July 30, 2012

Alexandra Schmidt
Senior Policy Advisor, Policy & Regulatory Services Branch
ServiceOntario, Ministry of Government Services
E: Alexandra.Schmidt@ontario.ca

 

Dear Ms. Schmidt:

RE: Revised Criteria: Change of Sex Designation on an Ontario Birth Registration – Consultation Document

You have asked Egale Canada to provide input on how the Ministry of Government Services (the Ministry) might comply with a recent Human Rights Tribunal of Ontario (HRTO) ruling ordering the province of Ontario to revise the criteria by which a sex designation may be changed on an Ontario birth registration.

For the purposes of this opinion, Egale Canada, Canada’s only national lesbian, gay, bisexual and trans (LGBT) human rights organization, has reviewed the relevant standards and orders, reviewed and compiled domestic and international precedents, and consulted with our Trans Committee.

Guiding Principles

It is the opinion of Egale Canada that the Ministry should primarily consider two vital principles during the course of this consultation: 1) the realities of access to competent, effective and non-reparative health care for trans people in the province of Ontario; and 2) the right to autonomy and self-determination.

Casting aside the requirement for “transsexual surgery,” as the HRTO has ordered, leaves two possible medical requirements to consider: 1) hormone replacement therapy (HRT); and 2) mental health care, evaluation or diagnosis. It is Egale Canada’s concerted opinion that neither of these two options should be included within the required criteria for changing one’s sex designation on an Ontario birth registration. To the contrary, it is our submission that the revised criteria should be entirely excised from the purview of health care professionals.

Access to competent, effective and non-reparative health care in Ontario, and indeed in Canada, is both extremely limited and impeded by many social and economic barriers. This applies both to medical care and to psychiatric or other mental health care services. Outside of Toronto and a few other urban centres, there are very few trained health care professionals who are either capable or willing to provide care to trans people. In fact, a 2011 study from Stanford University reported that Canadian medical schools offer a median of 4 hours of combined pre-clinical and clinical instruction on LGBT-related topics, with sex reassignment surgery and other medical aspects of transitioning receiving the least amount of instruction.1 As a result, the majority of health care professionals are inadequately equipped to provide care to trans patients, whether that care involves emotional/psychiatric support, hormone replacement therapy or hormone blockers, or physical transition.

The lack of availability of competent health care services is compounded by social and economic barriers. High levels of discrimination against this demographic often inhibit access to employment, housing, education and other factors that impact earnings and, subsequently, access to various services. In Ontario, where the first and only available data in Canada have emerged following a study initiated in 2004, 50% of trans people reported personal annual earnings of $15,000 or less.2 As such, the costs associated with, for example, travelling from North Bay to Toronto in order to access competent mental health care are untenable and simply prohibitive.

To sustain the current practice of tying in any way the criteria for changing one’s sex designation to verification from health care professionals would in fact uphold a severe form of discrimination against trans people in Ontario. It would, in effect, maintain a barrier which many trans people cannot overcome given the current socio-economic circumstances in Ontario.

Rather than maintain the exclusive authority of the health care sector over the legal recognition of gender identity, it is Egale Canada’s ardent recommendation that the Ministry adopt an approach similar to that recently exemplified by Argentina—an approach that privileges the inalienable right of all people to autonomy and self-determination. On May 8, 2012, the Senate of Argentina approved the “Right to Gender Identity” law, an unprecedented global example of respect for the human rights and dignity of trans people.3 The law begins with the following assertion:

“All persons have the right,
a. To the recognition of their gender identity;
b. To the free development of their person according to their gender identity;
c. To be treated according to their gender identity and, particularly, to be identified in that way in the documents proving their identity in terms of the first name/s, image and sex recorded there.”

It is incumbent upon the province of Ontario to similarly recognize and uphold the inherent right of trans people to determine their own identity, as is the case regarding other areas where personal and civic life converge—such as marital status, choosing one’s own name, occupation or place of residence. Any criteria or processes for changing the sex designation on an Ontario birth registration should, above all else, give precedence to this principle.

Consultation Questions

The Ministry has asked four specific questions in reference to the revised criteria for changing the sex designation on an Ontario birth registration. Egale Canada’s responses to these questions are included below, with references to existing precedents both domestically and internationally

1. What should be the criteria required to change a person’s sex designation on a birth registration so that it accords with the person’s gender identity?

As noted above, the single guiding criterion for changing a person’s sex designation on a birth registration should be self-determination. Every individual in Ontario should have the right to determine their own gender identity and to have that identity recognized and respected by provincial institutions. In this regard, Egale Canada recommends that the Ministry adopt a model similar to that adopted in Argentina.

The Argentinian law enables trans people to change the sex designation assigned to them at birth upon the sole criterion that the individual does not identify their own gender with that designation.4 The law provides for a straightforward process by which an individual submits an application to the National Bureau of Vital Statistics requesting an amendment to their birth certificate along with a new first name, if desired. This process complies with the principle of self-determination as the individual is free to determine on their own which sex designation best accords with their gender identity. Furthermore, the law explicitly stipulates that in no case will surgery, hormone therapies or any other psychological or medical treatment be required to modify legal documentation,5 nor is there any requirement for corroboration by a third party.

A draft law currently under legislative review in the German Bundestag would introduce a similar process. Were the law to pass, a change of sex designation on a birth certificate would be made through the Civil Registry, and could be made without any supporting attestation by medical professionals or other third parties.6 New Zealand is also considering the adoption of this approach in its revised passport policy, anticipated in September 2012, which would allow an individual to simply provide a witnessed Statutory Declaration with their passport application, outlining their circumstances and advising the gender identity they wish to be displayed in their passport.7

The approach taken by Argentina and proposed for passports in New Zealand and birth certificates in Germany is unquestionably the most ideal and the most respectful of the rights and dignity of trans people. However, there are other viable, though less deferential, models for which precedent exists. As noted in the HRTO decision, the criterion for changing the sex designation on an Ontario driver’s licence consists solely of a letter from a health care professional attesting to the fact that the change would be in the best interests of the individual. No surgical or medical alteration is required, but some form of corroboration—based on the medical status of the individual—is obligatory. In practice, health care professionals will typically require some degree of physical transition—HRT or otherwise—or, at minimum, an official diagnosis of Gender Identity Disorder (GID) before they will write such a letter.

A comparable practice has been adopted for various purposes in other countries, including Germany, where a trans person may request that the sex marker in their passport be changed to reflect their gender identity without proof of surgery or other medical treatment; however, the person must demonstrate, with corroboration from a witness, that they have identified with this gender identity for over three years. This constraint counters the premise of self-determination by requiring supporting documentation from other persons, and may prolong anxiety and discrimination for trans people while the recognition of their gender identity is in a three-year state of limbo.8

Despite some inhibiting aspects, these examples demonstrate a clear trend in certain jurisdictions to implement processes for amending official documentation that honour a trans person’s right to selfidentification without intervention from the health care sector. These jurisdictions have recognized, as noted above, that to require trans people to access medical or mental health care services in order to access identification documents that accurately reflect their identity is to compound and sustain discrimination. The “real life test,” or extended period of time living in and expressing the roles associated with one’s gender identity, should not be included in the revised criteria. Requiring an individual to live out their gender identity without corresponding identification is oppressive. It is extremely difficult for trans people to access employment, housing, respectful education and many other necessary services and opportunities without identification that matches their gender expression. In fact, by “outing” people, this requirement exposes trans individuals to increased discrimination, harassment and alienation. Egale Canada does not endorse or accede to the requirement for corroboration or an extended period of “real life test” in order to change one’s sex designation on state-issued identification documents, especially where the authority for such corroboration is placed solely within the health care sector. However, there are less objectionable ways in which the issue of corroboration may be reconciled. They will be noted below in response to the appropriate consultation question.

2. Should the criteria required to change the sex designation of a child (under 18 years of age) so that it accords with the child’s gender identity be different than the criteria for an adult? If yes, how should the criteria be different?

Trans youth face an alarming degree of discrimination and harassment in today’s climate. Egale’s national study of homophobia, biphobia and transphobia in Canadian schools, Every Class in Every School,9 starkly demonstrates this disturbing reality:

78% of trans students feel unsafe at school, with 44% having missed school because of these feelings;
74% of trans students have been verbally harassed because of their gender expression;
9% of trans students have been sexually harassed in school within the past year; and
37% of trans students have been physically harassed or assaulted because of their gender expression.
Further, 52% of trans students identified both school washrooms and physical education change rooms as unsafe spaces: the two areas of a school that are most gender-segregated. One critical solution to this unacceptable reality in Canadian schools is to enable trans youth to safely socially transition and to provide them with access to safe spaces that accord with their gender identity and expression; however, one of the most significant barriers to this is the inaccessibility of accurate identification documents for trans youth. Without accurate legal recognition of a youth’s gender identity, many schools are extremely reticent to recognize the student’s chosen name or to accommodate their access to spaces that match their gender identity.

The relationship between the kind of victimization noted above and the risk for suicidal ideation and behaviour among trans youth must be noted. The impact of bullying disproportionately affects sexual and gender minority youth;10 that is, stigma and discrimination—as forms of victimization—are demonstrably correlated to suicidal ideation and behaviour among LGBTQ youth to a degree that is not true of their non-LGBTQ peers. In fact, a study released in 2010 revealed that, in the preceding year alone, 47% of trans youth in Ontario had thought about suicide and 19% had attempted suicide.11

For these reasons, it is critical to the safety and longevity of trans youth that the requirements for changing the sex designation on their birth registration not be made even more onerous or inhibitive than they are for any other person. In fact, given that a birth registration may be the only form of stateissued identification that a young person possesses, every effort should be made to ensure that a trans youth can access an amended birth registration with relative ease. The criteria for youth under 18 should not be different than those applied to adults.

In the event that the Ministry decides to implement a process of corroboration as part of the new criteria, certain additional considerations should be raised in relation to youth. The degree of discrimination, ignorance and hostility toward trans people in Canada has been demonstrated, both in the decision of the HRTO and within this submission: the unique impact this reality has on trans youth is evident in the above discussion. It must be noted that, all too often, this discrimination and hostility is manifest within the relationship between parent(s) or guardian(s) and child. One need only consider that 23% of the homeless youth in the city of Toronto are LGBT,12 a significant portion of whom identify as trans. As such, any criteria for changing legal sex designation that are applied to youth must allow a reasonable and accessible means of doing so without parental consent.

Though a paragon for its accommodation of trans adults, the Argentinian law has an added layer of paternalism for those under 18 which may, in principle, provide some direction in this regard. The law requires that procedures for changing the sex designation of a minor be directed through their legal representative(s) (e.g. a parent or guardian). Where a minor cannot obtain consent from their legal representative, the law provides a process for a judge to determine whether the change is in the best interests of the child.13 While it is encouraging that the law provides for a supplementary avenue in cases where a parent/guardian may be unsupportive, the fact remains that the final decision in such cases is entrusted to a legal professional and not to the individual. The practice of detaching a minor from making a final decision on their own gender identity may induce greater trauma for trans youth, certainly if they encounter an unsympathetic judge. Unfortunately, encountering an unsympathetic or unknowledgeable judge in Ontario is not yet entirely improbable. Further, implementing a process that requires access to the judicial system in this way would be cost-prohibitive to the vast majority of trans youth in Ontario. Nevertheless, where the criteria are different, the provision of an alternative means for those under the age of majority to obtain commensurate identification is essential.

3. Who should be qualified to corroborate a change of sex designation on a birth registration so that it accords with the person’s gender identity?

As stated, Egale Canada does not agree with the assertion that corroboration is necessary in this instance. Rather, corroboration seems an additional layer of discrimination given that the vital event data being amended here was imposed at birth without consent. However, if the Ministry determines that corroboration is indispensable, then it is imperative, for the reasons outlined above, that the concept of “qualification” in this context be removed from the health care sector and reframed from a more socially just perspective.

One manner of achieving the desired effect of corroboration could be to adopt an approach similar to that used when applying for a Canadian passport: requesting a reference/guarantor who has known the individual for an appropriate period of time. Certain conditions could be established regarding who might serve as a guarantor, such as a minimum age requirement, citizenship status, length of acquaintance with the applicant, or occupation—provided requirements pertaining to occupation are not restricted to the health care field. For example, for Two Spirited people, an elder or other religious or cultural leader may be appropriate; for others, a teacher, social worker or relative may be both apt and accessible. In terms of the length of acquaintance, consideration should be directed toward the reality that many trans people are cut-off from their family and friends upon openly identifying as trans—there is a high degree of hate- and fear-motivated prejudice within our society today that means many trans people endure a period of isolation during which it may not be possible to secure a guarantor who has known the individual for an extended period of time. As such, Egale Canada would recommend a period of no longer than six months.

If a guarantor of some kind is required, extreme care should be given by the Ministry to ensure that all trans people in Ontario can meet the requirements without undue or inhibitive hardship.

4. Should a person be permitted to change the sex designation on their birth registration so that it accords with the person’s gender identity more than once?

The right to autonomy and self-determination is not limited to a single instance. The ability to change the sex designation on one’s birth registration should extend throughout an individual’s lifetime, just as the right to change one’s name or marital status is not limited to a prescribed number of opportunities. If the underlying intention of this process is to enable trans people to obtain identification documents that accurately reflect their gender identity, then the Ministry must allow for the possibility that an individual’s gender identity might change over time. Anything less would not achieve the desired goal.

Additional Considerations

We note that section 36(5) of the current law requires old certificates to be returned to the Registrar General following a change in sex designation; however, it makes no reference to what the Registrar General shall do with the old certificates or registrations carrying the previous sex designation. In this regard, we would alert the Ministry to the fact that most countries that provide a mechanism for changing sex designation on official documents require that all documents carrying the previous sex designation be destroyed or sealed to anyone without authorization from the document holder or wellfounded judicial authorization. The Argentinian law and both the current and proposed laws in Germany again provide good examples of this practice, and we would strongly recommend that the Ministry consider a similar provision.

Concluding Remarks

The Province of Ontario has an opportunity to not only meet international standards—such as those set by Argentina—in honouring the human rights of trans people, but also to once again lead the world in putting equality into practice. The HRTO decision, combined with the recent addition of “gender identity” to the list of prohibited grounds of discrimination in Ontario’s Human Rights Code, provide both the impetus and duty to do so. By adopting the recommendations outlined in this submission, the Ministry and the province would be taking a remarkable step forward in truly creating a just society in which the human rights of all people are placed second to none.

We genuinely appreciate the opportunity to provide input on this vital initiative and would welcome the opportunity to further discuss the recommendations outlined in our submission. Ryan Dyck, Director of Policy and Public Education at Egale Canada, is available to address any questions you may have at 416-964-7887 ext. 26.

Download the full consultation document here [PDF]

Egale Canada is Canada’s LGBT human rights organization: advancing equality, diversity, education, and justice.
For more information:
Helen Kennedy
Egale Canada
416-270-1999/416-964-7887 ext. 21
185 Carlton Street Toronto, ON M5A 2K7
egale.ca