It is well established that non-discrimination is a core value of our education system, and that schools are required to provide a tolerant and non-discriminatory learning environment for all students.(2) This paper aims to address the legal landscape and policy development for accommodating transgendered or gender non-conforming students in schools. This paper also identifies certain areas where school boards can expect the accommodation of trans students to be most noticeable. While this paper is not meant to be used as formal legal advice, it is intended to provide guidance to school boards and other educational bodies on how to identify accommodation needs, and what their legal obligations are under the circumstances.
By societal norms, that designation of gender or sex is linked, to one’s innate sense of self, and human dignity.(3) However, as Vancouver-based lawyer Barbara Findlay, Q.C. once stated:
“The notion that there are two and only two genders is one of the most basic ideas in our binary Western way
of thinking. Transgender people challenge our very understanding of the world. And we make them pay the cost
of our confusion by their suffering.”(4)
Before embarking on a discussion and analysis on accommodating trans students, we must first identify what it means to be “trans”.
“Trans” can mean a lot of things. According to the Ontario Human Rights Commission, the terms “Trans” or “transgender” is an umbrella term that describes people with diverse gender identities and gender expressions that do not conform to stereotypical ideas about what it means to be a girl/woman or boy/man in society. “Trans” can mean transcending beyond, existing between, or crossing over the gender spectrum. It includes but is not limited to people who identify as transgender, transsexual, cross dressers or gender non-conforming (gender variant or gender queer). “Trans” includes people whose gender identity is different from the gender associated with their birth-assigned sex. Trans people may or may not undergo medically supportive treatments, such as hormone therapy and a range of surgical procedures, to align their bodies with their internally felt gender identity.(5)
For the purposes of this paper, the term “trans” will be used as a term to describe students who are transgendered or gender non-conforming. We recognize that there is a very wide spectrum of gender identity, but in the interests of succinctness, we will refer to the umbrella term. (6) Nevertheless, it’s important for educators to keep in mind the diversity of the trans spectrum, as well as the necessity for a case-by-case analysis of an individual student’s circumstances. The focus of this paper is on accommodating trans students in the school environment. While trans students are not new to the education system, their ability to be who they want without consequence has certainly evolved (for the better) over the past twenty years. Simply put, social intolerance toward transgendered persons has waned.(7)
Nonetheless, trans students are still apt to experience significant psychological suffering and conflict with others in society. At least part of that suffering is related to experiencing repeated rejection. For many trans students, their negative experiences began in school.
In 2006, the Ontario Human Rights Tribunal heard the matter of Hogan v. Ontario (Health and Long-Term Care), a case which centered around the province’s decision to delist sex reassignment surgery from the public health insurance plan. During the hearing, the Ontario Human Rights Tribunal heard testimony from a variety of witnesses who described their experiences growing up trans. In one such example, a witness describes how growing up, she always felt female. Her school principal thought she acted like a “schizophrenic girl,” which prompted the school board to want a psychological assessment. The report of the Toronto Psychiatric Hospital, dated December 6, 1965, described her as “a very obese effeminate boy with a very high voice."(8) In another example, a witness describes the “complete breakdown” he had in high school several decades earlier, which eventually led to him receiving “shock treatments".(9)
These examples show just how far we as a society have come. While referring to trans students “schizophrenic” or administering shock treatments are a thing of the past(10), misconceptions which result in mistakes are still made when accommodating trans students in schools.
When a trans student enters the school environment, school officials will often see the student as a source of conflict.(11) Sadly, some trans students may also perceive themselves to be conflicts as well. But when it comes to the school environment, there’s nowhere to hide. Trans students cannot simply go where gender is not prevalent in the school system, because gender is everywhere.(12)
Ultimately, the universal goal for schools across Canada is to ensure that all students feel safe at school in a positive climate that is inclusive and accepting regardless of gender identity and gender expression.(13) For school boards, Federations and the school community, the sources of enforcement of the acceptance are the Human Rights codes of the various provinces and the Charter of Rights and Freedoms.(14) Compliance with the obligations to not discriminate and to accommodate to the point of undue hardship are the touch stones for avoiding liability and ensuring the schools meet the goals of inclusiveness for all. These obligations will be discussed in detail in this paper, but before diving into the law, the statistics need to be canvassed in order to provide an illustration of the struggles of trans students.
The unfortunate reality for trans students is that life can be very difficult, especially in school. While school boards should (and in most cases do) attempt to make life easier for them, the statistics paint a very troubling picture for what they may be up against.
In compiling the research for this paper, we came across the following numbers:
• In a national poll conducted in 2011 of 3,607 high school students, 74% of trans students say they have been verbally harassed about their gender expression(15);
• More than one in five (21%) queer and trans students reported being physically harassed or assaulted due to their sexual orientation(16);
• In 2009, 74% of hate crimes motivated by sexual orientation were violent crimes. 63% of hate crimes motivated by sexual orientation resulted in physical injury to the victim-far more than any other identifiable group(17);
• 49% of trans students have reported having experienced sexual harassment in school in the last year(18);
• Almost two thirds (64%) of queer and trans students reported that they feel unsafe at school(19);
• 49% of queer and trans youth identified gender segregated change rooms as being unsafe and 43% identified their school washrooms as being unsafe(20);
• 47% of trans youth aged 16-24 seriously considered suicide in the past year(21);
• Two-thirds of trans people (in Ontario) said they had avoided public spaces that everyone else takes for granted such as malls or clothing stores, restaurants, gyms and schools because of a fear of harassment, being “read” or “outed"(22).
With the exponential degree of bullying that those who identify as transgender or gender non-conforming experience, it’s no surprise that various problems arise, such as absenteeism, lowered academic achievement and poorer psychological well-being.(23)
These statistics support the proposition that trans students are vulnerable, especially when mixed with the general population. This vulnerability has led to action from various provincial legislatures and Parliament in creating anti-discrimination laws which are meant to foster inclusivity.
Discrimination can take place in variety of ways. As a general definition, discrimination is any action, whether intentional or not, that imposes burdens on a person or group and not on others, or that withholds or limits access to benefits available to other members of society.(24)
Section 15 of the Charter of Rights and Freedoms states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. A developing body of law in Canada over recent years has interpreted gender identity to be included in the meaning of “sex”.
One of the first such cases was a decision of the Québec Commission des droits de la personne & des droits de la jeunesse from July 1998.(25) In this particular case, which mainly dealt with an issue regarding a trans employee’s treatment in the workplace, the Commission held that “transsexualism” is included within the meaning of ‘sex’ under article 1 of the Charte des droits et libertés de la personne du Québec.(26)
Jurisprudence on gender identity continued to develop in the 2000’s, coming to a head in April 2014, where the Alberta Queen’s Bench heard a matter involving an individual who described herself as a “trans female” who wanted to change the gender listed on her birth certificate from male to female.(27) At issue in that case was the provincial Director of Vital Statistics’ decision to refuse an application to change the birth certificate.
Mr. Justice Burrows held that the Vital Statistics Act, S.A. 2007, c. V-4.1, the legislation which encompasses birth certificate information, discriminated against the Applicant on the basis of sex. In coming to this decision, Justice Burrows stated: “A distinction drawn between a person with male genitalia who lives as a male and a person with male genitalia who lives as a female is beyond question a distinction made on the basis of sex."(28)
Interestingly, there is jurisprudence which frames trans discrimination on the grounds of “disability”, as opposed to “sex".(29)
As well, it should be reiterated that the Charter applies to the actions and decisions of school boards.(30) But despite the provisions of the Charter, the main source of legal protection for trans people in Canada is the provincial human rights codes. This is especially true as it relates to schools, as the provision of education is within the jurisdiction of the provinces.
Interestingly, the Northwest Territories was the first jurisdiction in Canada to expressly include “gender identity” as a prohibited ground of discrimination in its territorial Human Rights Act.(31)
In 2012, three parties of the Ontario Legislature co-sponsored Toby’s Act, the Bill that added “gender identity” and “gender expression” as prohibited grounds of discrimination under the provincial Human Rights Code.(32) For example, the Ontario Human Rights Code now states the “[e]very person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability”. The grounds make it clear that trans people and other gender non-conforming individuals are entitled to legal protections in the same way that people are protected from discrimination and harassment based on race, age, disability and all other prohibited grounds.(33)
Manitoba also amended its Human Rights Code(34) in 2012 to include “gender identity” as a prohibited ground of discrimination. Saskatchewan did the same to its Human Rights Code(35) in December 2014.
Nova Scotia amended its Human Rights Act(36) in 2012 to include both to include “gender identity” and “gender expression” as a ground of discrimination. Prince Edward Island, Newfoundland & Labrador, and most recently Alberta followed suit by amending their respective Human Rights Act(37) to also include “gender identity” and “gender expression” as a prohibited ground.
In jurisdictions where “gender identity” and/or “gender expression” is not specifically listed as a prohibited ground, trans discrimination is usually dealt with under the ground of “sex”.
Although the Charter and the various provincial human rights codes share similar wording regarding anti-discrimination, there are significant differences between the two, namely that the provincial human rights codes do not place “reasonable limits” on an individual’s rights in a way that the Charter does.(38) For example, if a Charter application were brought against a school board on the grounds that it discriminated against a trans student, the board would have an opportunity to prove that the action it took was justified. However, if an application is brought under a provincial human rights code, then the board can’t argue its actions were justified. It can, however, argue that it attempted to accommodate the student to the point of undue hardship.
Federally, Bill C-279 was working its way through Parliament. Bill C-279 was a private member’s bill sponsored by Randall Garrison, MP for Esquimalt - Saanich - Sooke. The Bill would have amended the Canada Human Rights Act to include “gender identity” as a prohibited ground of discrimination, as well as amend the Criminal Code to include gender identity as a distinguishing characteristic protected under section 318(39) and as an aggravating circumstance to be taken into consideration under section 718.2 at the time of sentencing. These sections of the Criminal Code deal with hate propaganda, and cover the offences of advocating genocide, public incitement hatred, and willful promotion of hatred. The Bill made it through the House of Commons before being killed by the general election in October 2015. The Bill has not been reinstated as of the time of writing this paper.
DEVELOPING TRANS-AFFIRMATIVE POLICIES
As was stated in the Vital Statistics case referred to above:
Transgendered persons encounter disadvantage, prejudice, stereotyping, and vulnerability because their felt sex is
not the sex recorded at birth. They should not be ashamed of their circumstances. […] However, so long as the rest
of society does not fully accept that transgendered persons are entitled to live their lives as they wish, and presents
impediments to their doing so, transgendered persons unfortunately may need to hide their circumstances.(40)
This is an unfortunate reality. Every student has a right to feel safe in his or her own school, and every student deserves to be treated equally, equitably and respectfully by the school community.(41) They should not feel the need to hide their circumstances. But should a trans student choose to hide their circumstances or to proudly display them, all school boards should have policies in place to provide a framework for accommodating them.
The goal in establishing solid trans-affirmative policies is to avoid individual and systemic discrimination. Systemic discrimination is often embedded in patterns of behaviour, policies and practices that are part of the administrative structure or informal culture of an organization, institution or sector.(42)
In Ontario, the first trans-specific board policies to emerge were the Toronto District School Board’s Guidelines for the Accommodation of Transgender and Gender Non-Conforming Students and Staff (2011), Durham District School Board’s Supporting Our Transgender Students (2012), and Thames Valley District School Board’s Guidelines for the Accommodation of Gender Diverse and Trans Students (2013).(43) Since that time, many boards across Canada have either developed, or are in the process of developing, trans-specific policies.
While developing and enacting a policy is certainly a step in the right direction, it’s just the first step. Just as important is the need to ensure the proper implementation the policy in the schools with proper leadership and training of staff.
The Canadian Teacher’s Federation provides a 2012 resource called Supporting Transgender and Transsexual Students in K-12 Schools: A Guide for Educators.(44) It identifies some of the areas where educators may feel overwhelmed in understanding how best to accommodate trans students. This resource is very thorough and is highly recommended as a well thought out source of information to be considered when establishing or updating a board policy that deals with trans students.
Importantly and not surprising, the Guide for Educators highlights the possibility that there may be public backlash in creating trans-supportive policies. It states: “If your school suffers criticism from the local community because of a transitioning student, staff should be prepared to defend the rights of all students to a safe, welcoming, and equitable educational environment."(45) As sometimes (though rarely) happens, the law is out front in maintaining what community standards in the schools should be, and it is this conflict with school-based policies and school board actions, as compared to community norms, that creates conflict.
There have been several recent high profile examples of public backlash to the implementation of trans-supportive policies. For example, in January 2016, after the Alberta Education Minister David Eggen released the Guidelines for Best Practices, which focuses on creating supportive learning environments for trans students, Calgary’s Roman Catholic Bishop Fred Henry said the guidelines were “totalitarian” and “anti-Catholic”.(46) Bishop Henry also stated that the guidelines “smack of the madness of relativism and the forceful imposition of a particular narrow-minded anti-Catholic ideology” and that such policies fly in the face of the teaching that “men and women should respect and accept their sexual identity” as created by God.
In another example, in 2014 the Vancouver School Board received public backlash after the release of its policy on sexual orientation and gender identities.(47) The Board was criticized for rushing the policy through and not adequately consulting with stakeholders. The Policy, which included rules for washroom sharing among other things, was eventually challenged in the BC Supreme Court. Several parents complained that their children are uncomfortable with sharing private spaces with member of the opposite sex and “care deeply about privacy when using the washroom or change room”. This matter is still before the Court, but has not been set down for a hearing at the time of writing this paper.
There are likely many more examples of public backlash to trans-affirmative policies for school, and there will likely be more. But as stated in the Guide for Educators, schools should be prepared to defend the rights of trans students. The best way to defend those rights is to accommodate.
The first step in the accommodation process is recognizing when a student requires accommodation in the first place. In a better world, the student would be confident enough to tell their teacher that they’re trans, then the teacher and/or principal will if necessary meet with the student where they’ll identify what, if any, accommodation the student may need.
In the real world, boards can expect a process that isn’t anywhere close to being that simple and straight forward.
A trans student may not vocalize their gender diversity. Even if they haven’t “come out”, accommodation is still necessary where there is a perceived need to accommodate. Trans students, especially younger students, may have a “lack of access to information [which] prevents many young people whose gender differs from the dominant model from having the language to name their experiences and feelings."(48) Another possibility is that a student may not feel comfortable making an accommodation request, either due to intimidation or to avoid the stigma of being labeled as “disordered”.(49)
Both these scenarios highlight the need for schools to be proactive in their dealings with trans students, as opposed to being reactive. Put another way, a school shouldn’t sit back and wait for an accommodation request to present itself. Instead, policies should be enacted and implemented on their own accord, especially as they deal with the main sources of contention (which will be explored later in this paper).
It is unacceptable to choose to remain unaware, ignore or fail to address potential or actual human rights violations, whether or not a complaint is made.(50) It is turning a blind eye to concerns that can result in systemic complaints that are hard to defend.
As well, a parent or guardian may be the ones to come forward with an accommodation request, unbeknownst to the student. But this is not a two-way street. In the Thames Valley District School Board’s 2013 policy the Board states: “A school should never disclose a student’s gender diversity or trans status to the student’s parent(s)/guardian(s) without the student’s explicit prior consent."(51) Absent compelling grounds for safety that cannot otherwise be dealt with, this broad statement makes good sense.
As a best practice, the Toronto District School Board advises to have a student and/or guardian/parent put a request for accommodation in writing “for the purposes of clarity and to help protect both parties in case of questions regarding the original request."(52) As an alternative, confirmatory letters home to student and/or guardian/parent may also address the issue of clarity.
One example of a progressive approach that would surely simplify the process for establishing when a student may need accommodation comes from the Anglophone East School District based in Moncton. Starting at the beginning of the academic year, parents were given a student data collection form which asked for the "Identified Gender" of a child, with three answers to choose from, female, gender independent or male.(53)
Interestingly, Alberta’s Guidelines for Best Practices recommends that requests for supports from students be addressed on a case-by-case basis and that “solutions are evidence-informed” and individualized to best meet the needs of the student making the request.(54) While it’s not entirely clear what is meant by “evidence-informed”, we suggest an approach that would not require the student to produce any evidence of their accommodation needs unless provable grounds exist for reason to believe the good faith basis of the request is in doubt.
It should also be noted that the accommodation process does not focus entirely on trans students themselves. It can also involve those students who interact with trans students. For example, some cultures or religions have strict rules that dictate when men and women can interact. These are important considerations as sometimes a request for accommodation may result in a “competing human rights” situation if the rights of another person or group are also affected.(55)
In 2015, the Nova Scotia Court of Appeal dealt with the matter of Bonitto v. Halifax Regional School Board.(56) The facts of the case concerned a fundamentalist Christian whose children attended a primary through grade nine school. The main issue involved the father distributing gospel tracts to students, on school premises, during school hours.(57) The Court heard evidence that the school accommodated the father’s request that his children not be exposed to materials or teachings which run contrary to his fundamentalist Christian beliefs, by allowing them to be exempt from sessions, activities and materials relating to things like Halloween, the Easter Bunny, Santa Claus, the occult, magic, homosexuality and transgender issues.
Allowing a student to be exempt from certain materials or situations is an example of an acceptable accommodation. But what happens if a student or their parent/guardian requests an accommodation that would considerably interfere with the operation of the school?
Accommodation is only required up to the point of undue hardship. The definition of “undue hardship” can fluctuate depending on the circumstances of the accommodation. For example, accommodating to the point of undue hardship in the employment context varies from undue hardship in the provision of services. The Supreme Court of Canada has stated the following(58):
[I]t is a cornerstone of human rights jurisprudence [. . .] that the duty to take positive action to ensure
that members of disadvantaged groups benefit equally from services offered to the general public is
subject to the principle of reasonable accommodation, which means “to the point of ‘undue hardship’”.
Undue hardship implies that there may necessarily be some hardship in accommodating someone’s
disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to
What constitutes undue hardship depends on the factors relevant to the circumstances and legislation
governing each case.
Most human rights jurisprudence will often consider issues such as cost, reasonableness, interference with day-to-day operations, as indicia of undue hardship.(59) In the Toronto District School Board’s policy, it states that the Board “will balance its decision to accommodate on several factors, such as undue hardship, including: the cost of the accommodation to the Board; health and safety risks to the person requesting accommodation and to others; and the effect of accommodation on the Board’s ability to fulfill its duties under Board policies and the Education Act."(60)
So once a need for accommodation presents itself to a board, before anything is implemented, the board should always balance the request with its ability to accommodate to the point of undue hardship. Undue hardship is considered on a case-by-case basis, depending on the circumstances of the school.
While a situation requiring accommodation can arise at any time, there are several areas where discrimination can be most prevalent, even if unintentional. The three areas we focus on in this paper are classroom culture, sports and washrooms.
Teachers and school administrators should continually examine and reflect on their numerous daily interactions with students. These interactions, which would also include teacher behaviours, tend to become ‘automatic’ and many times they happen without our really thinking about them or their ramifications.(61)
In their respective training programs, school professionals have very few opportunities to reflect on the likelihood that at some point, they will be working with trans students.(62) This, as one study explains, leads to teachers feeling unprepared and anxiety-ridden when they find that they have a transgender child in their classroom.(63) Interestingly, in the Winnipeg School Division’s new draft Safe and Caring Policy, principals and vice-principals are required to ensure their staff are trained in dealing with LGBTTQ issues.(64)
As part of these interactions in classroom culture, schools should actively try to minimize gender-segregated activities. For example, they should avoid structuring courses or classroom activities based on gender-specific roles such as boys versus girls in academic, athletic or talent competitions.(65) The Vancouver School Board’s policy Sexual Orientation and Gender Identities recommends that in situations where students are required to be segregated by sex, trans students will have the option to be included in the group that corresponds to their identity.(66)
The Ottawa-Carlton District School Board policy offers several suggestions to minimize gender-segregated activities, such as not limiting the number of boys or girls in a group, encouraging students to participate in various roles in a group, avoid lining boys and girls up in separate lines, separating the class by gender, or giving out awards based on gender.(67)
In addition to classroom interactions, schools should also be conscious of the content of the curriculum being taught. The Toronto District School Board policy states that school staff are expected to challenge gender stereotypes and integrate trans-positive content into the teaching of all subject areas.(68) This positive acknowledgment is said to help trans students feel they have a place in the world, which is belief that should always be encouraged.
Above all else, schools should actively try to avoid perpetuating gender stereotypes in the classroom. This can be minor things like complimenting girls more often on their appearance but boys more often on their athleticism, to ensuring that the curriculum and literary materials challenge students to think critically about gender roles.(69)
The Canadian Teachers’ Federation Guide for Educators provides several suggestions for ensuring classroom culture, and school environments in general, can be more inclusive.(70) We encourage all teachers and administrators to review these suggestions.
Extra-curricular sports and physical education classes are another area where schools can anticipate issues arising regarding how to best integrate and accommodate trans students.
The guiding principle should be that all students participate in athletic activities (either extra-curricular or as part of the phys-ed curriculum) in ways that are comfortable and supportive of their diverse sexual orientations, gender identities and gender expressions.(71) This means that if sports teams are divided by gender, students are given the choice to participate on a team that reflects their gender identity.
As well, it should be a board’s policy that should a trans student be uncomfortable with participating in any physical education class for reasons related to their gender, that student should be allowed to satisfy the P.E. requirement by independent study outside of gym class.(72)
But what does a school do when it is fortunate enough to have superstar athlete like Caitlyn Jenner? Many of you may know Caitlyn Jenner (formerly Bruce Jenner) from her high-profile coming out as a transgendered woman in April 2015. Jenner’s rise to celebrity status stems from her gold-medal performance as a male decathlete at the 1976 Summer Olympics in Montreal. Jenner is considered one of the greatest athletes of the century.
There appears to be disagreement on how to approach a Caitlyn Jenner situation for student athletes. For example, the Alberta Guidelines suggest that students who choose to participate in extra-curricular sports can do so in ways that are comfortable for them and supportive of their gender identities.(73) In another example, the Vancouver School Board states that trans students shall be permitted to participate in any physical education sex-segregated activities in accordance with their gender identity if they so choose.(74) Both these examples contemplate an approach based entirely on the choice of the student.
The above approach can be contrasted with the approach taken in Ontario. In its Transgender Participation Policy, the Ontario Federation of School Athletic Associations (the governing body for high school sports in the province) states(75):
The following conditions will be used to determine a transgendered individual’s eligibility to compete:
a) Transgendered females, to compete on a girls’ team, must submit documentation from the treating
licensed physician to show that gender reassignment as defined in 1 d) above has been active and ongoing for
at least one year.
b) Transgendered males may participate on a male team as per OFSAA’S gender equity policy.
Any transgender person who is not undergoing gender reassignment will be deemed to be their birth gender for the purposes of sport eligibility. Birth gender is that which is specified on the person’s birth certificate.
This approach effectively contemplates a double-standard, depending on which team a student wants to participate on. If a trans male (ie/ transitioned from female to male) wants to play on a male team, he can do so. But if a tans female (ie/ transitioned from male to female, as Caitlyn Jenner did) wants to play on a female team, she must submit medical documentation that a gender reassignment procedure has been ongoing for at least one year. Under the OFSSA policy, a “gender reassignment procedure” is defined as a professionally-supervised program of treatment by a licensed physician, to change a person’s body to align with their gender identity, through hormone therapy and/or surgery as well as counseling.
Somewhere in the middle of the Alberta Guidelines and the OFSSA policy is the Winnipeg School Division policy which states that every situation is unique, individual and personal and will be examined by a sub-committee on a case by case basis.(76)
The Alberta Guidelines also suggest that schools identify strategies for building the capacity of coaches, teacher advisors and community volunteers in ensuring extra-curricular activities are inclusive and respectful.(77) We agree with this approach and recommend that once a board has established a policy for inclusion in sports, that all coaches in volunteers be required to review the policy so that they’re prepared to address the needs of trans-student athletes, should they choose to participate in a specific sport.
As well, the Ottawa-Carlton District School Board states that when it comes to use of change rooms, coaches are to plan ahead in the case of away games.(78) Change room use is explored further in the section below.
Trans students struggle with spaces such as the washroom, mainly due to the conscious or subconscious surveillance by their peers. As stated by Kenan Omercajic in his 2015 thesis titled Investigating Trans-Affirmative Education Policies and Practices in Ontario, pressures associated with these spaces, which are “heavily gendered and perpetually under peer surveillance, require a distinct choreography and if one falls out of step with this, they are immediately stigmatized."(79)
Washrooms, and change rooms, in particular, are perceived as battle zones for trans students, places where “bullies indulge in the perverse pleasure system of homophobia and transphobia by tormenting them".(80)
In its section regarding washroom access, the Toronto District School Board states that “requiring students to ‘prove’ their gender (by requiring a doctor’s letter, identity documents, etc.) is not acceptable. A student’s self-identification is the sole measure of the student’s gender."(81)
To refuse to allow a trans student use the washroom of their choice could expose a school board to monetary damages for discriminating against the student. For example, in the 2016 decision of Lewis v. Sugar Daddys Nightclub(82),the Ontario Human Rights Tribunal heard a matter where a trans man was forced out of a night club washroom by security due to the perception the man was using the wrong washroom (ie/ should have been using the women’s washroom). Ultimately, the Tribunal ordered the Respondent to pay $15,000 to the man for injury to his dignity, feelings and self-respect. The Nightclub was also ordered to provide human rights training to all staff, including its security guards, on the issues of gender identity, gender expression and sexual orientation.
In 2014, a human rights application was filed against Toronto District School Board involving a trans male student (ie/ born a girl but identified as a boy) who had issues involving the school washroom.(83) The student’s issues started developing in grade 3 when a group of girls peered over and under a washroom stall in order to watch the student change after swim class. Over time, the student started using the principal’s washroom at the school. Eventually, the student felt most comfortable using the boys washroom, as it was the gender he identified with most. Then one day, some of the other male students at his school trapped him inside a washroom, held the door closed, and demanded that he urinate in front of them. After this incident, the student’s parents took him out of the school and enrolled him at a private facility. This matter was settled, although the precise terms of the settlement are unknown. The Board now has signs for all-gender washrooms in its schools and is providing training and education programs to students and staff to improve the understanding of trans issues.
As a best practice, schools should already be moving towards having at least one gender-neutral washroom. Schools shouldn’t wait for an accommodation request to present itself with respect to washrooms. This has been the source of academic criticism, as requesting the accommodation “serves as a process of outing the student."(84)
While a trans student may choose to use a gender-neutral washroom, they should not be forced to do so. They must not be denied the simplicity of entering whichever washroom they are comfortable with.(85) The Vancouver School Board Policy adopts this principle, stating that trans students shall have access to the washroom and change room that corresponds to their gender identity, but students who desire increased privacy will be provided with a reasonable alternative washroom and/or change room.(86)
In terms of change room and/or locker room access, the Guide for Educators recommends that all students have access to these facilities as they correspond to the student’s consistently asserted gender identity.(87) For students who desire increased privacy, they should be provided with accommodations to best meet their individual needs and privacy concerns, which could include (but should not be limited to) use of a private changing area such as a washroom, staffroom or gym office, or could also include the development of a modified changing schedule (ie/ using the locker room before or after other students).(88)
Another thing that schools should keep in mind is that a student who objects to sharing a washroom with a trans student should also be afforded the opportunity to use an alternative facility.(89) This would also apply when a parent or caregiver objects to shared washrooms or change-room facilities on behalf of their child.
The above discussion by no means contemplates every situation where a school can anticipate having to accommodate a trans student. Rather, it’s meant to highlight areas that traditionally have been the source of most conflict. Based on the above, we’ve created several hypothetical scenarios and encourage the reader/conference audience to reflect on how school staff and administration could navigate these situations.
Scenario 1: The grade 10 band has been asked to travel to Ottawa to play the national anthem of visiting diplomats at a gala event at Rideau Hall. James, one of the clarinet players, is trans. He has self-identified to the principal, but not to his fellow classmates. James just wants to be treated like the other students. All students in the class will be partnered, meaning they’ll share a hotel room together. James’ father takes issue with his son having to share a hotel room as he feels James will almost certainly be “outed”.
Scenario 2: Rosie is a trans student going into grade 9. She lives in the east end of Fakeville and is zoned to attend Jose Bautista Collegiate and Vocational Institute. Rosie’s parents have learned that there are two other trans students at Josh Donaldson High School in the west end of the city. Rosie is not zoned to attend Josh Donaldson High, but her parents have approached the Fakeville School Board and requested that she be allowed to attend that school so that she can have the support of the other trans students. Shania, a non-trans student at Jose Bautista CVI, has also requested a transfer to Josh Donaldson high so that she can be closer to her friends. The Board has a strict policy for zoning, and even if a transfer is permitted, bussing is not provided to the out of zone student.
Scenario 3: David is a 13 year old student in grade 8 who believes he’s actually a girl. He has come out to his principal, but not his parents. He has specifically told his principal that he doesn’t want his parents to know, especially his dad. During recess one day, David told a fellow classmate that he thinks he’s a girl. The classmate then told everyone else in the class. A few of the other male students in his class start harassing him. When David stands up for himself, one the students takes things to the next level and attacks. David receives quite a few cuts and bruises. The school phones his parents who come to pick him up. David’s father is confused by the incident and wants to know why the attack happened.
CONCLUSION AND RECCOMENDATIONS
Despite the advancements in legal protection for trans students over the past two decades, namely those advancements which endorse the rights of trans people to be free from discrimination, members of the trans community continue to be socially isolated in disproportionate numbers.(90) For school boards, proactive policies and procedures that provide structure for the school community to deal with a “new” social reality is key. Flexibility, reasonableness and recognition of needs will permit navigation of the right of trans persons to a discrimination-free school experience.
When developing (or amending) policies and procedures for accommodating trans students, we recommend school boards do the following(91):
• Ensure that the policies are being implemented even if a trans student has not necessarily vocalized their gender diversity.
• Develop flexible policies while keeping in mind that each student is unique with different needs.(92)
• If possible, provide education and training to staff that specifically focuses on the stereotypes and discrimination that trans students can face.(93)
• Permit trans students to identify their own gender without requiring medical certification or any sort of guarantee that their gender identity will remain stable throughout their life.
• Each school should designate a staff person within the school who can act as an advocate and role model for trans students, and administrators should inform students, parents and other staff about the location and availability of this person.(94)
• Ensure that each school has at least one gender-neutral washroom.
• Don’t wait until you “get” a trans student to enact and implement supportive policies and a welcome environment.(95)
• Ensure that each school has an explicit code of conduct for students, which expressly prohibits harassment and gender discrimination on the basis of a student’s actual or perceived gender identity or expression.(96)
(1) Donald B. Shanks (BA, LLB, LLM [Cambridge]) is a partner at Cheadles LLP in Thunder Bay with over 35 year experience. He devotes a significant portion of his practice to Education Law, where he acts for and advises numerous school boards and education institutions. In addition to Cheadles LLP being a founding member of CAPSLE, Mr. Shanks is also a former board member.
Jordan R.D. Lester (BJH, JD) is an associate lawyer at Cheadles LLP. He practices civil litigation, employment law, and human rights law. Before entering the world of law, Mr. Lester was a reporter for the CBC.
(2) Chiang v. Vancouver Board of Education and others, 2009 BCHRT 319 at para. 117.
(3) Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32, (2006), 58 CHRR 317 at para. 126
(4) Barbara Findlay, as cited in John Fisher & Kristie McComb, Outlaws & In-laws: Your Guide to LGBT Rights, Same-sex Relationships and Canadian Law (Ottawa: Egale Canada Human Rights Trust, 2003), at pg. 46.
(5) “Policy on preventing discrimination because of gender identity and gender expression” Ontario Human Rights Commission (31 January 2014), online: OHRC http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression at 55-56. [“OHRC Policy”]
(6) For a list of the various definitions on the gender identity spectrum, we found the following very helpful: Dr. Kristopher Wells, Gayle Roberts & Carol Allen. Supporting Transgender and Transsexual Students in K-12 Schools: A Guide for Educators. Ottawa, ON: Canadian Teachers’ Federation (2012), at pgs. 3-6. [“Guide for Educators”]
(7) Landrie v Miltenberger, 2013 CanLII 29312 (NT HRAP) at para. 14, per adj. James Posynick.
(8) Supra, no. 3 at paras. 360 – 362.
(9) Ibid at para. 371
(10) If you think this is ok, please call us. We need to seriously talk.
(11) Meyer, E., & Pullen Sansfacon, A. (2014) Supporting transgender and gender creative youth: schools, families, and communities in action. New York: Peter Lang at pg. 82.
(12) Kenan Omercajic, “Investigating Trans-Affirmative Education Policies and Practices in Ontario” (2015). Electronic Thesis and Dissertation Repository. University of Western Ontario. Paper 3162. Online: http://ir.lib.uwo.ca/etd/3162/ at pg. 43. [“Omercajic”]
(13) Education Act, R.S.O. 1990, c. E.2, s. 169.1.
(14) Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.
(15) Taylor, C. & Peter, T., with McMinn, T.L., Elliott, T., Beldom, S., Ferry, A., Gross, Z., Paquin, S., & Schachter, K. (2011). Every class in every school: The first national climate survey on homophobia, biphobia, and transphobia in Canadian schools. Final report. Toronto, ON: Egale Canada Human Rights Trust.
(17) Statistics Canada (2009). Police Reported Hate Crime in Canada, 2009. Retrieved from: http://www.statcan.gc.ca/pub/85-002-x/2011001/ article/11469-eng.htm#a1.
(18) Supra, no. 15.
(21) Scanlon, K., Travers, R., Coleman, T., Bauer, G., & Boyce, M. Ontario’s Trans Communities and Suicide: Transphobia is Bad for our Health. Trans PULSE e-Bulletin, 12 November, 2010. 1(2). Online: http://transpulseproject.ca/research/ontarios-trans-communities-and-suicide/
(22) Scheim, A., Bauer, G., & Pyne, J., Avoidance of Public Spaces by Trans Ontarians: The Impact of Transphobia on Daily Life, Trans PULSE e-Bulletin, 16 January 2014. 4(1). Online: Trans PULSE www.transpulseproject.ca.
(23) Kosciw, J. G., Greytak, E.A., Bartkiewicz, M.J., Boesen, M.J., & Palmer, N.A. (2012). The 2011 National School Climate Survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools. New York: GLSEN. Online: http://www.glsen.org/press/2011-national-school-climate-survey
(24) Toronto District School Board. TDSB Guidelines for the Accomodation of Transgender and Gender Non-conforming Students and Staff. (2011) at pg. 15. Online: http://www.tdsb.on.ca/AboutUs/Innovation/GenderBasedViolencePrevention/AccommodationofTransgenderStudentsandStaff.aspx [”TDSB Guidelines”]
(25) M.L. et Commission des droits de la personne et des droits de la jeunesse du Québec c. Maison des jeunes,  J.T.D.P.Q. no 22, (1998) 33 C.H.R.R. D/263.
(26) Ibid at para 172.
(27) C.F. v. Alberta (Vital Statistics), 2014 ABQB 237, (2014) 587 A.R. 332.
(28) Ibid at para 39.
(29) See for example Hogan v. Ontario (Health and Long-Term Care), Supra, no 3.
(30) R. v. Cole, 2011 ONCA 218, (2011) 105 OR (3d) 253. See also R. v. M. (M.R.),  3 S.C.R. 393 and Chiang v. Vancouver Board of Education and others, 2009 BCHRT 319 at para. 13.
(31) Human Rights Act, SNWT 2002 c. 18, section 5(1). See also Jena McGill & Kyle Kirkup, “Locating the Trans Legal Subject in Canadian Law: XY v Ontario” (2013) 33 Windsor Review Legal & Social Issues 96 at 108.
(32) Human Rights Code, R.S.O. 1990, c. H.19. See also OHRC Policy, Supra no. 5 at pg. 6
(33) OHRC Policy, Supra no. 5 at pg. 6
(34) The Human Rights Code, CCSM c H175.
(35) The Saskatchewan Human Rights Code, SS 1979, c S-24.1.
(36) Human Rights Act, RSNS 1989, c 214.
(37) Human Rights Act, RSPEI 1988, c H-12. Interestingly, it is unclear whether P.E.I. schools are prohibited from discriminating against a student’s choice of washroom pursuant to the exclusion clause in section 14(2); Alberta Human Rights Act, RSA 2000, c A-25.5; Human Rights Act, 2010, SNL 2010, c H-13.1
(38) McGill & Kirkup, Supra, no. 31.
(39) Under section 318(4) of the Criminal Code, the current identifiable characteristics are colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability.
(40) Supra, no. 27 at para. 58.
(41) Omercajic, Supra, no. 12 at pg. 6.
(42) OHRC Policy, Supra, no. 5 at pg. 22.
(43) Omercajic, Supra, no. 12 at pg. 9.
(44) Guide for Educators, Supra, no. 6.
(45) Guide for Educators, Supra, no. 6 at pg. 34.
(46) “Calgary Bishop Calls Alberta School Gender Guidelines ‘Totalitarian’ and ‘Anti-Catholic’”. CBCnews.ca January 14, 2016. Web: http://www.cbc.ca/news/canada/calgary/alberta-school-board-gender-rights-catholic-bishop-1.3404077. (47) Woo, Andrea. “Parents seek to overturn Vancouver School Board’s gender identities policy”. The Globe and Mail. November 11, 2014. Web: http://www.theglobeandmail.com/news/british-columbia/vancouver-school-board-taken-to-court-over-gender-identity-policy/article21547513/.
(48) Rands, K.E. (2009) Considering Transgender People in Education: a Gender-Complex Approach. Journal of Teacher Education, 60(4) at pg. 421.
(49) Omercajic, Supra, no. 12 at pg. 85.
(50) OHRC Policy, Supra no. 5 at pg 32. See also Re Dupont Canada Inc. and Kingston Independent Nylon Workers Union,  O.L.A.A. No. 426 at para. 67.
(51) Thames Valley District School Board. TVDSB Guidelines for the Accommodation of Gender Diverse and Trans Students and Staff. (2013) at pg. 5. Online: http://www.tvdsb.ca/safeSchools.cfm?subpage=224914.
(52) TDSB Guidelines, Supra, no. 24 at pg. 4.
(53) Weldon, Tori. “School form asks students' identified gender”. CBCnews.ca. September 14, 2015. http://www.cbc.ca/news/canada/new-brunswick/anglophone-east-district-identified-gender-1.3225169
(54) The Crown in Right of Alberta, as represented by the Minister of Education. Guidelines for Best Practices: Creating Learning Environments that Respect Diverse Sexual Orientations, Gender Identities and Gender Expressions. (2016) at pg. 5. Online: https://education.alberta.ca/safe-and-caring-schools/legislation/ [”Alberta Guidelines“].
(55) OHRC Policy, Supra, no. 5 at pg. 29. See also Chiang v. Vancouver Board of Education and others, 2009 BCHRT 319. (56) 2015 NSCA 80.
(57) Ultimately, the Court of Appeal found that the message that non-Christians will burn in a sea of flames for eternity “would entertain an unsettling distraction from [the students’] classwork”, especially non-Christian students. (58) Council of Canadians with Disabilities v. VIA Rail Canada Inc.,  1 SCR 650, 2007 SCC 15 at paras. 122 & 123. See also Renaud v Central Okanagan School District No 23,  2 SCR 970 at para 26.
(59) See for example Rawleigh v. Canada Safeway Limited, 2009 AHRC 6 at para. 327.
(60) TDSB Guidelines, Supra, no. 24 at pg. 4.
(61) Jerome Delaney, “The Charter of Rights and Freedoms: What Teachers and School Administrators Should Know” in Roderick C. Flynn ed., Civil Rights and Education. Proceedings of the Seventeenth Annual Conference of the Canadian Association for the Practical Study of Law in Education, held in Montréal, Québec, April 29-May 2, 2006. (Toronto: CAPSLE, 2007) at pg. 223.
(62) Omercajic, Supra, no. 12 at pg. 37.
(63) Payne E., & Smith M. (2014) “The big freak out: educator fear in response to the presence of transgender elementary school students”. Journal of Homosexuality, 61(3), 399-418.
(64) Winnipeg School Division. Safe and Caring Policy [Draft] at section 3.3. Online: https://winnipegsdca.civicweb.net/document/12619/Safe%20_%20Caring%20Policy%20-%20Trans%20and%20Gender%20Diverse%20St.pdf?handle=29EFE030709247A5A990B42ECD5DD514. Author’s note: This policy is only in draft form and has not been enacted as of the date of writing.
(65) Alberta Guidelines, Supra, no. 54 at pg. 7.
(66) Vancouver School Board. Sexual Orientation and Gender Identities. (2014) at section G-6. Online: https://www.vsb.bc.ca/district-policy/acb-r-1-sexual-orientation-and-gender-identities. [“VSB Policy“]
(67) Ottawa-Carleton District School Board. Gender Identity and Gender Expression: Guide to Support our Students. (2016) at pg. 7. Online: http://www.ocdsb.ca/ab-ocdsb/InclusiveSafeandCaring/Documents/Forms/AllItems.aspx. [“OCDSB Policy“]
(68) TDSB Guidelines, Supra no. 24 at pg. 8.
(69) Ibid at pg. 20. For an excellent example of how gender roles and gender identity can be worked into the curriculum for various subjects, see the Ottawa-Carlton District School Board’s policy (Supra, no. 67) at pg. 8.
(70) Guide for Educators, Supra no. 6 at pgs. 31-32.
(71) Alberta Guidelines, Supra no. 54 at pg. 8.
(72) TDSB Guidelines, Supra no. 24 at pg. 8.
(73) Alberta Guidelines, Supra no. 54 at pg. 8.
(74) VSB Policy, Supra no. 66 at section G-7(b).
(75) Ontario Federation of School Athletic Associations. OFSSA Transgender Participation Policy. Pg. 48. Online: http://www.ofsaa.on.ca/sites/default/files/bylaws_sept_2015.pdf.
(76) Winnipeg School Division. Safe and Caring Policy [Draft] at section 4.8. Online: https://winnipegsdca.civicweb.net/document/12619/Safe%20_%20Caring%20Policy%20-%20Trans%20and%20Gender%20Diverse%20St.pdf?handle=29EFE030709247A5A990B42ECD5DD514
(77) Alberta Guidelines, Supra no. 54 at pg. 9. (78) OCDSB Policy, Supra no. 67 at pg. 6.
(79) Omercajic, Supra no. 12 at pg. 140.
(80) Taylor, C. Supra no. 15 at pg. 9.
(81) TDSB Guidelines, Supra no. 24 at pg. 7.
(82) Lewis v. Sugar Daddys Nightclub, 2016 HRTO 347.
(83) Warnica, Marion. “Human Rights Victory Bittersweet, Say Parents of Toronto Transgender Boy”. CBCNews.ca. December 10, 2015. http://www.cbc.ca/news/canada/toronto/human-rights-victory-bittersweet-say-parents-of-toronto-transgender-boy-1.3358408. See also D.B. v. Toronto District School Board, 2015 HRTO 1592.
(84) Omercajic, Supra no. 12 at pg. 135.
(85) Ibid at pg. 139.
(86) VSB Policy, Supra no. 66 at Section G-8(b).
(87) Guide for Educators, Supra no. 6 at pg. 42.
(89) Alberta Guidelines, Supra no. 54 at pg. 10.
(90) McGill & Kirkup, Supra, no. 31 at pg. 138.
(91) The Guide for Educators (Supra, no. 6) contains a sample school board policy for gender identity and gender expression from pages 41 to 43. Further, the OHRC Policy (Supra, no. 5) has a Best Practices Checklist from pages 58 to 60. We highly recommend both documents when considering how to create or amend an existing policy.
(92) Thames Valley District School Board. TVDSB Guidelines for the Accommodation of Gender Diverse and Trans Students and Staff. (2013) at pg. 5. Online: http://www.tvdsb.ca/safeSchools.cfm?subpage=224914.
(93) OHRC Policy, Supra no. 5 at pg. 34.; Forrester v. Regional Municipality of Peel (Police Services Board), 2006 HRTO 13, (2006) 56 CHRR 215 at paras. 468 to 476.
(94) Lakehead District School Board. Sexual Orientation and Gender Identity Procedures. (2013) at para. 3.6. Online: https://www.lakeheadschools.ca/docs/Board/Policies%20And%20Procedures/8000%20School-Community%20Relations. See also TDSB Guidelines, Supra no. 24 at pg. 8, and OCDSB Policy, Supra no. 67 at pg. 5.
(95) Durham District School Board. Supporting our Transgender Students. (2012) at pg. 8. Online: http://ddsb.ca/AboutUs/EquityInclusiveEducation/Pages/Supporting-Our-Transgender-Students.aspx
(96) Guide for Educators, Supra no. 6 at pg. 33.
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