9. What’s My Legal Sex/Gender?

On Having Conflicting Identification

Canadians have five principal legal documents that carry a sex/gender designation: birth certificate, social insurance number (SIN), passport, health card, and driver’s licence (DL). The rules for having one’s sex/gender designation changed is different from document to document, though some share the same rules. And the rules for some of the documents vary province to province. That’s because things like health care and driver’s licenses are provincial matters, whereas passports and SIN are federal. 

metamorphosis_dice_3.pngFor example, in Ontario it’s relatively easy to have one’s sex/gender designation changed on one’s DL: a simple letter from the applicant, and an even simpler letter from his or her physician (stating that s/he has examined the patient and considers the sex/gender designation change appropriate). The applicant should say that s/he is “undergoing” sex reassignment surgery, or that s/he has undergone surgery. It’s not clear why, though — I’ll return to this below. I discussed this briefly in post # 4. Once again, here are the requirements posted by the Ontario Ministry of Transportation.

If you are undergoing or have completed sex reassignment surgery, and want to change the gender designation on your driver’s licence, the following documents are required:

1. A letter from the applicant specifying the change requested. This letter needs to include the applicant’s full name, current address, driver’s licence number and the name and address of the physician who has signed an opinion letter in support of the change.

2. A letter, on the letterhead of a physician licensed by the College of Physicians and Surgeons of Ontario, and signed by the physician, in which the physician states that:

  1. i. the physician has examined or treated the driver who is requesting the change in sex designation on the driver’s licence; and
  2. ii. it is the opinion of the physician that the change in the sex designation on the driver’s licence is appropriate.

The Ministry will review the application to ensure that the documents meet MTO’s requirements and are in order.

  • Full surgery is not required as a condition for sex designation changes.

So either one has undergone or is undergoing sex reassignment surgery. But what the hell can it mean to be “undergoing” surgery? It’s the present participle: one is actually, right now, having surgery. So do they expect that an applicant will write the letter while on the operating table (not anaesthetized)? Well, of course not. So at most what they can mean is that the applicant is in the process of obtaining the surgery. But what the hell does that mean?

As Aristotle said, we’re all constantly in change, and we’re always partially potential: anyone could potentially obtain SRS in the future, so is everyone, in a sense, “undergoing” SRS? Or does one have to actively take steps towards obtaining SRS? What are those? Or, what are the ones that the Ministry of Transportation deems necessary (and sufficient)? Frankly, I’m confident that they’ve never considered that question.

The truth is that there are no definitive steps towards SRS, since there are no universally required standards for obtaining SRS. Most surgeons require adherence to the WPATH Standards of Care (see post #2), but they’re just a (paternalistic, backwards) suggestion. So while most surgeons require some amount of time on hormones, and some amount of time living in one’s new gender role (often a year), it’s still possible (with some world travel) to find skilled surgeons willing to perform SRS.

But much more distressing is that the Ministry assumes that one’s gender is signified — reified, in fact — by one’s genital status: one is only a woman when one lacks a penis and testes (seriously, they don’t care about anything else), and one is a man only when one lacks ovaries (phalloplasty isn’t required). Both of the families (because they’re not a single surgery) of surgeries centrally involve the removal of tissue and perhaps reshaping. Thus, they’re negative definitions of sex/gender. The ministry doesn’t seem to care that there’s a hell of a lot more to gender than genitals.

And even worse, this ignores the scores of transpersons who choose not to undergo surgery. It’s unfair to require someone to undergo risky and costly surgery in order to obtain basic human rights like the right to proper identification. (It’s also really painful with a long, involved recovery.) The state can’t force someone to undergo a procedure in order to obtain basic human rights. This is what underpinned the recent Ontario Human Rights Commission decision that Ontario’s birth certificate requirements of “transsexual surgery” (whatever the fuck that means, as questioned by the commission) for changing one’s sex/gender designation is unjust.

So the Ministry has fucked up on at least three levels. First, it reifies sex/gender as genital status, and it enforces a binary sex system in negative terms: a woman is someone without a penis and testes; a man is someone without ovaries — at least in terms of SRS required to have one’s sex/gender designation changed. It also enforces the binary: there are only men and women. It ignores issues of intersex and non-binary gender options like genderqueer.

Second, it ignores the scores of “non-op” trans persons who elect not to undergo risky and costly surgery. Lots of trans persons don’t identify their gender with their genital status, so why should the Ministry? Moreover, the OHRC has already ruled that it’s unjust to do so, at least for birth certificates, but it’ll ramify for all other documents, and I hope that it’ll ramify to other provinces and federally. Many transpersons don’t choose to undergo SRS. In fact, although there’s no hard data to support this, evidence from online forums indicates that the majority of transpersons, at least in North America, don’t undergo any form of SRS. (More will undertake some form of HRT than SRS, though.)

Third, the language of “undergoing” is just stupid. They really mean “working towards,” but that’s going to be uselessly ambiguous no matter how it’s changed, since the requirements for obtaining SRS vary wildly from surgeon to surgeon (though most North American will adhere to the WPATH suggestions). They might mean “intends to undergo,” but that’s not much more helpful. There’s no way to commit to undergoing SRS, even if one had a surgery date, one could always back out. In the past, the requirements read something like, “And the applicant will have had surgery within one year of the change.” And this is unfair for all sorts of reasons. Surgery delays, or life complications are the trivial ones; that it’s manifestly unfair to require surgery is the more serious one.

But, you know what, the real point of this post is different! It’s to ask this question: what happens when one’s identification documents list different sex/gender designations: what’s her/his legal sex? For example, my Ontario DL lists “F” but my B.C. birth certificate lists “M” (since they require SRS, and I haven’t had that yet). I don’t know the answer to this. As of mid-June, my OHIP also lists “F.” Interesting story behind this one: my DL already listed “F” and I went in to change my name on my OHIP and DL the same day that I received my change-of-name form (coincidentally, the same day as my convocation: I did this immediately after!). Normally, one requires a birth certificate in order to change one’s OHIP information, but the clerk didn’t require one. She just went off of my DL, and informed me that she also changed my gender (I didn’t even have to ask her). I think that I got extremely lucky on this one.

Well, as far as I’m concerned, I get to put “F” on whatever I want. But this will likely cause problems: what happens when I apply for a credit card? They want your gender, and they check: but what do they check? You don’t have to provide your SIN (and I *highly recommend* that you never provide it to them: they can’t require it). SIN requires SRS, though there’s presently a court challenge under way from Christin Milloy.

This could create a serious problem for me in the near future. Another issue: let’s say I land a tenure-track job soon (I can dream, right?), I should put “F” as my gender, but there could be a problem if they reference my SIN. Although I’m not stealth about being trans, this would certainly immediately out me (I consider this more of an issue for others than for me).

I’ve been able to change my gender on most of my ID and all of my accounts like HR, banking, health insurance (no change in premiums), car insurance (increase in premiums), and elsewhere. There’s really been no resistance, which is a little surprising.

This also creates an issue for my CAMH application. One has to apply to their gender identity clinic, and one does so by having one’s physician fill out a five page form. One of the central pieces of information is, obviously, one’s sex (do they mean gender? shouldn’t CAMH know the difference?!). So what do I put? My OHIP number is supplied, as is my legal name, both of which have been changed. But if I list “F,” as I want to, will they think that I’m supposed to be a FtM transsexual? Frankly, they’re stupid for even having that on the form: of all the people, they should know better. But, of course, CAMH is known for being fairly backwards.

There’s more to say, but I have another post planned about the importance of gender-congruent ID. But maybe I’ll just leave with a parting thought: have you ever thought about all the ways that sex/gender designations permeate your life, and how difficult it might be for someone who has mismatching ID, or no gender-congruent ID at all?

Yours truly,