Undue Hardship

When I began my transition, I was given a “carry letter.” I was never asked for it, but I was assured it might be necessary, especially if I travelled.

If there is a legal situation, as there was in Canada, as there might yet be in the United States, where medical treatment trumps identity, why is it unreasonable?

In Canada, under human rights law, there is a duty to accommodate to the limit of undue hardship.

For whom is the hardship undue? This is a balance between each employer and each employee, between each individual and the public.

The balance is different when one is on Real Life Experience than when one is not; this was specifically addressed, and with respect to washrooms, in the British Columbia Human Rights Tribunal decision in 1999, Sheridan v. Sanctuary Investments.

It is undue hardship for an employer to fire an employee who crossdresses on their own time, but is it undue hardship for the employee not to crossdress on the job?

It is undue hardship on the person who is required to take medical treatment for the medical condition of transsexuality not to use the washroom that conforms with the sex she is working towards; is it undue hardship for someone who presents cross gender part time to use the washrooms that conform to their birth-assigned sex, not their part time gender presentation?

The line between medical requirement and full time presentation regardless of medical status seems to have dissolved in Canada which would address the concerns of those who, for whatever reasons choose NOT, or are not able, to physically transition.

Employers and club/gym owners still have the duty to accommodate pre-op transsexual people, yes, those who can prove they are on Real Life Experience, to the point of undue hardship, which means providing alternative, family, or whatever, changing/shower facilities–but there are limits.

Some will argue this net isn’t wide enough, and those who are not full time must also be included.

I understand that the onus of showing undue hardship lies on the part of those who endure it. In a legal environment where the duty to accommodate is the expectation, this showing is not the barrier those who seek absolute edicts fear.

I am increasingly curious and concerned about the lack of concern for those not part of our populations: those neither transsexual nor transgender–though the latter population can be construed to be an enormously large number of people, including gay and lesbian people and those neither homosexual nor transsexual.

One of the things I see all the time in discussions by Americans on these issues is the absolute position they take–their belief is the only permissible one.

Agreement among our populations is difficult to achieve, is so hard even to think, possibly growing out of struggle with the rabid views of those who will never agree with us, but what about the broad mid ground? I actually believe there is still something left of the mid ground, between our populations and those who will never agree with us, despite the ongoing polarization of America and its ongoing infection of Canada.

With extreme polarization no agreement is possible; the only possible solution is elimination, edict will not suffice.

Duty to accommodate to the limit of undue hardship is a very workable way to bring all people of good will, on all sides–they do exist–into the discussion, the education, and the solution I had assumed people who subscribe to equality also subscribed to.

2 Responses to Undue Hardship

  1. dgreatblog says:

    I really enjoyed reading your blog post here. It was very informative and I also digg the way you write! Keep it up and I’ll be back to read more in the future.

    thank you

  2. [...] those at a disadvantage.  In Canada, the law needs to accomodate up to the limit of “undue hardship,” a caveat that prevents any one protected class from trumping another unreasonably.  It [...]

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