Transphobia

In 2018 there were three individuals working in the kitchen at a bar in Hamilton who used the pronouns they/them. One identified as gender queer and the other two identified as non-binary trans.

A person who is gender queer does not subscribe to conventional gender distinctions. They identify with neither male nor female, or both or a combination of male and female genders. The term non-binary describes a wide array of different identities which fall outside of the gender binary that can be related to or completely separate from male and female gender identities. The term trans indicates that the person has a sense of personal identity in gender that does not correspond with their birth sex. All of these kitchen staff had asked the other employees and the bar owner to refer to them as they/them. The bar owner ignored their request and referred to them in gender terms. Another employee told them that they had heard the boss referring to his kitchen staff as “trannies”. He was heard one day saying to a customer “Guess what? I have four trannies in my kitchen!”. 

Although there was more than three potential complainants, only three of them filed complaints with the Ontario Human Rights Tribunal. One of them confronted the boss by text message with respect to what he had said to the customers and asked that he make it right. He denied it and said that he had referred to them as “LGBT”. He texted that he felt like he was walking on egg shells around them trying to use proper pronouns. Obviously he thought they were being too sensitive. The recipient of this text message was too upset to work their scheduled shift that day and the boss texted asking if they were quitting. They indicated that they were not prepared to work that day and were disappointed with his failure to be accountable and address the complaint. They said they did not want to quit and would be there for the next scheduled shift. The boss’s response was “I’d hate to lose you but if I can’t convince you that I didn’t say it I’m wasting my time”. The person the boss had been texting was the Kitchen Manager. They had felt unsafe when they had first heard about the boss’ behaviour and that was only heightened by the exchange. They worked one more shift and then ended the relationship. The other 2 individuals filed a formal written complaint through their lawyer but never got a response and soon thereafter stopped working for the restaurant. 

They filed a Human Rights complaint which was decided long after the restaurant had closed. In it the adjudicator wrote that “Gender queer and non-binary trans people are a historically disadvantaged group protected from discrimination under the Code, under the grounds of gender identity, gender expression and sex. The adjudicator found that the term “trannies” is a transphobic slur and that it was egregious. The adjudicator accepted that all of the complainants felt they had to eventually leave the boss’ employment given his dismissive nature with respect to their concerns and complaints. The bar owner and his restaurant were ordered to pay over $40,000.00 in lost wages and general damages to the 3 complainants. The adjudicator found that the boss’ public comment was shocking and hurtful and aggravated by the fact that he denied the behavior and then went silent. It is important to note that on reading the decision the damages flowed primarily from the boss’ comment to his customers and his failure to deal with the concerns. There was no evidence about how often he had misgendered the complainants. There is nothing in this case to suggest that inadvertently misgendering somebody would lead to a Human Rights complaint or a damage award.

I do not believe any Human Rights adjudicator would award damages for misgendering as a result of occasional inadvertence. If that “inadvertence” becomes persistent to the point that it can be inferred that it is intentional or malicious, it will land an employer in trouble. No doubt some will try to politicize this case claiming it is political correctness gone too far. It is nothing like that. It is about a malicious individual who obviously knew that labeling his staff “trannies” was mean and beyond the pale. Otherwise he would not have denied it. If he had simply accepted responsibility, apologized and promised to do better, maybe his restaurant would still be open.