Reasonable Doubt: Is gender segregation the next human rights issue?

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      “So, I’ve checked and there’s availability at the hostel you want to stay at…they just um…need to know if you want to stay in the women’s dorm room or the men’s….”

      I cringe when I remember it. It was so, so painfully awkward. I was working at a tourism centre and part of my job was to help travellers arrange their accommodation. The visitor that I was helping wanted to get a bed in a hostel for the night, and the hostel had gender-segregated dorm rooms. The problem was that the visitor had no distinguishing “male” or “female” features that I could see, and a foreign name that gave me no clue one way or the other.

      I bit the bullet and asked. It went over like a lead balloon. The woman was offended. It was a bad day at the office.

      At the time, I felt like I had committed a monumental faux pas. Most of us treat gender as an integral part of our identity. We’re born as either male or female and, generally, are raised to look and act as our society expects men and women to look and act.

      Over the last few years, however, there has been increasing awareness that not everyone is so easily compartmentalized. Not everyone is cisgender (meaning, for example, to be born male and to identify as a man). Some people are born intersex while others may be transgender or gender-neutral. For those that don’t fit into the traditional “male” or “female” construct, they may be left feeling socially excluded, and often endure discrimination, bullying, and even violence.

      With these gender identity issues increasingly coming to the foreground, should the goal be to evolve to a point where gender segregation becomes as socially repugnant as racial segregation?

      Like race, sex is a protected ground under the B.C. Human Rights Code. Courts and tribunals have interpreted “sex” to encompass correlated issues like discrimination based on pregnancy and sexual harassment. While some provinces’ human rights legislation explicitly includes gender identity as a protected ground, British Columbia’s does not. The B.C. Human Rights Tribunal has, however, considered gender identity discrimination to be included in the ground of sex. 

      While the tribunal may be protecting individuals from discrimination on the basis of gender identity in practice, the legislature’s failure to explicitly recognize gender identity as a protected ground still raises concerns.

      “If the people that the law is meant to protect don’t understand that the law protects them, that’s an issue,” says Preston Parsons, a lawyer with Overholt Law Corporation and co-chair of the Canadian Bar Association’s Sexual Orientation and Gender Identity Conference (SOGIC)–British Columbia Branch.

      Despite the lack of clarity in the law, significant headway has been made in advancing the rights of transgender persons and bringing the issues into public forums. The Vancouver school board recently adopted a trans-inclusive policy whereby, among other commitments, schools will:

      …reduce or eliminate the practice of segregating students by sex. In situations where students are segregated by sex, trans* students will have the option to be included in the group that corresponds to their gender identity.

      As part of this initiative to move towards an elimination of sex segregation, students will have the option of adopting gender-neutral pronouns xe, xem, xyr (pronounced with a “zee” at the front and meant to rhyme with he, them, and their).

      “The VSB’s decision to adopt trans-inclusive policies is welcome and commendable. Indeed, to trans* students, the adoption of this policy speaks volumes and helps pave a road away from fear and harm. It sheds light on a systemic, societal issue and all school districts should be looking at creating inclusive environments,” says Parsons. “The first step in advancing any equality movement is exposure—getting people informed and talking about the issues.”

      While these gender issues are garnering increasing attention, it is becoming clear that there is a real drive towards the elimination of sex segregation.

      The British Columbia government recently introduced a bill that would allow individuals to change the sex designation on their birth certificates without the need to undergo a sex reassignment surgery. Yet advocates have gone a step further: recently, a complaint was filed challenging the inclusion of sex on birth certificates altogether. Arguments are being made that the inclusion of sex on a birth certificate is archaic; the male/female sex divide does not reflect the sex/gender spectrum.

      If a radical approach to eliminate gender segregation were adopted, we would see the complete eradication of gender segregation in all aspects of life. There would no longer be men’s and women’s washrooms, sports, or communal change rooms. 

      Still, a move to eradicate systemic gender segregation, would inevitably have fallout that would need to be addressed.

      There are legitimate safety concerns behind some gender segregation. Physical and sexual violence suffered by women at the hands of men continues to be a sad reality. It is difficult to see how women prisoners will be adequately protected if sex segregation is eliminated in prisons.

      It also begs the question about whether we can eliminate sex segregation when we have not yet achieved gender equality. Would such a movement nullify the gains fought for by feminists over the last century? There was a time when it was seen as a huge win for women in trades when employers were required to provide separate washrooms for women. Further, we cannot ignore the physiological differences between men and women that put women at a disadvantage in many sports. We would likely see far fewer female Olympians.

      While a radical approach to eliminating gender segregation on the whole may not be feasible just yet, the VSB policy and recent legislative amendments show a step in the right direction towards social inclusion for individuals on all points of the gender spectrum. 

      Carmen Hamilton is a lawyer practising in Vancouver. Reasonable Doubt appears on on Fridays. You can send your questions for the column to its writers at

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.




      Jun 20, 2014 at 12:03pm

      Radical inclusiveness is certainly just that, isn't it? Radical. My question is why go so far? Will the needs of those who aren't male/female or don't want to be tagged as either not be fulfilled by the creation of the third categorization of X (xe, xem, xyr)? Many of us are perfectly fine with all our "differences" and actually want to embrace them. Diversity is not a four letter word.the rainbow doesn't only have one colour so why should humanity?


      Jun 20, 2014 at 1:28pm

      I'm all in favor of letting women use the men's locker room. I'll even help shampoo their hair!


      Jul 4, 2014 at 4:03pm

      well why not just stop doing anything that would identify one's gender. if as some idiots believe there are 6 genders ( as in ON public school curriculum) then every form and other document would have to include a general line that says what are you ? but there could be no ramifications for refusing to answer that question. Or maybe all could be required to wear full face covering so gender would be unidentifiable.

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      Jul 7, 2014 at 1:58am

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