It’s Pride Again – How Fares the T in LGBTQ?

It is the time of the year when people get their rainbow flags out and celebrate sexual diversity. This weekend will be pride in Toronto with all the glitter and the shirtless men it entails. There is a lot of debate surrounding the political aspect of pride, or lack thereof, but that’s not what I want to talk about. I don’t mind pride as it is: a giant queer festival (I have issues with it on some level but I will not explore them here). I usually just let myself get carried by the atmosphere and let the politics behind for a time. Nevertheless, I thought it was a good time to see were we, Canada, were on trans issues (legally speaking). Two years ago, I lamented the foreseeable death of Bill C-279 in a post. The bill was revived at the beginning of the current session of Parliament, but sabotaged in committee with a slew of bathroom panic arguments. Now it will likely die (again), only to be brought back if the next government, after the fall election, actually values the lives of trans people. From that point, let’s see what has happened and will happen for trans rights in Canada.

A Sad End to Bill C-279

The initial Bill C-279’s purpose was to ensure human rights protection at the federal level for trans people by including gender identity as a ground for discrimination in the Canadian Human Rights Act and a ground for hate crime in the Criminal Code.[1] The alleged sober second thought Senate decided to amend the bill in committee to effectively delete any definition of gender identity (leaving such definition to the courts) and to add a “safeguard” provision excluding from the application of the act places that are restricted to one sex such as washroom, correctional facility, and shelter.[2] The latter is what we call “bathroom” panic: “oh no, men in dresses in women’ washroom, eek!” This argument is extremely problematic as it denies the fact that trans women are women. It denies the very personhood/acknowledgement the bill sought to give to trans women. It is a legislated act of discrimination. I would argue that those types of provision (a similar one exist in the Human Rights Code of Ontario)[3] don’t apply to trans women since a trans woman using the women washroom is using the appropriate washroom. Nevertheless, the intention of the conservative senators in adopting this amendment was clearly discriminatory (reading the committee’s transcript is far from pleasant).

I say trans women because it is only them who are affected; the argument is never used for trans men. It also does not recognise the fact that trans women have been using women washroom for a very long time and nothing happened. And sadly, if someone, trans or not, wants to harass someone in a washroom, it is not some legislative policy that is going to stop them. On the other hand, it is far more likely for a trans woman to get harass in any bathroom than anything else. The amendments are therefore unacceptable. Thankfully, in a strange way, the bill will die since the Senate conservative leadership refuses to put the bill to vote, and even then, if the  amendments are approved (chances are they would giving the composition of the Senate), the bill would go back to the House of Commons. Hopefully, the next Parliament will be more humane and favourable towards trans rights.

Some Progress in Provincial Law

Since last I posted about this topic, Ontario, Manitoba and the Northwest Territories were joined by Saskatchewan, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador as jurisdiction within Canada with specific human rights protection for gender identity/expression.[4] This leaves, in addition to the federal, British Columbia, Alberta, Québec, New Brunswick, Yukon, and Nunavut as jurisdiction not explicitly protecting gender identity/expression.[5] With a majority of provinces protecting explicitly gender identity, there is a good chance that before long the outliners will follow and recognize trans rights. The time is particularly right in Alberta with the new NDP government. While the inaction in British Columbia and Québec is especially puzzling.

As for changes of names or gender markers, Québec modified the Civil Code in 2013 to remove the need for sex-reassignment surgery to modify gender marker on official documents.[6] This spring the government mandated the Commission des institutions to look at a proposal for a regulation simplifying procedures for trans people to change their gender marker and name on official ID.[7] The Commission emphasised the need to recognise trans people’s autonomy. It thus recommended that the proposed regulation be changed so that a gender marker change could be made simply on the basis of the declaration of the trans person concerned affirming that they are living as their gender since at least 6 months, confirmed by one other adult, without the need to consult any medical professional.[8] Hopefully the final regulation will reflect the recommendations. If so, Québec will be the first jurisdiction in Canada that does not require a letter from a medical professional.[9] If you ask me, it is long overdue. With the de-medicalization of trans people (meaning not seeing trans people as having a disorder), it makes no sense to require the intervention of a physician or a psychologist to change one’s gender marker. Living as the gender is all the proof needed. I doubt people change their gender marker just for fun …

Finally, Ontario became the first province to ban LGBTQ conversion therapy.[10] Bill 77, a private member bill sponsored by Cheri DiNovo (NDP, Parkdale-High Park MPP), bars conversion therapy from coverage under OHIP (public health insurance) and prohibits conversion therapy for minors by making it an offence.[11] This is a step in the right direction and I hope that the other provinces and territories will follow. The negative impacts of the so called conversion therapy (a therapy that supposedly would turn gay people straight or trans people cis) are well known (depression, suicide, etc). The bill protects minors whose parents might wrongly decide that the therapy is an option. As for adults, it leaves them the choice to make a mistake and to pay for it out of their pockets. At least the public won’t pay for those mistakes. I would have preferred, however, that such therapy be simply prohibited period. People offering it are charlatan and should bear the consequences of their actions. Criminal law is often ill suited, but regulatory sanctions would seem appropriate. At least, Bill 77 is a good start.

What Lays Ahead – Litigation and Trans Rights

Two cases that began recently are worth following. One is in Ontario. The plaintiff, a trans man, is suing the government of Ontario for requiring a referral from the Adult Gender Identity Clinic at the Centre for Addiction and Mental Health (CAMH) in order for trans people who need surgery to get their surgery covered by OHIP.[12] This requirement has created incredible delays as the clinic is way over capacity. The waiting time can reach two years for an appointment. The plaintiff is thus asking the Ontario Superior Court to strike down that requirement as it violates his right to life, liberty and security of the person, and his right to equality under the Charter.[13] The only case, to my knowledge, involving the Charter and trans people is an Albertan case striking down the regulation for changing gender marker on birth certificate. The requirement for sex-reassignment surgery to change gender marker was judged discriminatory.[14] The case used the ground of sex and did not explore the possibility of recognising gender identity/expression as an analogous ground under s 15 of the Charter. It will be an interesting case that may open other Charter challenges for trans people regarding the funding of their transition (hormones, various surgeries, etc), and may recognize gender identity/expression explicitly as a ground for discrimination under the Charter. Hopefully it will not be abandoned after the Minister of Health’s announcement to expand the number of places where trans people can obtain approvals for publicly insured sex-reassignment surgeries, and end CAMH’s monopoly.[15]

The other case is in British Columbia. It is a human rights case brought before the BC Human Rights Tribunal. The Complainants, the Trans Alliance Society and a handful of trans and intersex people, assert that the requirement of having a gender marker on birth certificates is discriminatory.[16] They state that assigning such information at birth creates serious problems for trans people. Since the gender identity of a baby can’t be determined, assigning a gender at birth means that a person might be socialized in the wrong gender as it is often the case today. It will then create problems for a trans person when gender markers need to be changed when the true gender identity of that person is revealed. The consequences for intersex people are even more serious as it often involves arbitrary determination of gender, invasive unwanted and unnecessary surgery, and serious mental health issues. I see little value in assigning gender at birth, and in fact I don’t see much point in having gender on our official IDs. It is quite clear that assigning gender at birth has a disproportionate negative impact on trans and intersex people. What I do not know is if the Tribunal will be ready to strike down the policy. I hope that this case will at least result in opening the possibility of a third gender marker for intersex people at birth and for people who, once old enough to know their gender, don’t fit neatly in the female or male category.

So as pride arrives, I ask you all to reflect on what still needs to be accomplished to achieve true equality for LGBTQ people, especially for the long-time neglected trans people. There is still a lot of work to be done and the more we are advocating for change, the more likely that change is to occur.

[1] Canadian Human Rights Act, RSC 1985, c H-6; and Criminal Code, RSC 1985, c C-46.

[2] Senate, Standing Senate Committee on Legal and Constitutional Affairs, Twenty-fourth report, 2nd Sess, 41st Parl, 26 February 2015. The original version of the bill: Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), 2nd Sess, 41st Parl, 2013 (as passed by the House of Commons 16 October 2013).

[3] s 20(1) of the Human Rights Code, RSO 1990, c H.19 [HRCO].

[4] ss 1, 2, 3, 5, 6 & 7 of the HRCO, ibid; s 9(2) of The Human Rights Code, CCSM c H175; Preamble & s 5(1) of the Human Rights Act, SNWT 2002, c 18; ss 2(1)(m.01)(xv), 9, 25 & 47(1) of The Saskatchewan Human Rights Code, SS 1979, c S-24.1; s 5(1)(na)&(nb) of the Human Rights Act, RSNS 1989, c 214; Preamble & s 1(1)(d), 6(4)(c), 13 & 18 of the Human Rights Act, RSPEI 1988, c H-12; and Preamble & s 9(1) of the Human Rights Act, 2010, SNL 2010, c H-13.1.

[5] However, trans people are implicitly protected by the ground of sex in human rights law and the Charter: CF v Alberta (Vital Statistics), 2014 ABQB 237; Kavanagh v Canada (Attorney General)2001 CanLII 8496 (CHRT); Montreuil v National Bank of Canada2004 CHRT 7; Ferris v Office and Technical Employees Union, Local 15, BCHRT, 15 October 1999; Dawson v Vancouver Police Board (No. 2), 2015 BCHRT 54; and Commission des droits de la personne et des droits de la jeunesse c Maison des jeunes, 1998 CanLII 28 (QC TDP).

[6] René Saint-Louis, Vers un consensus à Québec pour simplifier la vie des transsexuels et transgenres, Ici Radio-Canada, 16 May 2015.

[7] Commission des institutions, Consultations particulières et auditions publiques sur le projet de règlement relatif au Règlement sur le changement de nom et d’autres qualités de l’état civil pour les personnes transsexuelles ou transgenres, Assemblée Nationale, 41st Leg, 1st sess.

[8] Commission des institutions, Rapport, Consultations particulières et auditions publiques sur le projet de règlement relatif au Règlement sur le changement de nom et d’autres qualités de l’état civil pour les personnes transsexuelles ou transgenres, n° 1161-20150521, Assemblée Nationale, 41st Leg, 1st sess, at Annexe V.

[9] See Direction des affaires juridique, Tableau de droit comparé – critères prévues au projet de règlement modifiant le règlement relatif au changement de nom et d’autre qualités de l’état civil, Ministère de la Justice du Québec, 23 March 2015.

[10] Rob Ferguson, Ontario becomes first province to ban ‘conversion therapy’ for LGBTQ children, Toronto Star, 4 June 2015.

[11] Bill 77, Affirming Sexual Orientation and Gender Identity Act, 2015, SO 2015 C.18.

[12] Kelly Grant, Charter challenge launched over sex-reassignment surgery, Globe and Mail, 8 May 2015.

[13] Ss 7 & 15 of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[14] CF v Alberta (Vital Statistics), 2014 ABQB 237.

[15] Kelly Grant, Ontario to expand access to publicly insured sex reassignment surgery, Globe and Mail, 25 June 2015.

[16] Douglas Quan, B.C. Human Rights Tribunal to consider striking gender designation from birth certificates, National Post, 25 May 2015.

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