Overview
In British Columbia, the Human Rights Code (the “Code”) protects individuals from being discriminated against based on specific characteristics or grounds. Gender identity, gender expression, and sex-based discrimination complaints are three different but related grounds which are protected by the Code. In this article, we will first examine the general test for proving discrimination, and then explore what is required to prove that these three individual characteristics can lead to discrimination. We will also discuss some important comments made by the Human Rights Tribunal about these issues.
Proving Discrimination Generally
To prove discrimination in British Columbia, a Complainant must establish the following: (1) that the person has the protected characteristic of gender identity, gender expression or sex; (2) that she person experienced an adverse impact regarding a service, facility, or accommodation; and (3) that the protected characteristic(s) was a factor in the adverse impact.
Gender Identity
Gender identity is defined in British Columbia as a person’s subjective perception of themselves as male, female, both, in between, or neither. It includes people who identify as transgender. A person’s gender identity can be the same or it may be different from the sex a person is assigned at birth.
Gender Expression
Gender expression is how a person presents their gender. The presentation of gender through gender expression can be done through behaviour and appearance, including dress, hair, make-up, body language, and voice. This can also include their name and pronoun, such as he, she, or they. Importantly, how a person presents their gender may not necessarily reflect their gender identity.
Gender Identity or Expression Discrimination
Both the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission recognize that gender identity and gender expression were added as protected grounds in both jurisdictions to ensure that the rights of transgender and other gender non-conforming persons were protected under their respective legislation. There is recognition that these communities have suffered social, economic, and historical disadvantage, and have unique rights that are worthy and important to protect.
The British Columbia government provides a number of helpful examples of gender identity or expression discrimination, which are as follows:
- A person is called offensive names due to their gender identity or expression;
- A person is exposed to inappropriate jokes, images, emails and social media on the basis of their gender identity or expression;
- A person is denied services where their gender identity or expression was a factor in the denial.;
- A person is fired, not hired, or not promoted where their gender identity or expression was a factor in the decision; and
- A person is denied rental housing where their gender identity or expression was a factor in the denial.
Recent case study: Sandve v. British Columbia (Ministry of Public Safety and Solicitor General) (c.o.b. Surrey Pretrial Services Centre), 2021 BCHRT 29
In the above referenced decision, the Complainant established there was a reasonable prospect of success for proving discrimination on the basis of gender identity, gender expression, and sex. Ms. Sandve is a transgender woman who disclosed her gender identity after being placed in a prison which imprisoned cis-gendered males. Ms. Sandve self-identified as a woman no later than November 20, 2018. She requested to be transferred to a women’s prison. She was not transferred during her incarceration, she was required to wear men’s institutional clothing (despite requesting that she wear women’s clothing), and experienced delays in receiving items to express her gender. Ms. Sandve’s also made contemporaneous written complaints to BC Corrections about her timely access to health care and their transgender policy, as well as sexually harassing and derogatory comments she and another transgender inmate were subjected to.
The BC Tribunal found that there was a connection between her health care needs and her gender identity, expression, and sex. She sought the health care support required from BC Corrections to enable her transfer to the women’s prison as a transgender female. She also sought health care support required by BC Corrections for a wig and prosthetics in order to express her gender identity.
The BC Tribunal found a connection between Ms. Sandve being denied clothing worn by women inmates and her gender identity, expression, and sex. If Ms. Sandve was a cisgendered woman, she would not have been segregated to a male prison. She was also subject to frisks by male staff, unlike her cisgendered women counterparts.
The BC Tribunal also relied on earlier cases which stated misgendering can amount to discrimination. Ms. Sandve cited adverse impacts based on being misgendered or denied her ability to express her gender identity, expression, and sex, such as feeling like she felt isolated, and felt that she lost dignity and self respect related to her gender not being acknowledged, and she felt she was not treated as a woman entitled to respect.
Sex-Based Discrimination
Sex-based discrimination is understood generally to be the act of treating someone poorly or denying them a benefit because they are male, female, intersex, transgender, or because of their gender identity. Sex discrimination includes gender, pregnancy, and sexual harassment.
Discrimination on the basis of pregnancy would involve treating a woman poorly because she may become pregnant, is pregnant, or is with child. The Code makes it legal for women to nurse or breastfeed their children in public, as needed, and protects them from discrimination on that basis such as by asking a woman to cover up or breastfeed elsewhere.
Sexual harassment is defined as repeated statements or actions that are insulting and offensive and are sex or gender-related.
In Janzen v Platy Enterprises Ltd., 1989 1 SCR 1252, the Supreme Court of Canada provides the following important comments about sexual harassment, a form of sex based discrimination at para 56:
Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.
Recent development in the case law: Ms. K v. 0932008 B.C. Ltd., 2021 BCHRT 158
In this decision, the BC Tribunal rejected a line of case law which required that the Complainant prove that a reasonable person would think that the sexual harassment was objectively unwelcomed.
In the decision, the BC Tribunal approvingly cited a passage from law professor Bethany Hastie at paragraph 82:
The requirement that the complainant establish that the alleged harasser knew or ought to have known that the conduct was “unwelcome” has been widely criticized for the inappropriate burden it places on complainants, predominantly women, to avoid harassment and protest harassing conduct. The individual and transactional focus of the test also minimizes the systemic nature of sexual harassment and gender-based discrimination in the workplace, as with other contexts. Moreover … this element of sexual harassment law has further provided an entry point for gender-based myths and stereotypes to influence the legal analysis: Bethany Hastie, “An Unwelcome Burden: Sexual Harassment, Consent and Legal Complaints.” Osgoode Hall Law Journal 58.2 (2021): 419-45 [Hastie 2021] at p. 427.
With this in mind, the BC Tribunal found that while it was still necessary to show that the Respondent’s conduct was unwelcome, the BC Tribunal preferred the line of case law which provided that the Complainant can prove conduct that was unwanted by proving that the conduct had an adverse impact. In the context of employment, this would lead to detrimental impact on the work environment or adverse job-related consequences. The BC Tribunal describes the current test for proving sexual harassment as the following in relation to employment at para 93:
In summary, to find sexual harassment contrary to the Code, the Tribunal must determine that the conduct is unwelcome or unwanted. The burden on the complainant is to prove that they were adversely impacted by the sexualized conduct. If they do so, it is implicit in that finding that the conduct is unwelcome. It is open to a respondent to challenge an alleged adverse impact, so long as they do not rely on gender-based stereotypes and myths.
This decision is a good step forward in terms of smashing stereotypes such as that a woman’s autonomous decision to dress a certain way can lead to her deserving unwanted sexual touching or offensive comments or remarks. The current case law recognizes that requiring a Complainant to prove that that unwanted sexual comments, attention, or touching would be objectively unwanted by the reasonable person standard, would be overly burdensome on the Complainant and based on problematic stereotypes and gender myths.
If you are concerned that you have been discriminated against in the workplace on the basis of gender identity, gender expression, or sex, please contact Ascent Employment Law to schedule a consult. We are here to help!
