Better Not Want Health and Housing: How the Quebec Government Fails Trans Migrants

Non-citizens of Canada are allowed to change their gender marker on federal documentation if they can prove that they are unable to change it on their birth certificate. Unfortunately, it remains impossible to change their name on federal documentation without a prior change whether in the person’s country of origin or through a province. Having your name changed on federal documentation is crucial, because it enables you to prove your identity, and would most likely enable you to change your name on your health insurance card and driver’s licence, as the Quebec government delegates to the federal government the function of establishing the civil status of immigrants.

Outside of Quebec, it is relatively easy to change your legal name. Non-citizens in all other provinces and territories can change their name under condition of having been domiciled in the province for a certain period, ranging from no explicit length to one year depending on the jurisdiction. Although a number of provinces used to require citizenship, this requirement was removed a long time ago, as the jurists consulted were of the opinion that the requirement was unnecessary. As early as 1971, a report on the Change of Name Act by the Ontario Law Reform Commission took the position that there existed no good reason to require citizenship for name changes. The report recommended removing this requirement, and the Ontario government acted upon the recommendation.

Quebec is the only province in which legal name change remains impossible for non-citizens. Yet, obtaining citizenship can easily take more than 7 years if the demand isn’t rejected. A number of people are reluctant to ask for Canadian citizenship — I know my grandfather was and he indeed did not become a Canadian citizen until dual citizenship with his country of birth was allowed. If this is not an insurmountable situation for people who, like my grandfather, are cisgender, it creates multiple difficulties for transgender migrants. Trans migrants are disproportionately vulnerable to harassment, discrimination, and violence. Lack of gender-concordant identification creates barriers when seeking employment, seeking housing, interacting with governmental institutions, making use of the healthcare system, and accessing a number of services available to the public. Every time you have to show identification, you’re at risk. Many individuals opt to avoid those situations entirely, however damaging avoiding healthcare or employment may be. This state of affairs causes considerable psychological distress to trans migrants and is an obstacle to their health and full participation in public life.

Multiple rationales have been put forward to justify the current state of the law in Quebec.

Firstly, a number of people express fear that the change of name process would be used in a fraudulent manner or to avoid criminal prosecution.

Although this preoccupation may be legitimate, it is surprising that the government does not similarly seek to limit the accessibility of name changes for Canadian citizens who are also at risk of such avoidance behaviours. Indeed, non-citizens are no more likely to commit criminal acts than citizens, contrary to common but wholly unfounded assumptions. Non-citizen legal name changes have been allowed in many jurisdictions for a long time, and no substantial problem has been noted thus far: the solution is manifestly viable. As we law students say in an entirely different context: res ipsa loquitur.

Secondly, it is sometimes suggested that Quebec, because it is a civil law jurisdiction, should seek inspiration from civilian countries such as France, Belgium, and Switzerland, rather than common law jurisdictions.

As a civilian at heart, I readily acceded that there is value in maintaining the internal logic of the civil law. Nonetheless, empathy and reason should take precedence over tradition, and human rights should take precedence over the conceptual logic of civil law. The unwillingness of other civilian jurisdiction with regards to trans rights is no excuse to inaction at the Quebec government. Other civilian jurisdictions have a long history of human rights inaction, and Quebec has a long history of priding itself with being a leader in human rights. If there is a tradition that we should respect, it is this one.

Quebec is not an isolated jurisdiction. We exist within a federal system which, unfortunately, frequently presupposes that provinces operate in similar ways. The compatibility of Quebec laws with the federal regime is crucial, and much more pressing than any symbolic compatibility with civilian countries. By refusing to amend the Civil code, Quebec refuses to trans migrants the privileges and benefits that are extended to them in the rest of the country.

Furthermore, change of name laws aren’t an issue bearing on the common law-civil law divide. Traditionally, the common law has required citizenship as a requirement but has opted to remove this requirement by statute after experts chimed in on the matter. Furthermore, Quebec in in any case a mixed jurisdiction and has not shied away in the past from welcoming common law influences. The Quebec trust and much of Quebec’s evidence law are the mark of this strong influence. If we were ready to adopt the trust for economic reasons, then we should be just as ready to extend rights to trans migrants for human rights reasons.

A third argument claims that changes to civil status encroach on the sovereignty of other states, which retain the exclusive right to determine the civil status of their citizens.

To my knowledge, none of the other provinces has had to face such a critique despite longstanding practice. This problem is wholly academic, and is not reflected in the current concerns of other countries, who are not opposed to civil status changes of their citizens in other countries. Marriage is another example of change to civil status which is universally allowed to non-citizens without issue, though with limitations to who one can marry, unfortunately.

The Quebec government by this standard already encroaches on the sovereignty of other jurisdictions by allowing non-citizens to insert their birth certificate in the register of civil status, as well as by allowing non-citizens to receive an act of marriage or civil union in Quebec. In any case, such changes to civil status are not binding foreign government in international law. Each jurisdiction is free to recognise or not foreign civil acts: their sovereignty is unaffected.

Aside from what has been said so far, it is worthwhile to mention that the refusal to allow non-citizens to change their legal name and gender marker in Quebec rests on weak constitutional support. Indeed, citizenship has long been recognised as analogous grounds for the purposes of section 15 of the Canadian Charter of Rights and Freedoms which guarantees the right to equality and to protection against discrimination. The law’s objectives, however framed, do not seem rationally connected to the citizenship requirement, and in any case the law is neither minimally impairing nor proportional.

Access to gender-concordant identity documents is a right that is owed to everyone. It should not be arbitrarily denied on the basis of citizenship. The current state of affairs is nothing short of unacceptable and should be rectified immediately. The government has been well aware of the problem at least since Bill 35 was tabled in 2013. On that occasion, the Protectrice du citoyen Raymonde St-Germain noted that the impossibility of obtaining a coherent legal recognition from the State contributes to the perpetuation of marginalisation of trans migrants, especially with regards to employment.

The Quebec government must demonstrate empathy, understanding, and accountability towards its most marginalised inhabitants. It has a moral duty to be more than forthcoming in protecting those who most need it.

In light of those reasons, the government should immediately and without delay remove the words “who is a Canadian citizen and” and the words “and is a Canadian citizen” from articles 59 and 71 of the Civil Code of Quebec, respectively. Trans migrants have suffered enough.

This piece was originally published in the Quid Novi, vol. 38, no. 12, a student publication at the McGill Faculty of Law, on February 7th, 2017.