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Update on Gender Identity and Expression in the Workplace | The HR Space

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Labour, Employment and Human Rights Bulletin

The issues of gender identity and gender expression have gained much attention across the country in recent months. This is, in part, due to the increased acknowledgement of the challenges faced by transgendered people in our society including in the workplace. One of the results is that employers are being required more than ever to pay attention to these issues in the workplace, including ensuring that discrimination against transgendered employees is not tolerated and that workplace accommodations are implemented as appropriate.

On May 17, 2016, the Federal Government introduced Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code. Once enacted into law, the bill will amend the Canadian Human Rights Act by adding "gender identity or expression" to the list of prohibited grounds of discrimination. These terms were referred to in the Federal Government's news release around the introduction of the bill as follows:

Gender identity is each person's internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice.

Bill C-16 also proposes to amend the Criminal Code so as to make it a criminal offence to spread hate propaganda based on gender identity or expression. The bill passed first reading in the House of Commons on May 17, 2016.

On July 25, 2016, the BC Government passed the Human Rights Code Amendment Act which added "gender identity" and "gender expression" as prohibited grounds of discrimination under the B.C. Human Rights Code. The legislation came into force on July 28, 2016. 

These legislative amendments bring B.C. and the Federal Government in line with other jurisdictions across Canada. Seven other provinces and one territory already have legislation explicitly protecting the rights of transgendered people in their human rights legislation including Ontario, Alberta and Saskatchewan.

While the effect of the amendments is not to change the law for employers in British Columbia and those that are federally-regulated, they provide express recognition that gender identity and gender expression are protected grounds of discrimination, which will presumably increase the awareness of transgendered employees of their rights under human rights legislation. The amendments also allow individuals to file complaints specifically asserting that they have been discriminated against in their employment (as well as in other protected areas such as services) based on these grounds.

Implications for Employers

In light of the changes in the area, employers should, at a minimum, be making sure that the language in their bullying and harassment policies refers to "gender identity and expression" consistent with applicable human rights legislation. It may be appropriate to engage in a wider policy review to ensure, for example, that any workplace dress policies are legally compliant including allowing employees to dress in accordance with their gender identity. Other things to consider are staff training and raise awareness around gender identity and whether any changes are needed around bathroom use in the workplace.

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