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  • Writer's pictureThe Moot Times UCalgary Law

Non-binary Rights are Human Rights

By Athina Pantazopoulos

This summer, the British Columbia Human Rights Tribunal (HRT) ruled on a case of workplace discrimination in violation of s. 13 of the Human Rights Code (BC), which may result in huge positive impacts for the recognition of rights for transgender and non-binary persons throughout Canada. The tribunal found that refusing to respect, or failing to protect, proper pronoun use for nonbinary workers in the workplace is a violation of the Human Rights Code.

While there have been several important Canadian cases recognizing the rights of transgender individuals to not be denied services, accommodation, or employment on the basis of gender, it is still a lived reality that many trans and non-binary individuals struggle to have their gender respected and affirmed in much of their daily life. This case places an import emphasis the rights of trans, and specifically non-binary trans individuals to have their pronouns respected in the workplace, with specific focus given to they/them personal pronouns.

The discussion surrounding the “singular they” has evolved greatly in Canadian society in a relatively short period of time. What was once considered a purely grammatical debate has become a nuanced discussion about what some believe amounts to recognition of the importance of gender inclusive language. Many workplaces and professional organizations across Canada have adopted gender inclusive terms in their written material, favouring “they” and “them” over “he/she”.

When asked to use they and them pronouns when referring to a specific individual, there is still some struggle, especially for those who have not encountered a person using these as their primary pronouns before.

The Case

In the BCHRT case of Nelson v. Goodberry Restaurants Group, Jessie Nelson, a former server at a restaurant owned by Goodberry Restaurants Group on the Sunshine Coast, was terminated from their job unexpectedly after an argument with a coworker. The HRT ruled that Jessie’s gender was a – if not the – contributing factor in their termination.

Jessie is a non-binary person who uses they/them pronouns. While several employees struggled to correctly use Jessie’s pronouns in all situations, most made an effort to use the correct pronouns or to correct themselves when they made mistakes.

One employee, Mr. Gobelle, continually misgendered Jessie and used gendered nicknames with which Jessie was not comfortable. This behaviour continued even after several requests by Jessie to use their correct name and pronouns, and a discussion with the restaurant manager. The manager, Mr. Kingsberry, was generally supportive of Jessie’s requests to have their pronouns respected. However, when Jessie asked him to address Mr. Gobelle’s behaviour, they were told that it wasn’t a good time to bring it up, and that they would address these complaints with Mr. Gobelle at a later time. When Mr. Kingsberry failed to address Mr. Gobelle’s behaviour, Jessie Nelson confronted him on their own, which resulted in a heated argument.

Jessie was terminated shortly after this argument, and when they asked for the reason behind their termination, they were told that they did not “fit well with the rest of the team” and that their personality was too “militant”. These reasons were interpreted by Jessie to mean that they were terminated because of their continued efforts to have their gender properly recognized, and the HRT agreed.

Recognition of Non-binary Identities

While the judgment in this case is well worth reading, the HRT’s decision is much more interesting in its implications for the greater recognition of the rights of non-binary individuals to be protected from discrimination in BC, and in Canada as a whole.

The decision of HRT member Devyn Cousineau stressed the legitimacy of Jessie’s pronouns, and the responsibility of their employer to ensure that these pronouns were respected.

Pronouns are an important part of a person’s sense of self. This is recognized in human rights legislation across jurisdictions through prohibitions of discrimination based on gender. While cisgender individuals are not often confronted with the consequences of having this fundamental aspect of individually questioned and denied, this is a daily reality for transgender individuals. Non-binary people such as Jessie Nelson face additional difficulty with they/them pronouns when others fail to recognize these pronouns as legitimate and default to “she” or “he”. Cousineau’s decision affirms in law that they/them pronouns are to be treated with the same respect as any others. Jessie’s pronouns are immediately accepted by the HRT and the necessity of respecting them is clearly articulated. The decision is definitive: using correct pronouns is not an accommodation, it is a basic obligation of the employer.5

The HRT decision also addressed the common excuse that an individual is “just old fashioned” or confused and therefore cannot be expected to use correct pronouns. Cousineau did recognize in her decision that many people are approaching the concept of “gender-neutral” pronouns for the first time and are not in the habit of using them effectively but asserts that because this ignorance comes at the expense of trans and non-binary people there is an obligation to make a legitimate effort. While this was said in the specific context of workplace discrimination, the precedent can be applied broadly to all cases of discrimination through misgendering and sets a standard that excuses of ignorance will not be accepted where misgendering is clearly careless or deliberate.

It is important to note that there is an understanding expressed by the HRT and by Jessie Nelson themself that mistakes in pronoun usage are to be expected. Making these mistakes is not discrimination in and of itself, especially when accompanied by good faith efforts to acknowledge and correct these mistakes as they occur. Even in such cases, misgendering can be a painful and demoralizing experience, so when it is clear that there is no good faith effort, it is the duty of the employer to step in and prevent further harm from occurring.

Responsibility to Act

The HRT found that Jessie’s manager and employers failed in their duty to protect Jessie’s right to work in an environment free of discrimination. By stressing the critical duty to correcting misgendering in the workplace, the HRT is acknowledging the necessity of recognizing and protecting non-binary rights.

The HRT’s decision commented at length about the daily difficulties faced by trans and non-binary individuals as members of one of the most marginalized groups in Canadian society. The prejudices faced by transgender and non-binary individuals lead to serious barriers in society and can result in severe consequences to the mental and physical health of these individuals. Because of this, cases of discrimination against transgender and non-binary individuals need to be addressed with urgent and immediate action.

The responsibility to address transgender and non-binary discrimination, as with all other workplace discrimination, rests primarily with the employer and not with the targeted individual. Jessie’s employers and managers were, in many respects, committed to creating an inclusive workplace. However, they did not seem to recognize Jessie’s complaints as serious complaints of discrimination, and they failed to act on them in a timely manner or in any meaningful way that addressed the problem at hand. By failing in their duty to provide Jessie with a safe workplace, the management forced Jessie into a position where they felt the need to take it upon themself to address the discrimination on their own.

Jessie consistently went out of their way to assert their rights to have their pronouns recognized and used correctly in the workplace, even when doing so put them in situations of conflict. Their employer saw this as a personality problem between two parties, rather than for what it was. It was a demand for equal treatment.

Non-Binary Rights in Alberta

As mentioned above, the Alberta Human Rights Act mirrors many of the provisions in the Human Rights Code (BC). Just as the BC legislation was amended in 2016 to expressly confer protection against discrimination based on “gender identity and expression”, the Alberta legislation was amended in 2015 to confer those same protections based on “gender, gender identity, and gender expression”. These amendments show an equal commitment in both provinces to address discrimination against the transgender community. Non-binary individuals in Alberta should know that they are entitled to the same rights of protection against discrimination as cisgender individuals and should look to Jessie Nelson’s case to get a better idea of how those rights might be protected in Alberta.

In the legal profession in particular, the Law Society of Alberta has shown its own consideration toward questions of gender and equality. In its online resource center, the Law Society provides a guide to “Fostering a Healthy Workplace for the LGBTQ Community”, which includes suggestions for ways the legal community can take steps to make our profession inclusive to all. Some of these suggestions are as simple as incorporating gender inclusive language into everyday speech, or learning about the correct use of gender-neutral pronouns.

To end on the words of Devyn Cousineau, “using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using correct pronouns validates and affirms they are persons who are equally deserving of respect and dignity.”

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