Discrimination based on gender identity
A guideline developed under The Human Rights Code
The Manitoba Human Rights Commission (the “Commission”) is an independent agency of the Government of Manitoba responsible for administering The Human Rights Code (“The Code”).
The Code sets out a complaint process and mandates the Commission to promote human rights principles and educate the public about their rights and responsibilities under The Code. The Code has special status over all other laws of the Province of Manitoba.
Section 5 of The Code authorizes the Commission to prepare and distribute guidelines to assist in the understanding and application of The Code. These guidelines assist the public in understanding how to comply with The Code. They represent the Commission’s interpretation of The Code at the time of publication.
This guideline sets out the Commission’s interpretation of the protections in The Code with respect to discrimination on the basis of gender identity. If there is any conflict between this guideline and The Code, The Code prevails.
Discrimination based on gender identity
The Commission interprets gender identity broadly, to include the concept of gender expression.
Gender identity is a person’s deeply felt internal and individual experience of gender. Gender refers to a system of classifying people, often based on their assigned sex. Gender identity is not restricted to classifying a person as “man” or “woman” and can include a broader spectrum of identities.
Gender expression is the way a person presents and communicates gender. Gender can be expressed through clothing, speech, body language, hairstyle, or voice. It is also expressed by emphasizing or de-emphasizing bodily characteristics or behaviours that are associated with masculinity and femininity. The ways in which gender is expressed are culturally specific and may change over time.
The division of gender into masculine or feminine is often referred to as a binary classification or the gender binary.
Gender identity should not be confused with, or considered part of, sexual orientation. A person’s sexual orientation refers to the potential for emotional, intellectual, spiritual, intimate, romantic, and/or sexual interest in other people, often based on their sex and/or gender. This is also known as attraction and may form the basis for aspects of one’s identity (e.g. gay, lesbian, bisexual, queer, asexual, heterosexual, etc.), and/or behaviour.
The Code prohibits discrimination and harassment on the basis of a person’s actual or perceived gender identity. The Code also prohibits retaliation against a person because they have made a complaint under The Code, are participating in a proceeding under The Code or are otherwise trying to enforce their rights under The Code. This is called reprisal.
Discrimination may be directed towards one individual. A policy or practice may also systemically discriminate, meaning it discriminates against a group of persons on the basis of gender identity.
It is possible to discriminate without intending to violate the law. A policy or practice that seems neutral may have a greater negative effect on some people based on their gender identity, without justification or reasonable cause.
- a hospital’s practice of assigning patients having a particular surgery to a given ward, which results in patients of a particular sex being grouped together, regardless of whether that is consistent with a patient’s gender identity
- a public swimming facility that has male and female washrooms/changing facilities only
- a hotel’s reservation system that requires guests to identify as male or female
- a license application that requires a person to choose an honorific from a list of “Mr.”, “Mrs.”, or “Ms” only
Discrimination in the workplace
The Code prohibits discrimination in all aspects of full-time, part-time, permanent, casual or probationary employment and applies to paid and unpaid or volunteer employment.
Employers should not treat a person differently because of their gender identity, unless it is reasonable to do so.
Employers may have bona fide or reasonable occupational requirements or qualifications for a job that result in treating people differently; however they must be carefully considered and able to be justified. An employer must be able to show that the requirement has been established in good faith and is reasonably necessary for the safe or efficient performance of the job.
It is difficult to conceive of jobs for which it would be justified to exclude or discriminate against a person on the basis of their gender identity.
Discrimination in the workplace on the basis of gender identity typically looks like denying a person opportunities such as a job or promotion in part, because of their gender identity, or restricting access in the workplace to a person because of their gender identity.
- an employee is not hired or promoted, in part because of their gender identity or gender expression
Employers have a duty to reasonably accommodate the special needs of a person based on their gender identity, or any other protected characteristic. These requests must be assessed on a case-by-case basis. An employer has a responsibility to consider the specific request, ask for more information to substantiate it if necessary and assess how to offer an accommodation that is reasonable and does not cause undue hardship.
- a trans employee may request access to a gender-neutral washroom during the period that they are transitioning or until they feel comfortable using the washroom that aligns with their gender identity
- a trans employee may request to immediately access the washroom that aligns with their gender identity as part of their transitioning
- an employee that identifies as gender non-binary may request to use a gender neutral washroom
Employers must ensure a harassment-free work environment, which includes taking reasonable steps to terminate harassment if it is brought to the employer’s attention, or the employer ought reasonably to be aware of it.
- a transgender employee may complain that his co-workers have been referring to him by derogatory names, making inappropriate jokes and refusing to refer to him by male pronouns. The employer must take steps to investigate the situation and determine if there is harassment in the workplace and then take reasonable steps to address it and ensure it ceases
Discrimination in housing
The Code prohibits discrimination with respect to leasing, renting or purchasing residential or commercial premises.
Landlords must not treat a person differently because of their gender identity, unless it is reasonable to do so.
Landlords may have bona fide or reasonable cause to treat people differently; however those situations must be carefully considered and able to be justified. A landlord must be able to show that the seemingly discriminatory policy or practice has been established in good faith and is reasonably necessary for the safe or efficient operation of the premises.
Discrimination in housing on the basis of gender identity typically involves not renting to a person wholly or in part because of their gender identity, not maintaining premises in part because of the tenant’s gender identity, or evicting a person in part because of their gender identity.
It is difficult to conceive of a situation in housing in which it would be justified to exclude or discriminate against a person on the basis of their gender identity.
- a tenant’s lease is not renewed because they identify as gender non-binary as do many of their friends who frequently visit the unit
- an application form that requires a person to identify themselves by an honorific such as “Mr.”, “Mrs.”, “Miss” or “Ms”. The landlord must consider whether or not this information is necessary in the first place and/or whether adding an option for “Mx” or “Other” would be appropriate.
Landlords and condominium corporations have a duty to reasonably accommodate the special needs of a person based on their gender identity, or any other protected characteristic. These requests must be assessed on a case-by-case basis. A landlord or condominium corporation has a responsibility to consider the specific request, ask for more information to substantiate it if necessary and assess how to offer an accommodation that is reasonable and does not cause undue hardship.
- a transgender tenant may request that their name be changed on the building directory even though they have not yet legally changed their name. The landlord must consider whether or not it would cause an undue hardship to utilize the tenant’s chosen names on the directory. It is unlikely that this would cause an undue hardship.
Landlords must not harass a tenant or potential tenant because of their gender identity, and landlords and condominium corporations must ensure that their buildings are harassment-free.
- a trans unit holder complains that every time they use the shared laundry facilities, other condo unit holders make derogatory comments towards him and comment on his clothing being washed. This may be harassment.
Discrimination in services
The Code prohibits discrimination with respect to any service, accommodation, facility, benefit or program available or accessible to the public or to a section of the public. Examples of services include stores, theatres, restaurants, police services, sports associations, healthcare services, government services, food banks, schools, rehabilitation programs and insurance services.
Service providers must not treat a person differently because of their gender identity unless it is reasonable to do so.
Service providers may have bona fide or reasonable cause to treat people differently; however those situations must be carefully considered and able to be substantiated. A service provider must be able to show that a seemingly discriminatory policy or practice has been established in good faith and is reasonably necessary for the safe or efficient operation of the service being provided.
It is difficult to conceive of situations in which it would be justified to exclude or discriminate against a person on the basis of their gender identity.
Discrimination in services on the basis of gender identity typically involves asking a person to identify their gender identity when it is not necessary or disclosing information about a person’s gender identity when it is not necessary.
- an online restaurant reservation service requires a person to identify as “male” or “female” when booking a table. The restaurant may suggest that this is to assist the hostess in seating patrons more efficiently, but it is unlikely that this would be justified.
Service providers also have a duty to reasonably accommodate the special needs of a person based on their gender identity, or any other protected characteristic. These requests must be assessed on a case-by-case basis. A service provider has a responsibility to consider the specific request, ask for more information to substantiate it if necessary and assess how to offer an accommodation that is reasonable and does not cause undue hardship.
- a trans student may request that her teachers and peers refer to her by a name that is not her legal name. The school must consider whether or not it would be an undue hardship to do so and whether there are certain situations in which it must utilize the student’s legal name (i.e. a report card).
- a trans patient whose legal first name does not accord with their gender identity requests a medical clinic to stop calling out patients’ names as they appear on their Manitoba Health registration card.
Creating a gender inclusive environment
Working proactively to ensure equality means thinking ahead and feeling comfortable with the rights and responsibilities in The Code.
Employers, landlords and service providers should carefully consider their policies and practices to ensure that there is enough flexibility to ensure the rights and dignity of all staff, employees, tenants and patrons. This means considering whether a policy or practice denies or limits a person’s access to opportunities or benefits because of their gender identity or demeans and isolates a person on the basis of their gender identity.
Flexibility with respect to policies and referring back to basic principles of respect, dignity and safety to ensure equality for all persons are essential.
1. The first step in ensuring equality is to examine policies and practices to identify barriers based on gender identity.
2. The second step in ensuring equality is to establish a process to assess and respond to request for accommodation whether on the basis of gender identity or some other protected characteristic.
Although issues often arise around access to gender specific washrooms or change rooms or to gender-neutral facilities, there are many other ways in which transgender persons may feel discriminated against.
Language changes over time to reflect today’s society, so using the appropriate terminology can be a means of ensuring respect and inclusivity. Terminology throughout the gender spectrum has been evolving and changing.
The following terms are not intended to be exhaustive but may be useful in understanding and developing policies or practices to ensure equality and uphold your responsibilities under The Code:
Cisgender refers to a person whose gender identity aligns with conventional social expectations for the sex assigned to them at birth. For example, a cisgender man is someone who identifies as a man and who was assigned male sex at birth.
Sex / Assigned Sex is the classification of a person as male, female or intersex based on biological attributes, such as external genitalia, reproductive organs, chromosomes and hormones. Generally, individuals are assigned a sex at birth by a medical professional, often on the basis of their external genitalia.
Sex / Gender Binary is the notion that there are only two possible sexes (male/female) and genders (man/woman), that they are opposite, distinct and uniform categories, and that they naturally align as male/man and female/woman (in other words, that gender is determined by sex).
Transgender or Trans refers to a person who does not identify either fully or in part with the gender conventionally associated with the sex assigned to them at birth. Transgender (or trans) is often used as an umbrella term to represent a wide range of gender identities and expressions (e.g., a person assigned male at birth who expresses femininity and identifies as a woman, a person who identifies as gender queer or gender fluid).
Transsexual refers to a person who does not identify with the gender conventionally associated with the sex assigned to them at birth. Many transsexual people feel a strong need to access medical transition to physically alter their bodies (e.g., hormone therapies and/or gender affirming surgeries).
Two Spirit is an umbrella term that reflects the many words used in different Indigenous languages to affirm the interrelatedness of multiple aspects of identity, including gender, sexuality, community, culture and spirituality. Prior to the imposition of the sex/gender binary by European colonizers, many Indigenous cultures recognized Two Spirit people as respected members of their communities and accorded them special status as visionaries, healers and medicine people based upon their unique abilities to understand and move between masculine and feminine perspectives. Some Indigenous people identify as Two Spirit rather than, or in addition to, identifying as LGBTQ.
Need more information?
For further information on this guideline or The Human Rights Code, please contact the Manitoba Human Rights Commission at firstname.lastname@example.org.
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Revised: October 2016