Canadian Court Rules Intentional Misgendering is Human Rights Violation

As a win for transgender Canadians and one employee seeking justice, a Canadian court ruled last week that deliberate misgendering in the workplace is a human rights violation.

On September 29, the British Columbia Human Rights Tribunal ruled in favor of Jessie Nelson, a nonbinary and genderfluid person, who filed a complaint against their employer, Buono Osteria, claiming the restaurant discriminated against them by intentionally using incorrect pronouns in reference to them. They said that their former employers also deliberately used gendered nicknames like “sweetheart,” “sweetie,” and “honey” when referring to them.

Tribunal Representative Devyn Cousineau found in the 42-page ruling that the restaurant’s alleged actions violated Canada’s Human Rights Act. She says that pronouns are a “fundamental part of a person’s identity” and that using the proper pronouns shows “that we see and respect a person for who they are.”

“Especially for trans, nonbinary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity,” Cousineau writes in the decision. “When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.”

The tribunal ordered the restaurant to implement a formal pronoun policy, on top of a mandatory diversity and inclusion training for all managers and staff. Buono Osteria and the specific offenders also must pay Nelson $30,000 in damages, according to the CBC.

Nelson said in court that they had already made numerous efforts to explain the importance of being gendered properly in the workplace and knew that some coworkers would make mistakes or need more time. They said some were “proactive and diligent” about using the correct pronouns, but namely their manager consistently and intentionally misgendered them, which Nelson said was “offensive, degrading, and minimizing.”

Nelson was fired from the company as a result of the mistreatment, they say. A June 2019 staff meeting, where Nelson suggested to use of gender neutral language for restaurant guests, ended with their manager rejecting the idea, saying he wasn’t about to change the way he spoke to guests unless his manager ordered him to.

Nelson attempted to speak to their supervisor about their working relationship, which turned into a larger confrontation, where he claimed Nelson was trying to “police our language” and that it “went against what his grandfather had fought for in the war.”

As a result, managers felt the two could no longer be in the same building together and terminated Nelson. Nelson tried to get a reason for their termination, because overall they received positive feedback about their performance, and the only rationale management relayed was Nelson’s “militancy” and a claim that they did not “fit in” with the staff.

Nelson expressed in the complaint that being targeted at their workplace because of their gender identity made them feel “incredibly dysphoric,” adding, “I’ve lived my entire life attempting to self‐express and figure out who I am and find a place in this world, and I’ve worked very very hard and gone through a lot to get here. And it’s a challenging battle to have on a daily basis, even when people don’t mean it, let alone when somebody is doing it purposely.”

It’s the first case to test new trans-inclusive provisions added to Canada’s Human Rights Act four years ago. The country passed parliament bill C-16, adding protecting on the basis of gender identity and expression in its existing nondiscrimination hate crimes laws at the federal level.