Misgendering: A Human Rights Violation in Canada

On September 29th, 2021, the British Colombia Human Rights Tribunal ruled that the intentional misgendering of a person in the workplace consists of a human rights violation. 

After a heated argument regarding their pronouns, Jessie Nelson, a non-binary and gender-fluid individual who uses they/them pronouns, was fired from their job as a server at restaurant Buono Osteria. Nelson had previously, and on multiple occasions, asked restaurant manager Brian Gobelle to use their correct pronouns when referring to them, as well as refraining from the use of gendered nicknames such as “sweetie”, “sweetheart”, and “honey”, all of which have no relevant purpose in the workplace. After seeing no change in Gobelle’s behaviour and receiving no help when the issue was brought up with management, Nelson spoke to Gobelle again. Nelson was fired some days later for coming off as “too militant”

Using the excuse that Nelson was still in their probation period, Goebelle justified the firing without prior notice or cause and ultimately avoided having to declare the real reason for Nelson’s termination; their gender identity and pronouns. Even though Nelson had received positive feedback on their performance, the manager argued that they made the team uncomfortable in order to adequately justify their termination. This false narrative, however, completely undermines and invalidates the conduct through which Nelson was made to feel uncomfortable by the discriminatory workings of Gobelle coupled with the complete lack of support from management. Gobelle’s feelings were prioritized over Nelson’s safety and wellbeing which perfectly encompasses the way in which trans people are often treated as less than human, and their experiences and feelings are not taken into consideration.

The ruling issued by Devyn Cousineau, a full-time member of the British Colombia Human Rights Tribunal, acknowledges that Nelson’s treatment violates section 13 of the Human Rights Code which protects people against discrimination on the basis of gender identity and expression within the employment sector, among other things. From this ruling, Nelson received compensation of $30,000. The restaurant is also required to implement human rights training as the restaurant staff was not open to listening when Nelson attempted to educate them on transgender issues. Diversity training, however, has been shown to not always have the desired effects, and can sometimes even cause backlash from participants reacting defensively. Even though the training itself might not be the most effective solution, the ruling will still serve to establish what is unacceptable on the part of employers and will hopefully incentivize the implementation of a culture that treats employees with respect. It is also a massive step in empowering the right employees have to issue a complaint when they are victims of this form of harassment. 

Nevertheless, the case will have a positive impact by setting a precedent for future human rights cases of a similar nature through the declaration that pronouns are an essential part of a person’s identity and the use of a person’s correct pronouns is an important sign of respect. In 2017, the federal government passed Bill C-16, which added gender identity and expression to the identities protected by the Human Rights Code of Canada. The Bill had fostered a lot of debate, primarily because conservatives were scared of the consequences it might lead to if they referred to someone by the wrong pronouns. Justice Minister Jody Wilson-Raybould answered their concern by asserting that the Bill did not compel them to use certain pronouns, but that the deliberate and repeated misgendering of someone would fall under the guise of harassment which, in turn, would lead to consequences. Nelson’s case provides an example of what this Bill considered harassment.

While this case is a step forward in fostering hope that it is possible to win such cases, this good news comes among a wave of transphobic legislation being passed around the world this year. In the United States, for example, over 100 bills discriminating against trans people have been put in place. In Quebec, the proposition of Bill 2 on September 21st of this year (2021) outlines that transgender rights are still not taken seriously by our provincial government. The bill in question would force transgender people to undergo genital surgery before being able to change the sex on their birth certificate. It would introduce the category of gender, the consequences of such meaning that trans people who do not want surgery will be systematically outed. This extremely dangerous bill will increase the risks of discrimination and violence against trans people. Therefore, having trans people’s pronouns recognized is a step in the right direction, however, transphobic laws and sentiments are deeply in our society and many more issues need to be addressed before we can categorize the plight of transgender rights as advancing.


By Talia Pirsch

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