Is it Time to Adjust Your Gender Lens? - Fogler, Rubinoff LLP
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We are pleased to introduce Forward with Foglers: Trends and Ideas, a new
quarterly publication designed to share our perspectives and insights around
matters that are important to our clients both inside and outside the boardroom.
In honour of International Women's Day 2021 and the theme of Choose to
Challenge, our first issue is focused on promoting discussions around gender.
Article #1
Is it Time to Adjust Your Gender Lens?
Andrea M. Marsland and Emily Duncan
In Ontario, the Human Rights Code (the "Code") prohibits
discrimination on a number of grounds including sex, family status, Andrea M. Marsland
Partner
gender identity, and gender expression. Despite these protections, we t: 416.365.3703
amarsland@foglers.com
live in a world where global headlines still include "Transgender
America: 30 Killed and Fatally Shot Already in 20201", "Teacher Fired
over Transgender Pronoun Fight Files Suit2", "Man arrested for
allegedly spitting on transgender woman in subway3", and "Activist
who raised awareness for transphobia murdered in Toronto4". These
Emily Duncan
articles discussed, respectively, (i) how 2020 was the most violent year Associate
t: 416.864.7621
eduncan@foglers.com
1
Source: Forbes, October 2, 2020 at: https://www.forbes.com/sites/jamiewareham/2020/10/02/30-trans-woman-have-now-been-violently-murdered-in-america-in-
2020/?sh=31474e5264a4
2 Source: The New York Post, October 1, 2019: article at: https://nypost.com/2019/10/01/teacher-fired-over-transgender-pronoun-fight-files-suit/
3 Source: CNN, February 1, 2020: article at: https://www.ctvnews.ca/world/man-arrested-for-allegedly-spitting-on-transgender-woman-in-subway-1.4793636/
4
Source: The Globe and Mail, December 26, 2019 at: https://www.theglobeandmail.com/canada/toronto/article-activist-who-raised-awareness-about-transphobia-
murdered-in-toronto/
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021Trends & Ideas • 2021
for transgender people in America over five years, (ii) the firing of a teacher who refused to use
a transgender student's preferred pronoun, (iii) the story of a trans woman who was spit on, hit,
and called transphobic slurs on the subway in New York City, and (iv) the murder of a trans
activist in Toronto. These stories were all published between October, 2019 and October, 2020.
Otherwise said, this is not "old news".
What Does Gender Really Mean?
Discrimination based on sex, gender identity and gender expression is not as binary as being
discriminated against because you are a woman or a man. In June, 2012, Ontario added the
protected grounds of gender identity and gender expression to the Code. But, what do these
terms mean? A little education can go a long way. While the Code does not expressly define
the grounds of gender identity, gender expression or sex, the Ontario Human Rights
Commission ("OHRC") provides valuable guidance with respect
to understanding these key terms. Sex is the anatomical
classification of people as male, female, or intersex, usually
assigned at birth. Gender identity is a person's internal and Discrimination based
individual experience of gender. It is a person's sense of being a on sex, gender identity
woman, a man, both, or neither, or anywhere along the gender and gender expression
spectrum. A person's gender identity may be the same as or is not as binary as being
different from their birth-assigned sex. Notably, a person's discriminated against
gender identity is fundamentally different from, and not related because you are a
to, their sexual orientation. Gender expression is how a person woman or a man.
publically expresses or presents their gender. This can include
behaviour and outward appearance such as dress, hair, makeup, body language and/or voice. A
person's chosen name or pronoun are also common ways of expressing gender. Trans or
transgender is an umbrella term referring to people with diverse gender identities and
expressions that differ from stereotypical gender norms. It includes, but is not limited to,
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021
people who identify as transgender, trans woman (male to female), trans man (female to male),
transsexual, cross-dressers or gender non-conforming, gender variant or gender queer.5
Is Gender Discrimination Really That Bad?
Unfortunately, discrimination comes in all shapes and sizes such that words like bias, prejudice,
stereotyping, transphobia and cisnormativity are everyday words in certain circles. According
to a source cited by the OHRC6, 98% of trans-Ontarians reported at least one experience of
transphobia; nearly 75% of trans people have been made fun of for being trans; over 25% have
experienced physical violence because they were trans; nearly 25% reported being harassed by
police; and trans women experience transphobia more often than trans men.7
Discrimination happens when a person experiences negative treatment or impact, intentional or
not, because of their gender identity or gender expression. It can be direct, obvious, subtle or
hidden, but painful and harmful just the same.8
Harassment can be a form of discrimination which can include sexually explicit or other
inappropriate comments, questions, jokes, name calling, images, email messages or social
media postings.9
What About Gender Equality at the Organization Level?
The Code recognizes that everyone has the right to define their own gender identity. Trans
people should be recognized and treated as the gender in which they live, whether or not they
have undergone surgery, or their identity documents are up to date.10
The OHRC provides good guidance for organizations. From an organizational perspective,
organizations should have a valid reason for collecting and using personal information that
5 Source: Ontario Human Rights Commission: http://www.ohrc.on.ca/en/gender-identity-and-gender-expression-brochure ("OHRC Brochure")
6 Source: Ontario Human Rights Commission cites Ontario-based Trans PULSE Survey (R. Longman et al., Experience of Transphobia among Trans Ontarians. Trans
PULSE e-Bulletin, 7 March, 2013. 3 (2), online: Trans PULSE www.transpulseproject.ca
7 Source: Ontario Human Rights Commission: http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression/4-bias-
and-prejudice
8 Source: OHRC Brochure
9 Ibid.
10 Ibid.
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021 identifies one's gender. They should keep this information confidential. The OHRC provides guidance that trans people should have access to washrooms, change rooms and other gender- specific services and facilities based on their lived gender identity (i.e., meaning the gender with which they identify). Dress code policies should be inclusive and flexible. They should not prevent trans people and others from dressing according to their lived gender identity or their expressed gender.11 Education is also crucial to understanding, acceptance and equality. Diversity and inclusion should not just be a buzz word for the year 2021. Diversity refers to the traits and characteristics that make people who they are or themselves. It refers to the practice of involving people from a range of different backgrounds and perspectives. Inclusion refers to the behaviours and social norms that ensure people are included and feel welcome. On December 10, 2019, Global News published a story with the following headline "Toronto Police Service Hires First Openly Transgender Officer12". Global News interviewed Constable Danielle Bottineau, LGBTQ Liaison Officer for the Toronto Police. Constable Bottineau said "we've had our ups and downs" but that she was "happy in the direction that we are going". On its face, this feels like a good news headline, but we should ask ourselves, are we doing enough? In keeping with our theme for International Women's Day, let's "Choose to Challenge". 11 Ibid. 12 Source: Global News, December 10, 2019: article and interview at: https://globalnews.ca/news/6279112/toronto-police-myles-glazier/ This publication is intended for general information purposes only and should not be relied upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021 4814-9137-6351, v. 1
Trends & Ideas • 2021
Article #2
Celebrating International Women's Day
Lori A. Prokopich, Monica E. Bianchini and Diana F. Saturno
Last year, Foglers' FR Women's Network celebrated International
Women's Day with guest speaker Connie Walker, an award-winning Cree Lori A. Prokopich
investigative journalist who is leading the dialogue on Indigenous Partner & Co-Chair FR
Women's Network
women's rights in Canada. t: 416.941.8839
lprokopich@foglers.com
Connie started her career with CBC in 2001, and was the writer and host
of the much-acclaimed CBC News podcast, Missing & Murdered, which
has been downloaded almost 30,000,000 times. Connie spoke from the
heart and took everyone through a thought-provoking history of the
coverage of Indigenous issues in the media over the last 25 years. Monica E. Bianchini
Partner & Co-Chair FR
Women's Network
Re-emergence of Indigenous Voices in the Media t: 416.864.0427
mbianchini@foglers.com
At the event Connie described her career trajectory as a journalist at CBC;
the influence of the Truth and Reconciliation Commission's report; how
the coverage and reporting on Indigenous issues has evolved in the
media; and the rise of social media and the platform it has provided.
Diana F. Saturno
In 2013, CBC Aboriginal was created, and Connie spoke of how it provided Associate
t: 416.864.7624
a dedicated space for Indigenous content under one banner. Today, the dsaturno@foglers.com
site is called CBC Indigenous and has 10 dedicated Indigenous reporters
pushing into the spotlight a diversity of stories and issues that are
important to Indigenous communities across Canada. Connie also
described how reporting on the Truth and Reconciliation Commission for
CBC impacted her greatly. The impact of residential schools for the
Indigenous community was finally brought to light through the
Commission's report, and unfortunately "not a single Indigenous person
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021
in Canada was not touched by the legacy of residential schools."
In 2015, Connie became part of a CBC unit that was devoted to investigating missing and
murdered Indigenous women. CBC launched an interactive database and, through an
exhaustive process, probed more than 250 unsolved cases.
From this, the Missing and Murdered podcast was developed.
The second season podcast, titled Finding Cleo, provided seven
Finding Cleo, provided hours of investigative reporting over 10 episodes, and has been
seven hours of downloaded almost 30,000,000 times. Connie remarked that
investigative reporting bringing these unsolved cases to the attention of the public in the
over 10 episodes, and podcast format permitted the reporters to explore issues,
has been downloaded including the legacy of the residential schools program, in a more
almost 30,000,000 in-depth manner. The opportunity to provide the context
times. surrounding the events allowed for a greater understanding of
the choices made by the individuals involved. Of note, Connie
spoke about the importance of representation in reporting and
how, when voices are represented, their stories are heard.
When Connie finished her presentation, you could hear a pin drop in the room. Guests
commented that her talk was both informative and poignant. According to one guest:
"Fogler, Rubinoff LLP organized one of the best International Women’s Day events I
attended. Apart from flawless logistics that allowed participants to network with ease, I
was first and foremost impressed with the topic and the speaker of the event.
'We Don’t Need a Voice, We Need More Microphones’, with award-winning journalist
Connie Walker, took us all on a journey of understanding a part of history that’s so
difficult to talk about, because it hurts: the abuse and discrimination that native people,
particularly women, were subjected to until not very long ago. I think it also shed a bit of
light on how far we’ve come and how further we need to still go to make things right.
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021
It was a brave topic to choose, that’s long overdue and one that certainly puts Fogler,
Rubinoff LLP at the forefront of any diversity & inclusion discussion. I hope you organize a
similar event soon, this one was outstanding!"
We truly appreciate Connie sharing her experience and perspective in such a compelling
manner. Connie was the recipient of the Canadian Journalism Foundation's Landsberg Award,
which celebrates a journalist who is raising awareness about women's equality issues in Canada,
and truly deserved being recognized in this way for her work.
After 18 years as a reporter and investigative journalist with CBC, Connie recently joined Gimlet
Media based in New York to continue with her investigative reporting and podcasts. Connie's
current project is an 8-episode Gimlet series that explores the mysterious disappearance of an
Indigenous woman named Jermain Charlo. You can follow Connie at @connie_walker.
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021
Article #3
Retention of Women in Law – An Opportunity for Fogler, Rubinoff LLP
Myriah L. Graves and Diana F. Saturno
In the "Before Times" in 2020, I attended the Women in Law Summit,
hosted by Canadian Lawyer magazine. The purpose of the conference was
to focus on practical strategies that law firm leaders can employ to help
attract and retain female lawyers. My biggest take away from the Myriah Graves
Director of Professional
conference is that law firms and law firm leaders want to support women Development
t: 416.941.8846
in law but there are still lots of questions, with no simple answers, about mgraves@foglers.com
how to make this happen.
Some Interesting Stats
Women began to enter the legal profession in larger numbers in the early
1970’s. Twenty years later, female students accounted for roughly half of Diana F. Saturno
Associate
law school students across the country. Since that time, the number of t: 416.864.7624
dsaturno@foglers.com
women practicing law has increased by about one per cent annually, and
today women account for about one third of the legal profession. The
issue is, although women have arrived into the legal profession, they are
not staying at law firms and are not becoming partners at law firms.
The LSO’s 2018 annual report found that about 12.4 per cent of lawyers in
Ontario were male law firm partners, compared to only 4.3 per cent of
lawyers who were female partners. In practical terms, what this means is
that out of 23,594 male lawyers, 5,168 were partners and out of 17,982
female lawyers, 1,770 were partners. Women have arrived in the practice
of law but they are not staying and rising up the partnership ranks.
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021
Why Do Women Leave?
At the conference, the consensus seemed to be that the traditional practice model does not
generally allow for women to balance the interests of being a lawyer and the demands women
face outside the office (whether this be caring for children or family members). The research
supports this theory. The research shows that women lawyers leave the practice of law for a
variety of reasons:
discrimination still exists in how women are treated and offered work;
women still carry a heavier load of childcare and domestic duties than their husbands;
women are less likely to have stay-at-home spouses to support them in full-time work;
and
women are less likely than men to identify themselves solely by the title on their business
cards. They wish to have other interests in their lives.1
A Problem With No Easy Solution
Canadian law firms recognize the need to address this problem.
Many of Canada's leading law firms, including Fogler, Rubinoff,
have signed on to national initiatives to increase female ranks in There are many
senior positions, including the Law Firm Diversity and Inclusion women who want to
Network and the 30% Club Canada, whose member firms balance their careers
commit to promoting and achieving diversity, including gender with family
balance. Many are also signatories to the Justicia Project, a law- responsibilities – this
society initiative in several provinces where firms commit to the should not be the
retention and advancement of women. While these initiatives exception, it should be
are a great start, more needs to be done to give effect to the the rule.
goal of retaining and advancing women.
Retaining and advancing women can take many forms. Creating an internal support network of
women in various stages of their career can foster a community of sharing and creating
solutions. With law often being a silo practice, it is important to recognize the importance of
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021
community when conferring with individuals on a systemic group issue. As well, hiring female
associates will effectively create a space where women in a similar age bracket can discuss
issues that are important to them and build a voice within their firm. If women's issues are not
heard, they will not be addressed. Women need an opportunity to be heard and this is
increased when there is a larger voice.
This challenge provides us all with an opportunity to work to change how we practice law, to
allow for more flexibility and more options (for both women and men), and to ensure that we
are being more inclusive and losing less talent. There are many women who want to balance
their careers with family responsibilities – this should not be the exception, it should be the
rule. If the practice of law can evolve to allow all lawyers this opportunity, which will effectively
normalize balance, many women may decide to stay in private practice.
Some practical suggestions that came out of the conference were:
start networking events at 4:00 p.m. to help accommodate women that have family
responsibilities at home in the early evening;
encourage men to take parental leaves;
pairing female partners with female associates. Young female lawyers at Fogler, Rubinoff
have positively responded to working under a female partner, as it teaches them not only
that it is possible to remain in (big) law, but that it is possible through effective practice
management. The reality is (and without wanting to exclude or generalize), women need
to learn how to balance from the individuals who know how to balance;
after coming back from a maternity leave, be paired with a senior women in a leadership
role who understands what the transition back to work is like;
recognize female talent and invest time, money and resources into them;
ensure that the law firm has a merit based compensation policy that recognizes firm
minded behaviour and not just client origination; and
create a space where hard conversations can take place with people that are willing to
listen.
This publication is intended for general information purposes only and should not be relied
upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021
4814-9137-6351, v. 1Trends & Ideas • 2021 Let's continue to have these important conversations to generate ideas and strategies to create the outcome we desire. We must work to try and articulate what success means and how we all can support women generally to ensure that they are poised for success. _____________________________ 1Source: Linda Robertson, "What Law Firms Can do to Stop the Exodus of Women", www.cba.org This publication is intended for general information purposes only and should not be relied upon as legal advice. © FOGLER, RUBINOFF LLP. ALL RIGHTS RESERVED. 2021 4814-9137-6351, v. 1
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