Labour and Employment Law Blog

On September 20, 2023, a number of protests took place across Canada at government and school district buildings against gender expression without parental consent for 2SLGBTQIA+ school aged children. This was part of a deeply concerning trend in anti-2SLGBTQIA+ sentiment across the country. Recently, Canadian Bar Association President John Stefaniuk released a statement, which stated that from 2020 to 2021 the police have reported an increase in hate crimes motivated by sexual orientation by 64%.

Earlier this year, the Supreme Court of Canada (Hansman v Neufeld, 2023 SCC 14) allowed an application to dismiss a defamation suit filed by a school board trustee in Chilliwack, BC, against a school teacher and former union president. The court’s decision was based on an interpretation of B.C.'s anti-SLAPP (strategic lawsuits against public participation) legislation. The public school trustee had made online posts criticizing a provincial government initiative designed to equip educators to instruct students about gender identity and sexual orientation. The teacher who was the subject of the defamation lawsuit referred to the trustee’s comments as bigoted, transphobic, and hateful.

In an interview, the teacher had accused the trustee of undermining safety and inclusivity for transgender and other 2SLGBTQIA+ students in schools, and questioned whether the individual trustee was suitable to hold elected office. The SCC confirmed in its decision that the teacher was protected by the fair comment defence which did not require him to demonstrate that the trustee was bigoted, transphobic, promoted hatred, or created an unsafe environment for students, only that there was a factual basis for his expression. The decision also recognized that there is a public interest in protecting “counter-speech” aimed at supporting vulnerable groups and recognized that the transgender community is undeniably a marginalized group in Canada. The Court held that any harm suffered by the trustee as a result of the teacher’s comments did not outweigh the public interest in protecting the teacher's freedom of expression.

As evident from the SCC’s decision and the recent protests, it is prudent for employers to engage in efforts to inform themselves, employees and colleagues on issues of gender diversity and expression, the use of pronouns and the significance of pronoun usage and identification, particularly for the trans and non-binary community. QMUNITY and Pride at Work Canada are two organizations that provide resources to this end.

Over 100 staff and lawyers at Lawson Lundell attended Queer Competency Training last week. The training was provided by QMUNITY, a non-profit organization based in Vancouver with the goal of improving queer, trans and Two-Spirit lives by delivering a variety of programs and services to the 2SLGBTQIA+ community.

This training included an introduction to 2SLGBTQIA+ inclusivity, and touched upon some of the following topics:

1. Understanding sexual orientation & gender identity. 
2. Creating space for intersectional identities.
3. Practical knowledge for creating safer spaces for the queer, trans, and Two-Spirit communities.
4. Indigenous and cultural notions related to Two-Spirit identities.

This was an important educational opportunity for firm members and we take this week’s blog as an opportunity to encourage employer clients to consider similar efforts to create inclusive and welcoming workplaces. Not only is this type of training an important step in maintaining safe workplaces, but it is also useful in protecting against and responding to harassment and human rights complaints and, possibly, constructive or wrongful dismissal claims.