/masculine and female/woman/feminine based on sex
assigned at birth, rather than a continuum or spectrum of gender
identities and expressions. The gender binary is often considered to
be limiting and problematic for all people and especially for those
who do not fit into either/or categories
• Cis-gender : a person whose gender identity is congruent with or
“matches” their sex assigned at birth
• Two-spirited (Indigenous): A term used by indigenous people to
indicate that they embody both a masculine and a feminine spirit.
Historically, in many indigenous cultures, two-spirit persons were
respected leaders and medicine people and were able to
understand both male and female perspectives.
Glossary
• Transgender or “trans” is an umbrella term that
refers to people whose birth-assigned sex differs
from their gender identity (transman, transwoman)
• Mis-gendering: Failing to refer to someone using
correct pronouns or in accordance with his/her or
their gender identity. Line between innocent
oversight and harassment or bullying.
S. 4 – Services, accommodations, facilities
Examples:
• Access to/use of buildings
• swimming pools, community centers, rec centers,
sporting facilities
• Policing services
• Retail stores, restaurants & bars, hotels
• Post-secondary education
• Condominium corporations
s. 8 – Employment Applications and
Advertisements
• No application for employment or prospective
employment can express (directly or indirectly) a
limitation or preference on a protected ground
• No oral or written inquiries that require an applicant
to provide information regarding a protected ground
(subject to a bona fide occupational requirement
defense)
s. 7 – Employment Practices
• Employers cannot refuse to employ or refuse to
continue to employ or discriminate with regard to a
term or condition of employment based on protected
ground
• Term and condition of employment has been
interpreted by tribunals as prohibiting workplace
harassment relating to a protected ground
• Duty to accommodate to the point of undue hardship
• Rights based approach vs. accommodation
Best Practices
• Remember whose rights are being accommodated.
Although employee morale is one of the factors to
consider when assessing undue hardship, this factor
must be applied with caution. Objections based on
well-grounded concerns that rights will be affected
should be carefully considered, but objections based
on attitudes inconsistent with human rights cannot
support a refusal to accommodate.
Best Practices
• Surgery is not a prerequisite for accommodation.
Not all trans people undergo surgery, and gender
identity is something that exists outside of the
surgical and medical realm.
• Allow trans employees to use chosen name; affect
name-changes on company records (without proof
of surgery or legal name change) and watch out for
gender binaries on paperwork (i.e. male or female
options only – provide additional options or “other”).
Best Practices
• The principles applying to access to medical
information have not changed: employers can
request information they require to assist in carrying
out the duty to accommodate – they should not ask
intrusive questions that are otherwise irrelevant.
• Although accommodating time off for surgery or
medical treatments related to a transition may be
required, employers should not ask for medical
notes in all circumstances (i.e. use of washroom that
accords with one’s gender identity).
Best Practices
• Mis-gendering as form of harassment – be
aware and know what can be harassment vs.
honest mistake
• Accept the use of alternate pronouns and
honorifics (ze, zir, they, Mx., etc.)
Best Practices
• Create policies that encourage inclusion
• Lead by example to demonstrate and role
model respect for all employees
• Protect privacy and confidentiality
• Educate management and staff
• Be aware of what is happening in the workplace
• Provide safe access to washroom and changeroom facilities
Questions?
Thank you!