Transgender rights in Canada

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Transgender rights in Canada, including procedures for changing legal gender assignment and protections from discrimination, vary among provinces and territories. Initiatives towards gender inclusivity was a promise made by Prime Minister Justin Trudeau. As of August 31, 2017, Canadians can indicate that they do not identify as male or female on their passports. This is an ongoing effort by the federal government to eventually allow individuals to indicate their sex as 'x' on their passport and other government-issued identification.[1]

Birth certificates

Laws concerning gender identity-expression by country or territory
  Legal identity change
  No legal identity change
  Unknown/Ambiguous

In order to alter the sex recorded on an individual's birth certificate, they must go through the province or territory where they were born. The information below outlines each province and territories' requirements.

Alberta

Following a 2014 court ruling that struck down the existing legislation and its surgery requirements as unconstitutional,[2][3] the government of Alberta modified the Vital Statistics Information Regulation in 2015.[4] The current regulations eliminate the surgical requirement. Instead, the applicant must submit a "statement confirming that the person identifies with and is maintaining the gender identity that corresponds with the requested amendment to the sex on the record of birth," as well as a letter from a physician or psychologist attesting that the amendment is appropriate. Legal change of gender is accessible to minors; this requires the parents' or guardians' consent, although this can be waived by court order or if the minor is emancipated, married, or a parent.[5]

British Columbia

In British Columbia the requirement for surgery to change the birth certificate gender marker was removed in 2014. [6]

Non-binary transgender B.C. resident Kori Doty, along with seven other transgender and intersex people, has filed a human rights complaint against the province, alleging that publishing gender markers on birth certificates is discriminatory. The British Columbia Human Rights Tribunal agreed in 2015 to hear their complaint.[7] In April 2017, Doty's child, Searyl Atli Dotl, became the first in the world known to be issued a health card with a gender-neutral "U" sex marker, but the province has refused to issue a birth certificate without specifying a gender. Doty has filed a legal challenge.[7][8]

Manitoba

Under Manitoba law, the Vital Statistics Act of Manitoba (C.C.S.M. c. V60) no longer requires gender reassignment surgery for a person to change their "sex designation" on their birth certificate.[9] Names may also be changed using the normal procedure.

To change one's sex designation from Male to Female or Female to Male, one must fill out a form including a statutory declaration swearing that "[You are] currently living full-time in a manner consistent with the requested sex designation and intend to continue doing so."[10] A letter from a medical professional confirming your gender identity is also required.[11]

New Brunswick

In April 2017, a bill passed the Legislative Assembly of New Brunswick to add gender identity or expression to the human rights laws and to allow gender changes without the required surgery.[12]

Newfoundland and Labrador

Persons born in Newfoundland and Labrador have been able to have the gender designation on their government issued ID changed since the adoption of a new Vital Statistics Act[13] in 2009. Initially, that right was available only to those who had undergone transsexual surgery, but that requirement was removed following the December 2015 decision of a Newfoundland and Labrador Human Rights Board of Inquiry[14] [15]  on complaints filed with the Human Rights Commission from two transgender women.  The amendment[16] received Royal Assent April 13, 2016.[17]

The first gender-neutral birth certificate in Newfoundland and Labrador, and possibly the first in Canada, was issued December 14, 2017 to Gemma Hickey, a non-binary resident of St. John’s, the province’s capital.[18]  Hickey, an award-winning activist,[19] had launched court action seeking to compel the Government of Newfoundland and Labrador to issue the gender-neutral certificate after their application for such a document was rejected because the application form was limited to male or female designation only.  Hickey withdrew the court action after the government agreed to amend the Vital Statistics Act to authorize the issuing of gender-neutral birth certificates.  That amendment received Royal Assent on December 7, 2017.[20]

The application form for change of gender designation is available on the Website of Service NL, Government of Newfoundland and Labrador.[21]

Northwest Territories

The Northwest Territories government removed the surgery requirement for a legal gender change from the Vital Statistics Act in June 2016.[22]

Nova Scotia

On May 11, 2015, Bill 82, An Act to Amend Chapter 66 of the Revised Statutes, 1989, the Change of Name Act, and Chapter 494 of the Revised Statutes, 1989, the Vital Statistics Act received Royal Assent. This act abolishes the surgical requirement, instead requiring a statement "that the applicant has assumed, identifies with and intends to maintain the gender identity that corresponds with the change requested," and an attestation from a professional that the applicant's gender identity does not correspond to that listed on the birth certificate. (The professions empowered to provide such an attestation are to be established by regulation.) Legal change of gender is available to those 16 years of age and older, and to those younger than 16 with parental permission (unless waived by a court order).[23][24]

The act came into force the week of September 24, 2015. [25][26][27]

Existing requirements

As per Bill 82, An Act to Amend Chapter 66 of the Revised Statutes, 1989, the Change of Name Act, and Chapter 494 of the Revised Statutes, 1989, the Vital Statistics Act which came into force the week of September 24, 2015:[28]

Clauses 1 and 2 lower the age at which parental consent is no longer required for a change of name from 19 years to 16 years.

Clause 3

(a) eliminates the requirement for sex-reassignment surgery to change the sex shown on a person’s birth registration, and replaces it with a requirement that a person provide written statements from the person and from a member of a profession prescribed by the regulations;

(b) requires that a person under the age of 16 years have parental consent for a change in the sex shown on the person’s birth registration and that the written statement from a member of a profession prescribed by the regulations be from a professional who has treated or evaluated the person;

(c) provides for the updating, following a change to the sex shown on a person’s birth registration, of marriage and domestic partnership registrations of the person and birth registrations of any child of the person;

(d) sets out provisions respecting the issuance of birth, marriage and domestic-partnership certificates following the change of the sex shown on an applicant’s birth registration; and

(e) provides a means for the Supreme Court of Nova Scotia to dispense with the consent of a parent when an application is made by a person under the age of 16 years if it is in the interest of the applicant to do so.

Nunavut

Nunavut removed surgery requirement for a legal gender change from the Vital Statistics Act in March 2015.[29]

Ontario

On 11 April 2012, the Human Rights Tribunal of Ontario ruled that sexual reassignment surgery is no longer required for a change in sex designation in government documents. In its decision, the Tribunal ordered that the Ontario government "shall cease requiring [Ontario born only] transgender persons to have 'transsexual surgery' in order to obtain a change in sex designation on their registration of birth" and has 180 days to "revise the criteria for changing sex designation on a birth registration".[30][31] This makes Ontario the first jurisdiction in Canada to allow Ontario born transgender people to change the gender on their Ontario only birth certificates without sex reassignment surgery.[32]

Pursuant to the Tribunal ruling, an applicant now only requires an Application for Change of Sex Designation on a Birth Registration form, a statutory declaration to the effect, and a letter signed by a medical doctor or psychologist that is licensed to practice in Canada stating that the applicant's gender identity does not conform to their sex designation at birth.[33]

Prince Edward Island

In April 2016, the Prince Edward Island government amended the Vital Statistics Act to allow individuals to change their legal gender on ID without surgery. Individuals must present a letter from a doctor attesting to the applicant's gender identity.[34]

Quebec

Since October 2015, adults have been able to change their legal gender on birth certificates in Quebec.[35] The process was simplified for minors in June 2016.[36]

To qualify to change the sex designation appearing on the act of birth, the person concerned by the application must hold Canadian citizenship and be domiciled in Québec for at least one year. If the person concerned by the application was born in Québec but lives elsewhere, the person may also qualify to change the sex designation if the person shows that such an amendment is not possible in the province or country in which the person is domiciled.[37]

Saskatchewan

In February 2016, the provincial government changed the Saskatchewan Vital Statistics Act to eliminate sex-reassignment surgery (SRS) as a prerequisite for changing government documents.[38] In May 2018, a judge ruled that the gender marker can be removed from a birth certificate.[39]

Yukon

On April 25, 2017 a bill called Act to Amend the Human Rights Act and the Vital Statistics Act (2017) was introduced to the Second Session of the 34th Legislative Assembly as Bill 5. Its intended purpose was to add "gender identity or expression" to the Human Rights Act, and to allow the recognition of gender without surgery being required under the Vital Statistics Ac.[40] And on July 1, 2017 it went into effect.[41][42]

Discrimination protections

"March of Hearts" rally for same-sex marriage in Canada on Parliament Hill in Ottawa, March 6, 2004.

Enforcement mechanism

The federal government and every province and territory in Canada has enacted human rights acts that prohibit discrimination and harassment on several grounds (e.g. race, gender identity or expression, age, marital status, sexual orientation, disability, sex, religion) in private and public sector employment, housing, public services and publicity. Some acts also apply to additional activities. These acts are quasi-constitutional laws that override ordinary laws as well as regulations, contracts and collective agreements.[43] They are typically enforced by human rights commissions and tribunals through a complaint investigation, conciliation and arbitration process that is slow, but free, and includes protection against retaliation. A lawyer is not required.

Grounds for prohibiting discrimination

In 1977, the Quebec Charter of Rights and Freedoms, which is both a charter of rights and a human rights act, was amended to prohibit discrimination based on sexual orientation. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination in the private and public sectors. Today, sexual orientation is explicitly mentioned as a ground of prohibited discrimination in the human rights acts of all jurisdictions in Canada. In 2016, gender identity or expression was added to the Quebec Charter.[44]

Sexual orientation is not defined in any human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transsexuality or transgender people.[45] The Federal Court of Canada has stated that sexual orientation "is a precise legal concept that deals specifically with an individual's preference in terms of gender" in sexual relationships, and is not vague or overly broad.[46] The Ontario Human Rights Commission has adopted the following definition:

Sexual orientation is more than simply a 'status' that an individual possesses; it is an immutable personal characteristic that forms part of an individual's core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations.[47]

All human rights laws in Canada also explicitly prohibit discrimination based on disability, which has been interpreted to include AIDS, ARC and being HIV positive, and membership in a high-risk group for HIV infection.[48]

Since June 2017, all places within Canada explicitly within Canadian Human Rights Act, equal opportunity and/or anti-discrimination legislation prohibit discrimination against gender identity or gender identity or expression.[41]

In addition, human rights commissions consider that sex discrimination includes discrimination based on gender identity at the federal level and in New Brunswick.[49][50][51]

The Ontario Human Rights Commission defines gender identity as follows:

Gender identity is linked to an individual's intrinsic sense of self and, particularly the sense of being male or female. Gender identity may or may not conform to a person's birth assigned sex. The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender. … Individuals whose birth-assigned sex does not conform to their gender identity include transsexuals, transgenderists, intersexed persons and cross-dressers. A person's gender identity is fundamentally different from and not determinative of their sexual orientation.[51]

In 2005, NDP MP Bill Siksay introduced a bill in the House of Commons to explicitly add gender identity and expression as prohibited grounds of discrimination in the Canadian Human Rights Act. He reintroduced the bill in 2006. In May 2009, he introduced it again, with additional provisions to add gender identity and expression to the hate crimes provisions of the Criminal Code.[52] In February 2011, it passed third reading in the House of Commons with support from all parties, but was not considered in the Senate before Parliament was dissolved for the 41st Canadian federal election. Two bills—C-276 and C-279—on the subject have been introduced in the 41st Canadian Parliament, by the Liberals and the NDP respectively. The NDP's Bill C-279 passed second reading on June 6, 2012.[53] However, the bill again died on the Senate order paper when the 2015 federal election was called. In May 2016, An Act to amend the Canadian Human Rights Act and the Criminal Code (C-16) was introduced to the House of Commons of Canada, to add and include "gender identity or expression" in the Canadian Human Rights Act.[54] In June 2017, the Canadian Parliament passed the bill C-16 and received royal assent a week later. The law went into effect immediately.

LGBT Discrimination Table

Territory/Province of Canada Sexual orientation Gender identity Gender expression
Canada (federal) Yes (Since 1996)[55] Yes (Since 2017)[56] Yes (Since 2017)[56]
Northwest Territories Yes (Since 2002) Yes (Since 2002) No
Nunavut Yes (Since 1999) Yes (Since 2017)[57] Yes (Since 2017)
Yukon Yes (Since 1987) Yes (Since 2017)[41][42] Yes (Since 2017)[42]
British Columbia Yes (Since 1992) Yes (Since 2016)[58][59] Yes (Since 2016)
Newfoundland and Labrador Yes (Since 1995) Yes (Since 2013)[58] Yes (Since 2013)
Alberta Yes (Since 2009)[60] Yes (Since 2015)[58] Yes (Since 2015)
Quebec Yes (Since 1977) Yes (Since 2016)[61] Yes (Since 2016)
Prince Edward Island Yes (Since 1998) Yes (Since 2013)[62] Yes (Since 2013)
Manitoba Yes (Since 1987) Yes (Since 2012)[63] Yes/No (not explicitly included but implicitly included since at least 2016)[64]
New Brunswick Yes (Since 1992)[58] Yes (Since 2017)[12] Yes (Since 2017)[12]
Nova Scotia Yes (Since 1991) Yes (Since 2012)[65] Yes (Since 2012)
Saskatchewan Yes (Since 1993) Yes (Since 2014)[66] No
Ontario Yes (Since 1986)[55] Yes (Since 2012)[67][68] Yes (Since 2012)

Activities where equality guaranteed

Accordingly, discrimination, including harassment, based on real or perceived sexual orientation or HIV/AIDS (and probably transsexuality and possibly transgenderism) is prohibited throughout Canada in private and public sector employment, housing, services provided to the public and publicity. All aspects of employment are covered, including benefits for spouses and long-term partners. Examples of services include credit, insurance, government programs, hotels and schools open to the public. Schools open to the public are liable for anti-gay name-calling and bullying by students or staff.[69] LGBT Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.[70]

Prohibited discrimination occurs not only when someone is treated less favourably or is harassed based on a prohibited ground, but also when a uniform policy or practice has a perhaps unintended disproportionately adverse effect based on the ground. This is called "adverse effect discrimination."[citation needed] For example, it might in theory be discriminatory for schools open to the public to require parental consent for student participation in all school clubs, assuming that students are less likely to ask for or get permission to participate in gay–straight alliance clubs.

Blood donation

On August 15, 2016 Canadian Blood Services' new eligibility criteria for transgender people came into effect. This criteria states that transgender donors who have not had lower gender affirming surgery will be asked questions based on their sex assigned at birth. They will be eligible to donate or be deferred based on these criteria. For example, trans women will be asked if they have had had sex with a man in the last 12 months. If the response is yes, they will be deferred for one year after their last sexual contact with a man. And donors who have had lower gender affirming surgery will be deferred from donating blood for one year after their surgery. After that year, these donors will be screened in their affirmed gender.[71][72]

See also

References

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  44. ^ [1]
  45. ^ Quebec (Commission des droits de la personne et des droits de la jeunesse) c. Maison des jeunes 1998 IIJCan 28, [1998] R.J.Q. 2549; (1998), 33 C.H.R.R. 263 (T.D.P.Q.); REJB 1998-07058 Accessed on March 3, 2006.
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  54. ^ BILL C-16 An Act to amend the Canadian Human Rights Act and the Criminal Code
  55. ^ a b Part I – The context: sexual orientation, human rights protections, case law and legislation
  56. ^ a b An Act to amend the Canadian Human Rights Act and the Criminal Code
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  58. ^ a b c d Rights of LGBTI persons
  59. ^ Transgender changes to B.C. Human Rights Code pass unanimously
  60. ^ HUMAN RIGHTS, CITIZENSHIP AND MULTICULTURALISM AMENDMENT ACT, 2009
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  65. ^ An Act to Amend Chapter 214 of the Revised Statutes, 1989, the Human Rights Act, to Protect the Rights of Transgendered Persons
  66. ^ Saskatchewan amends human rights code
  67. ^ Gender identity and gender expression
  68. ^ Bill 33, Toby's Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012
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