Transgender activists herald landmark case
Federal government reviews the use of sex information for all identity documents
In what transgender rights activists are calling a “landmark” development, the Canadian government has settled a human rights case that could pave the way for gender markers to be scrubbed from passports, birth certificates and other identity documents.
Ottawa is also undertaking a government-wide review to assess how it collects and uses sex and gender information — a move that advocates for transgender rights are hailing as a major victory in the fight to remove “male” and “female” markers from identity documents.
“To my knowledge, this would be like a world first, for a government to proceed to review all of its gendering practices,” said barbara findlay, a lawyer and member of the GenderFree ID Coalition, an advocacy group calling for gender-neutral identity documents. (findlay spells her name with lowercase letters.) “It’s a seismic shift in the way that we understand what gender means and how we should be using it.”
Wednesday’s announcement caps a five-year battle launched by findlay’s client, 32-year-old Torontonian Christin Milloy, who was repeatedly denied in her attempts to update the gender information associated with her social insurance number (SIN).
In January 2012, the transgender activist and web developer filed a human rights complaint against Employment and Social Development Canada (then known as Human Re- sources and Skills Development Canada), which oversees the SIN register.
Asettlement was reached last week. Although its terms are confidential, an exception was made for some details to be publicized.
“As a government, we feel that this settlement is a step in the right direction,” said Jean-Yves Duclos, Minister of Families, Children and Social Development, in a statement posted online. “My department is committed to reviewing its data collection to determine when it is justifiable to ask an individual for their gender as a condition of receiving a government service or for other legitimate purposes.”
In the settlement, ESDC acknowledged that personally identifiable sex and gender information can be collected from Canadians only if there are “legitimate purposes” for doing so. It remains unclear how “legitimate purposes” will be defined, but Milloy believes the acknowledgement is “revolutionary.”
“Now the onus is on government to prove why they need the data,” she said.
Since Milloy filed her complaint, the ESDC has stopped requesting supporting documentation from people looking to change the gender associated with their SIN.
The government department is also changing its procedures to let people opt out of responding to sex or gender questions. It will further provide at least three options — male, female and a third option — when the question is asked.
“We are encouraged by this change, and we hope that all governments in Canada are inspired to remove gender markers (“male or female”) on documents wherever possible, and make any remaining markers more gender inclusive,” Marie-Claude Landry, chief commissioner of the Canadian Human Rights Commission, said in a written statement.
“What it comes down to is the ability for people to choose how they define themselves and under what circumstances. There is nothing more unique or personal than our identity and gender.”
Gender markers can be fraught for people who are transgender, gender fluid or have a non-binary gender identity. The wrong gender on a driver’s licence can “out” someone as transgender — making them vulnerable to discrimination or transphobic violence — and the letters “M” and “F” fail to accurately represent people who identify as both or neither.
Current processes to change gender information can also be onerous, expensive or invasive.
Although some have proposed adding an “X” option to identity docu- ments, the Gender-Free ID Coalition argues that “in our transphobic society, a third option puts a target on the forehead” of people who are gender diverse. Furthermore, they don’t see how a government can verify someone’s sex (not only are some people intersex, biological sex is now understood to comprise a variety of factors, like chromosomes, genitalia and secondary sex characteristics) or gender identity (which can be fluid and reflects how someone feels inside). They prefer a different solution: eliminating gender markers altogether.
“You wouldn’t be entitled to ask somebody’s race, sexual orientation or religion — and gender is exactly the same,” findlay said.
She said the routine practice of asking for gender information dates back to a time when “men and women had utterly different rights” — for example, when women were prohibited from owning property, voting, or marrying other women.
“But those legalized inequalities are gone,” she said. “There is no longer a reason to maintain that information.”
Transgender rights activists don’t oppose the collection of de-personalized gender information for census surveys and demographic research. Lawyer Nicole Nussbaum says the goal is to push for “deliberate and purposeful collection of information.”
The government-wide review is aimed at achieving just that, according to Edmonton Centre MP Randy Boissonnault, the special adviser to the prime minister on LGBTQ issues.
He said the review will try to understand how sex and gender data are collected and used, and where such data might be necessary for informing policy and funding decisions. He said Canadians with gender-diverse identities are also poorly represented in datasets, something he hopes to see fixed.