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Jade Pichette, photographed at Pride at Work’s Toronto headquarters, says that while legal protections for transgender and non-binary people in the workplace have come a long way, ‘we are far from equity.’Tijana Martin

Last year, Adrienne Smith argued a case before the BC Human Rights Tribunal that, in their own words, was “a struggle.”

“I wish it had not been necessary to argue it,” says Smith, a Vancouver-based transgender rights activist and lawyer who runs a boutique firm specializing in law that affects marginalized communities. “But really, [my client’s] working conditions are quite common.”

The case concerned a server named Jessie Nelson, a gender fluid, non-binary transgender person who asked their employer to use they/them pronouns for them at the restaurant they worked at. While most co-workers complied with this request, there was one holdout: a bartender, who repeatedly used she/her pronouns for Nelson and provocatively gendered nicknames like “sweetheart” and “honey.”

Eventually, this resulted in a verbal altercation between Nelson and the person deliberately misgendering them, although the result was not what you’d expect. It was Nelson, not the bartender, who was fired before their next shift.

“The manager told Jessie, ‘You asked for too much too soon,’” says Smith, who represented Nelson in front of the tribunal, where they were eventually awarded $30,000 for “injury to dignity.” For Smith, the most important thing about this case is how it advanced the requirements for trans inclusion in workplaces.

“The most encouraging part of the decision [happened] when the human rights tribunal member [said] respecting trans people is not an accommodation,” says Smith, referring to existing workplace accommodation standards such as not requiring a pregnant person to do heavy lifting. “The member said more than this [is] required. We do need to refrain from saying offensive things to transgender people, but we must also actually recognize and affirm their gender identity and expression.”

Ignorance around obligations to transgender employees

As Smith alluded, Jessie Nelson’s experiences as a transgender person in the workplace are not uncommon. Smith, who is transgender and uses they/them pronouns, says they have had to decide in a job interview between insisting the interviewer use their correct pronouns or “being quiet and maybe getting the job.”

Smith says their experience matches the experiences of many members of their community.

“We often need to hide that we are queer or trans as a condition of employment,” says Smith, who also offers training in transgender inclusion. “Many of my clients report having been denied job offers or having been fired, or having difficulties with washrooms, respectful language and recognition at work.”

This is a result of most employers having “no idea” of their obligations to their transgender employees, Smith says. This lack of knowledge can be seen in something as (theoretically) straightforward as a name change after someone transitions.

A transgender person’s name is covered under protections around gender identity, with provincial and territorial human rights codes (such as the Ontario Human Rights Code) protecting against discrimination on those grounds. To be truly compliant, Smith notes, an employer should have a system in place so that when an employee requests this change, it’s a seamless process to update every record that lists gender or name, paper or electronic.

This ties into a larger ignorance around “basic” protections for transgender employees that Smith has noticed in training sessions.

“Transgender people are entitled to an immediate recognition in terms of their pronouns, any language that may gender them and access to gendered spaces,” they say.

Smith adds that transgender people should be free from situations where their deadname arises – deadname refers to the name they were known by before their transition – and they need to be protected from being misgendered.

Jade Pichette notes that these are all legal requirements that wouldn’t have existed even 15 years ago, when gender identity and expression weren’t protected.

“We have come a long way in workplaces, where there are many who have more space for trans and non-binary employees,” says Pichette, director of programs at Pride at Work Canada, a Toronto-based non-profit organization that works with employers to create more inclusive workplaces.

“However, we know that uplifting has not been [present] across every industry,” says Pichette, who uses they/them pronouns.

They point to a recent Trans Pulse Canada study showing that while 89 per cent of trans people have at least some college or university education, about half make $30,000 per year or less. Forty per cent of trans people are considered low-income households compared to 6.4 per cent of the Canadian public. Pichette adds that trans people who are Indigenous, Black and disabled in particular encounter “rampant” discrimination in the workplace.

“Whether you have a welcoming environment can vary from community to community and within communities,” they say. “We are far from equity, despite increasing legal equality.”

Going beyond pronouns and Pride flags

Even the most well-meaning workplaces can get transgender inclusion wrong. Pichette cites the real-life example of an employer who created a gender-inclusive washroom after an employee transitioned. They then told the employee that they had to use this washroom, even though it was on another floor and there’s a washroom that matches their gender identity that’s much closer to where they work.

“Which, for the record, is illegal,” Pichette notes.

In another instance, a supervisor “in a celebratory way” announced an employee’s transition without their consent, “which outed them without choice,” says Pichette.

“One other big one I see is [employers] asking their trans employee to ‘tell their story,’ which involves a lot of emotional labour for the employee, often unpaid labour, and doesn’t have a direct impact on organizational structure or culture change,” says Pichette. It’s a point that feels particularly pertinent following Pride Month.

So, what should a truly inclusive workplace for transgender people look like?

For Pichette, employers need to go beyond “performative quick fixes like adding pronouns or throwing up a Pride flag.” Employers should take a holistic look at their organization’s inclusion strategy (or create one if there is none), ensuring it is transparent and clear, with tangible guidelines such as how an employer could work with an employee to create a transition road map that honours their specific journey.

On the micro level of daily interactions, there are things cisgender employees can do to support their transgender colleagues, Pichette says.

“If you are a manager with a trans direct report the most important thing you can do is listen and learn. Listen to how your direct report wants to be supported and offer to advocate on their behalf with other colleagues or the organization if they wish that support.”

If a work colleague or peer is trans, non-binary or transitioning, you can be a support person for them, Pichette says. That might mean going into gendered facilities with them if they don’t feel safe, or accompanying them to see their supervisor or HR person if they don’t feel comfortable on their own.

“Be willing to address transphobic comments and misgendering or suggest more inclusive options to your other colleagues and supervisors even when your trans colleague isn’t in the room,” Pichette adds.

It’s a point that recalls Jessie Nelson’s case and why their stand, like that of so many others, is just one part of the ongoing work being done to create more inclusive spaces.

“There are workers out there whose lives are better because Jessie Nelson was brave,” says lawyer Adrienne Smith. They say their “heart exploded” when they received an e-mail from a fast-food worker who had shown the case to their boss, making the point that using their correct pronouns was the law.

Still, it’s a bittersweet triumph, says Smith.

“Wouldn’t it be great if we never had to be brave?” they say. “If we could just live a private life and have ‘who we are’ not be an issue in the workplace, in social spaces or at home?”

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