Accounting for Law
Employment & Labour, Human Rights

U.S. may look to Ontario as bathroom law comes under fire

By Nicole Simes

Using the bathroom.

A topic not typically discussed has gained international interest, as the U.S. Justice Department has sued North Carolina over a law that requires individuals in that state to use the bathroom facilities of their biological sex, not gender. 

The bill has a direct discriminatory impact on transgendered persons who may have a lived gender that is different from their sex or biology. For example, the bill may require a trans woman who presents as female and lives her life as female to use the men’s washroom.

While Ontario is seemingly more progressive than North Carolina, washroom use continues to be a topic of legal discussion in this province.

The Ontario Human Rights Code protects Ontarians on the basis of personal characteristics such as race, creed, family status and disability. Gender identity and expression, which cover transgendered persons, were added to the Code in 2012.

In 2012, the Human Rights Tribunal of Ontario heard the story of Maria Vanderputten in Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 (CanLII). Vanderputten worked at a packaging plant and transitioned from male to female during her employment.

Her manager advised Vanderputten that she was required to use men’s facilities until she could produce medical evidence that she was female. Vanderputten feared increased harassment and violence from her colleagues if forced to use the men’s facilities as she had previously experienced slurs such as “faggot” and “fruit cake” and had been pushed and shoved by her co-workers.

The tribunal acknowledged that issues such as washroom use are complex but found that an employer cannot insist that an employee be treated as his or her birth gender in the workplace. The employer cannot require evidence that an employee has undergone surgery in order for the employee to be treated as his or her felt gender identity.

North Carolina does not have the same human rights protections as Ontario. However, the U.S. Justice Department may want to turn to Ontario to consider how gender identity and expression law have developed in recent years to protect transgendered persons.

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