Howard Levitt: Halton school board has the power to ban trans teacher’s outfit, it’s just too scared to use it
Recognizing gender identity does not permit vulgarity or sexualization
By Howard Levitt and Peter Carey
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Howard Levitt: Halton school board has the power to ban trans teacher’s outfit, it’s just too scared to use it Back to video
In 1976 Tom Malloy wrote a book titled Dress for Success. We highly recommend it. Mr. Malloy understood that how you dress is intimately connected with your work. His thesis is that your dress should complement your work and effects how you are perceived by colleagues, customers and your employer.
This brings us to the topic de jour. Unless you have been living in a cave, you are aware of the curious case of one Kayla Lemieux. Lemieux is a biologically male shop teacher in Ontario’s Halton District School Board who this term attended school wearing a blonde wig and enormous prosthetic breasts with prominent protruding nipples. Pictures of Lemieux, who has advised that she is a transgender person, are readily available on the internet to anyone emerging from that cave. Indeed, she has become an international sensation. There is no question that Lemieux’s attire, particularly the giant prosthetic breasts, are completely inappropriate for the occupation of a high school teacher, a presumptive role model to the next generation.
Recently the Halton District School Board has pronounced that it is legally unable to impose a dress code on Lemieux, thereby becoming an international laughing stock. The suggestion is so stupid and contrary to the law that we wonder what motivated it. However, the pronouncement has cowed parents who had been agitating for the board to stop her teaching their children in that attire.
Even in a unionized environment, an employer always has the right to ensure that employees are appropriately attired. By appropriately, we mean in a fashion appropriate to the position and which does not alienate customers, other employees and others with whom they deal.
This is hardly provocative. As lawyers, we have to wear robes when in court (and let us tell you, those things are hot in the summer). Even when not robed, we have to wear “business appropriate” clothing. Jacket and ties or business casual for males and similar attire for female lawyers. Even if we don’t feel like it, we still must dress that way. Our job is to get the best results for our clients, and we achieve that by dressing in a fashion which shows respect for the judiciary, clients and fellow counsel.
The members of the Toronto Symphony attend concerts dressed in black because that does not distract from their music. If a member of the TSO attended in a lime green jumpsuit they would be sent home immediately (as would we if we wore such a costume to court).
In restaurants all over the world, servers are told to wear a uniform. In offices everywhere, employees are to dress in a respectful dignified manner. No one bats an eyelash at this. The reach of human rights legislation is only to protect employees, women in particular, from being forced to wear sexualized attire unless that attire is necessary for the position, subject to narrow exemptions. It is not to protect anyone’s right to dress garishly under any pretense.
Why then is the Halton District School Board allowing this garish, sexualized, hyperbolic, provocative, in short, completely inappropriate attire? One has to conjecture that they are a victim of “wokeness.” Because the teacher in question has self-identified as transgender, they are terrified to take appropriate action. If any of us went to work in costume or barefoot and generally unkempt, we would reasonably expect to be sent home, if not fired. If we argued that we did so as a presentation of a particular identity or even “gender identity,” it would be no different as that is not a defence, contrary to what Halton would have you believe.
The school board could have gone to Lemieux and advised her that if she wished to present as a woman she should go home and change into some reasonably sized breasts and a nice skirt and blouse or some other attire that was not sexualized, let alone garish. Recognizing gender identity does not permit vulgarity or sexualization and no lawyer who knew what they were doing could ever have informed Halton otherwise.
Instead, Halton is accommodating Lemieux. Or perhaps Lemieux is simply having some fun at the fatuity of Halton, enjoying seeing how far it can be pushed.
But what’s next? Teachers wearing cod pieces? Leather gear? Anything goes in Halton! Why not, if this does?
Halton’s other “legal” argument is that it cannot change the terms of employment before the next collective agreement. That is equally nonsensical legally. Yes, it cannot change wages or benefits or other significant negotiated terms of employment. But Lemieux’s idiosyncratic and vulgar method of dress is itself new. More to the point, the management rights clause in every collective agreement permits the employer to require its employees to dress reasonably. And even more so, to require that a teacher of young people be a role model for civility and professionalism, not obscenity and vulgarity.
Let’s be clear: The Halton District School Board has the legal ability to insist that their teachers wear appropriate attire to school. They should do that in the present case. Not to do so actually creates a precedent and legally opens the door for further abuses.
The Halton District School Board is failing its students and its teachers in not dealing with such outrageous conduct. It should do what is required in the interests of its students.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Peter Carey is a partner at Levitt Sheikh.
