Statement on Employment Equity Act, May 2022

 As members of the Vancouver Lesbian Collective we have a vested interest in the review of the Employment Equity Act for federally regulated industries, particularly as it considers adding LGBTQ2S+ workers as a distinct category and considers if changes should be made to the EEA to reflect current understandings of gender equality.

Data on sexual orientation must be collected separately

First, on the point of adding LGBTQ2S+ people as an employment equity category, a class action settlement agreement related to a purge of primarily lesbians and gays from the Canadian Armed Force, RCMP, and federal public service was reached in 2018. This settlement recognized the systematic discriminatory harassment and dismissal of primarily lesbian and gay employees of these federally regulated employment contexts between the 1950s and the mid-1990s. While the settlement is an important recognition of these past wrongs, this history also provides an important context now for developing mechanisms to ensure such discriminatory conduct is not repeated and that all members of Canadian society, including LGBTQ2S+ citizens and residents, have fair employment opportunities and conditions.

As lesbians, however, we do not support the inclusion of LGBTQ2S+ people as an employment equity category if inclusion does not differentiate between the constituent member groups and if inclusion is made on the basis of gender rather than sex. The first three groups listed in the acronym (lesbians, gays, and bisexuals) are composed of people who are same-sex attracted. The next groups (trans people, queer people, two-spirited people, and others) are composed of people who generally have gender identities (an internal sense of their gender) and/or heterodox gender expression (name, manner of dress, social role, etc that is not normatively associated with their sex). They may or may not be same-sex attracted. Sexual orientation and gender identity describe different experiences of the world that can overlap or co-occur in the same individual, but do not necessarily in all cases. Consequently, data and employment equity measures related to these disparate experiences should be collected separately. This will mean collecting sexual orientation data to understand the opportunities afforded to and treatment of lesbians, gays, and bisexuals and separately collecting data on gender identity/expression to understand the opportunities afforded to and treatment of people who identify as trans, non-binary, queer, two-spirited, or in other gendered terms. 

Biological sex-based needs must be accommodated

Further, information on biological sex, in addition to sexual orientation, must be collected as a priority within the revised Employment Equity Act. Lesbians and women in general face employment equity issues related to our sex and commonly experience sex-based discrimination in the workplace. For example, menstruation, pregnancy, childbirth, lactation, and child care exclusively or disproportionately impact women. Fair employment for women requires working conditions that accommodate these realities. Equity of access to employment has characteristics based on sex, such as women’s historical and continued exclusion from certain professions, physical requirements of the job that may favour males over females, and the need for private sex-specific spaces to accommodate different biological needs in comfort and privacy. Sexual harassment and assault in the workplace are disproportionately committed by males against female employees and require provision in policy and practice that protect women from these harms. Women have yet to achieve pay equity with men whether we compare female-predominant and male-predominant work contexts or look at men and women within the same work context. Women may require more robust pension provisions as we tend to live longer and earn less during our lifetimes. This reality is doubled for lesbian couples. Accurate data on biological sex must be kept in order to know of these issues, their impact, and the measures needed to address them.

Despite the urgency of understanding women’s employment equity and other equity issues from the perspective of sex and sex inequality, in 2018 the Government of Canada adopted a policy of preferentially asking and recording gender over sex. The Vancouver Lesbian Collective fears that it is the intention that the revised Act will follow this policy if it is not doing so already. This would be a disaster for ensuring support to equity seeking groups, particularly women, whose definition and distinction is sex-based. Similarly, it would prevent fulsome accountability, compliance, and enforcement measures related to any equity provisions for groups whose definition is sex-based, particularly women. Gender has now come to be a wide-open category meaning anyone can choose their gender based on their internal feeling. Problems of males identifying as women and being recorded in official statistics as such are cropping up worldwide. Groups of feminists have brought lawsuits to force their governments to continue to collect data on sex in order to ensure that accurate data on the condition of women in society is recorded and accessible. Replacing sex with gender in employment data would have particularly adverse consequences as women are highly disadvantaged with regard to employment opportunities, earnings, sexual harassment, and sex-based discrimination in the workplace. As Jonathan Portes, former chief economist at the Department for Work and Pensions in the UK has said, allowing self-declared gender identity to trump biological sex in official statistics has the potential to make it more difficult to track and tackle issues such as the gender pay gap and inequality in childcare, social care, housing and health.

Political beliefs must not be grounds for discrimination

Recently, a novel equality issue has arisen in employment contexts in several jurisdictions. Employees, mostly women, who have raised concerns about the privileging of gender-based reporting and accountability measures over sex-based ones are threatened with loss of employment. The most famous such case is that of Maya Forstater in the UK, who recently took her former employer to employment tribunal after she was not rehired due to her gender critical beliefs. People who are gender critical may not personally believe in the concept of gender identity, may see sex as primary, and may refuse, for example, to include pronouns in email signatures and the like. In employment contexts, it is important to uphold the rights of those who both hold to beliefs in gender identity and those who do not. The Employment Equity Act should not infringe on the right of any employee to hold political and/or religious beliefs not shared by his or her colleagues and superiors. Refusal to participate in the beliefs of others is not a form of discrimination. It is part of the fundamental freedoms guaranteed by the Canadian Charter of Rights and Freedoms just as sex is part of the Equality Rights similarly guaranteed by the Charter.

Both sex and sexual orientation must be grounds for employment equity

Finally, retaining sex and adding sexual orientation as employment equity grounds are necessary for fair employment conditions in federally regulated work contexts. Sex as an employment equity ground can even protect individuals from discrimination on the basis of gender identity/expression, as discrimination against gender variant individuals is often based in the fact that they do not conform to the social expectations of their sex. In other words, it is a form of sex discrimination. However, if sex and sexual orientation-specific data is not collected within the Employment Equity Act, it cannot be acted upon, and, as a result, women and LGB people employed in federally regulated contexts are likely to lose ground. This should not be the outcome of the Employment Equity Act.