19. The Times They Are A-Changin’

I Hope, Anyway…

In April 2012, the Ontario Human Rights Commission handed down a landmark decision impacting the rights of trans* persons to have their gender markers changed on their Ontario birth certificates without undergoing invasive, dangerous, painful, and often expensive sex reassignment surgery. The commission argued that it's unjust to require a medical procedure in order to obtain a basic human right like identification documents.

metamorphosis_letterwriting.png This is a big deal. In Canada, and many other jurisdictions, birth certificates are known a "feeder document." This means that a birth certificate is used to generate many other important identification documents. In Canada, for example, a birth certificate is required for obtaining a Social Insurance Number (equivalent to the USA's Social Security Number), and a Passport (the USA is ahead of Canada here: in the USA, one can fairly easily change one's gender marker, at least in obtaining a temporary passport). Efforts are underway for a human rights complaint regarding the SIN requirements by Christin Milloy.

While the April decision gives the Ontario government 180 days to comply by removing the requirement for SRS (they may replace it with something else), and a further 30 days to make the change public, it's unlikely that they'll comply in that time frame. So while this is a big deal, it'll take some time to come into effect. At the time of this writing, no one has been able to obtain a gender congruent Ontario birth certificate without SRS "certification" (yeah, one needs a letter from the SRS surgeon). And while this is groundbreaking for Ontario-born trans* persons, it doesn't much help me: I was born in British Columbia.

Well, BC has been something of a leader in advancing trans* rights. The 1999 "bathroom" decision has been widely cited in subsequent cases across Canada, and worldwide. And I don't want them to fall behind, so I decided to write to the Minister responsible for the changes: the Minister of Health. Here's his contact information.

Honourable Michael de Jong
Minister of Health

Room 337, Parliament Buildings
Victoria, BC V8V 1X4

Phone: 250 953-3547
Fax: 250 356-9587
E-mail: hlth.minister@gov.bc.ca

Here's what I wrote:

Dear Minister:

I write to you as someone born in British Columbia who happens to be transgender. Since transitioning, I have been able to change the gender marker on most of my identification documents, including my Ontario Driver's Licence and Ontario Health Insurance Plan, as Ontario is now my province of residence. I have also had no trouble changing my gender marker on things like car and health insurance, as well as my medical and work records. However, I am unable to change three documents: my British Columbia Birth Certificate, my Social Insurance Number, and my Canadian Passport.

Of course, I realize that the latter two are federal documents. But the reason for being unable to change those documents is that I am unable to change my BC Birth Certificate: the Birth Certificate is a "feeder document," in that many other identification documents depend on it.

This is a form of discrimination, generally known as "adverse effect" discrimination. That's when a policy that seems fair on its face actually disproportionately discriminates against certain groups. The current requirement for having one's gender marker changed on the Birth Certificate is that one must undergo some form of sex reassignment surgery. The exact details of what is required is not well specified.

This is an unjust requirement. Having gender congruent identification documents is a Canadian human right, and has been recognized as such by Human Rights Tribunals (see below). What this requirement demands is a number of invasive, dangerous, painful, and often costly medical procedures, for sex reassignment surgery isn't a single procedure. Moreover, it ignores the reality that only a small minority of transgender persons seek any form of sex reassignment surgery. This requirement serves to reify (make real) gender status as genital status. This is wrong. A person's genital status is irrelevant to his or her (or hir) gender, even though for some trans persons, it's important.

What are some of the costs of this policy? Suppose that a trans person wishes to undertake some form of sex reassignment surgery. According to the Standards of Care endorsed by nearly every Canadian health professional, and nearly every sex reassignment surgeon in the world, a patient must spend a minimum of one year living in his or her new gender. But notice what happens if governments do not allow for gender congruent identification documents: when such trans persons apply for jobs, housing, credit products, or attempt to travel internationally, they are immediately outed as being transgender. And transgender persons experience extreme levels of discrimination, harassment, and violence. It's humiliating, and it's a source of harm and risk to trans persons.

There's no good reason to demand sex reassignment surgery in order to have one's gender marker changed on a British Columbia Birth Certificate, and there are many bad reasons for having that requirement.

I call on you to follow the recent Ontario Human Rights Commission's decision against Ontario's Ministry of Government and Community Services:

http://www.ohrc.on.ca/en/news_centre/important-victory-transgender-persons-ontario
http://canlii.ca/en/on/onhrt/doc/2012/2012hrto726/2012hrto726.html

British Columbia has been a leader in advancing the human rights of transgender persons. Please don't falter now.

I await your response,

Dr. [Philosochick's name], PhD

I wanted to do this to see what would happen. I may elevate the matter to a human rights complaint in British Columbia. This would be a massive hassle for me, particularly since I don't live in the province, and would likely need to travel for hearings or depositions. In order to file a complaint, the reason for the complaint has to have happened within the past 6 months, unless one applies for an exception. Knowing how to read legal decisions, I can strategize about what's required to win such a case. For example, what evidence do I need? What do I need to have attempted in order to make a legitimate human rights complaint? For example, I can't just file the complaint right now, without having trying to get the gender marker changed by the Ministry of Health. I'd have to try and fail, and preferably have them specify why I failed (i.e., that I need some form of "transsexual surgery," which was the language and requirement deemed unjust by the Ontario HRC).

First, one needs to file a complaint with the British Columbia Human Rights Commission. For this case, on the complaint form, one would select "Services" for Section C: Area of Discrimination, and "Sex (includes pregnancy and sexual harassment)" for Section D: Grounds for discrimination.

The B.C. Human Rights Coalition has some really good information on filing a complaint. One needs a lawyer for this, and I'd apply for pro bono representation by the BCHR Coalition. They only accept applications after one submits the complaint.

Hey, if anyone in B.C. is a lawyer who'd like to take on this case pro bono, please let me know!

Well, we'll see what comes of the initial email. I'm going to go from there. I'll post an update if, and when, I get a response. As of August 4th, I still haven't received a response.

Yours truly,
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