Gender Identity and Access to Women’s Washroom Facilities

July 9, 2012

Author: Erik Marshall

In response to a communiqué we recently published, in which we reported that a proposed amendment to the Ontario Human Rights Code (“Ontario Code”) that would see “gender identity” and “gender expression” added to the list of prohibited grounds of discrimination had passed Third Reading in the Ontario legislature, we received an interesting practical question which we thought was worthy of further comment.

Would it be discriminatory to prohibit a pre-operative, male-to-female transsexual from entering a women’s washroom? The answer should be of interest to any employer or business offering services or accommodation to the public.

While human rights tribunals in B.C. and Ontario have heard cases where allegations of discrimination have been brought by pre-operative, male-to-female transsexuals seeking access to women-only gym facilities[1], we wanted to focus the discussion for this particular blog entry on a case which specifically considered access to a women’s washroom.

In Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.’s Lounge)[2], the Complainant, Tawni Sheridan (“Sheridan”), alleged that Sanctuary Investments Ltd. doing business as B.J.’s Lounge (“B.J.’s Lounge”), the Respondent, denied her a service or facility customarily available to the public and/or discriminated against her with respect to a service or facility customarily available to the public because of her sex and/or physical or mental disability, contrary to the B.C. Human Rights Act (“Act”), now the B.C. Human Rights Code.

It is noteworthy that Sheridan had applied to the B.C. Human Rights Tribunal (“Tribunal”) to amend her complaint to allege discrimination because of her “gender identity”, however, this application was rejected by the Tribunal because it held it did not have jurisdiction to amend a complaint by adding a ground that is not included in the Act.

Nevertheless, the Tribunal held that discrimination against a transsexual constitutes discrimination on the basis of sex because transsexuals experience discrimination due to the lack of congruence between the criteria which determine sex. The Tribunal also found that discrimination against a transsexual constitutes discrimination on the basis of physical or mental disability because medical evidence was presented at the hearing that transsexuals are the most distressed of gender dysphoric individuals due to the complete disassociation between their gender identity and their physical sexual identity. The Tribunal also noted that Gender Identity Disorder is defined in the Diagnostic and Statistical Manual of Mental Disorders.

By the time the case was heard by the Tribunal, Sheridan had undergone sexual reassignment surgery, yet at the time of the incident, which formed the basis for the complaint, Sheridan described herself as a pre-operative, male-to-female, transsexual.Evidence was presented at the hearing that both the Harry Benjamin International Gender Dysphoria Association, Inc., and the medical profession in British Columbia require a transsexual, before sexual reassignment surgery, to live in the desired sex for a period of time.

Sheridan was aware of this requirement and she began to appear in public as a woman in August, 1995, shortly after beginning to take female hormones. Medical evidence was also presented before the Tribunal that during this transition phase the individual is considered to be in the desired sex, rather than the physical sex assigned at birth, and that part of living in the role of the desired sex is the use of the washroom of that sex.

Accordingly, on the night in question, August 25, 1995, Sheridan attended B.J.’s Lounge, a bar/restaurant, dressed as a woman. After a couple glasses of beer, she used the women’s washroom. There was no one else in the washroom at the time. When she emerged from the washroom, a bouncer employed by B.J.’s Lounge told her not to use the women’s washroom again or she would be asked to leave.

The Tribunal held that the Respondent’s policy with respect to the use of washrooms was a neutral policy that clearly had an adverse effect on transsexuals in transition. Therefore, the Respondent had a duty to accommodate transsexuals in general, and Sheridan in particular, up to the point of undue hardship.

The Respondent argued that it had received complaints from female patrons about men using the women’s washroom.However, the Tribunal held that the preference of patrons is not a defence to a complaint of discrimination.

The Tribunal found that transsexuals in transition who are living as members of the desired sex should be considered to be members of that sex for the purposes of human rights legislation. Taking this view, Sheridan was a woman at the time she attended B.J.’s Lounge and therefore, her choice of the women’s washroom was appropriate. The Respondent did not present any evidence to establish that the use of women’s washrooms by a male-to-female transsexual interfered with the maintenance of public decency.

In the result, the Tribunal held that the Respondent’s washroom policy discriminated against Sheridan on the basis of both sex and physical or mental disability contrary to the Act. The Tribunal noted that the Respondent had since changed its policy concerning the use of its washrooms. While there was evidence that some customers were displeased, there was no evidence of undue hardship. Going forward, the Tribunal stated if any inquiries by an employee of the Respondent need to be made to verify that an individual is a transsexual in transition, such inquiries must be made in a dignified, private, and non-confrontational manner, keeping in mind the immediate nature of the service required.

The Tribunal ordered that the Respondent cease the contravention of the Act and refrain from committing the same or a similar contravention. In addition, the Respondent was ordered to pay Sheridan $2,000 as compensation for injury to dignity, feelings and self-respect.

While this case was decided in B.C. and is not binding upon the Human Rights Tribunal of Ontario, its conclusion, particularly in light of the upcoming addition of “gender identity” and “gender expression” to the list of prohibited grounds of discrimination in the Ontario Code, offers some insight into a novel question about the scope of the soon to be amended Ontario Code and its application to transgendered individuals seeking access to women’s washroom facilities.

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[1] Stopps v. Just Ladies Fitness (Metrotown) Ltd., [2006] B.C.H.R.T.D. No. 557; and MacDonald v. Downtown Health Club for Women, 2009 HRTO 868; 2009 HRTO 1043; 2009 HRTO 1152; 2009 HRTO 1308; and 2009 HRTO 1647.

[2] Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.’s Lounge), [1999] B.C.H.R.T.D. No. 43.

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