Change of name and sex designation for minors in Quebec
The new Act to strengthen the fight against transphobia and improve the situation of transgender minors in particular, CQLR 2016, c. 19, extends to minors the regimes of change of name, provided under article 59 CCQ, and of change of designation of sex, provided by article 71 CCQ.
Change of name
Minors domiciled in Québec for at least one year (or under one year old, but born and domiciled in Québec) may apply for a change of name (art 59, 60). The tutor must apply for the minor, or the minor can do so on their own if they are 14 years or older (arts 60, 66). If the minor is 14 or older, the tutor remains authorized to apply for the minor (article 60).
The request must include supporting motives, and the names of the minor’s parents (art 61). The motives must be affirmed under oath and all useful documents must be joined to the application (art 61). The notion of “relevant documents” does not appear to be defined, but we may suppose that a letter from a doctor or mental health professional, even if it is not explicitly required, may be useful (Reg. 23.2 establishes such a requirement in the context of change of sex designation).
If a tutor — and the minor, if 14 years and older — has not been notified or is opposed to the change, independently of the age of the minor, the change will not be granted unless a compelling reason is provided (art 62).
If an opposition is voiced, a person wishing to file an application for change of name may ask the court to render decision on the change of name (art 66.1).
Change of designation of sex
With regards to changes of sex designation, the children domiciled in Québec for at least one year (or under one year old, but born and domiciled in Québec) may be the object of a n application for a change of designation of sex (article 71). The application may be accompanied by a change of first name (art 71). The conditions of the application, set out in the regulations, may vary by age (art 71). The tutor must file the application, or the minor can make it if 14 years or older (art 71.1). If the minor is 14 or older, the tutor remains authorized to make the request, but it will have to be made with the consent of the minor (art 71.1), a prerequisite that is not explicit in the case of changes of name.
The application must include an attestation under oath of the veracity of the motives for the change, etc., by the person filing the application (Reg 23.1). While the application does not have to be accompanied by an affidavit by an adult known the applicant for at least one year — as is the case when the application concerns an adult — it must be accompanied by a letter from a doctor or mental health professional attesting to the appropriateness of the change (Reg 23.2).
If a tutor opposes the application concerning a child under 14, the request is not granted absent a compelling reason (art 71.1). This right to object does not apply to minors 14 or older (art 71.1).
If there is opposition, the court may be seized of the application by the tutor wishing to file it (art 73.1). The hearings will be help in camera (article 15 CCP).
We first notice that the terms “compelling reasons” are not defined in the law. We can ask ourselves what interpretation will be given to the terms by the Directeur de l’état civil. Given their policies to date, it is likely that a fairly conservative interpretation will be given to the terms. Exceptions aside, the opposition of one parent in cases where parents must be given notice will necessitate the intervention of the court.
If the courts do not prioritize files regarding changes of name and sex designation of minors, deadlines may be excessively long, which shifts the burden of parental objection onto the child, who will have to continue living with the difficulties created by a discordant legal identity.
Since only the person or tutor — depending on whether we read article 66.1 or 71.1 CCQ — wanting to apply for a change of name or of sex designation can bring the case before the court, the law gives no recourse to minors under 14 years old if both parents oppose the desire of their child.
The process thus leaves an important margin of power in the hands of parents, which can create delays and significant costs for the child or the other parent, or completely block their change of name or sex designation.
If article 71.1 CCQ does not seem to preserve the right of opposition guardian when the child is 14 or over, article 73 prescribes that the procedure for a change of sex designation is identical to that of a change of name, apart from the publicity requirement. Thus, according to some people, it would be possible to extend the right of objection to parents of minors of any age, even in the case of applications of change of designation of sex. I disagree with this interpretation: it is a recognised principle of statutory interpretation that the specific terms take precedence over general terms. Article 71.1 is clearly stipulates a deviation from the general principle of article 73. Furthermore, these prerequisites are not procedural but substantive, and therefore fall outside the scope of application of article 73.
As previously pointed out, there is an asymmetry between the change of sex designation and change of name processes, especially at the level of notice to and opposition from parents. The in camera hearing, guaranteed under article 15 CCP for hearings on change of sex designation, is not systematically required when applying for a name change. In addition, the letter from a psychologist, psychiatrist, sex therapist or social worker, which is required for changes to sex designation, is not explicitly required in the case of a similarly motivated name change. However, since the scheme necessitates supporting documentation for the application, it is possible that the Directeur de l’état civil will ask for the same letter. It is commendable that social workers were allowed to write the letter, as other types of professionals are often expensive and difficult to access for the trans community, which often suffers from economic precariousness.
If these differences are justified by the applicability of the regime name change to everyone, not just trans people, the additional difficulties imposed on trans minors desiring to only change their name could have been easily avoided, notably by bringing the regime of the name change in line with the change of sex designation regime in cases where the request is motivated by gender identity. There is precedent for modelling the change of name regime on that of change of sex designation, in the form of exemptions to the publicity requirements, which are frequently granted when the name change request is motivated by gender identity.
The decision-making norm for courts hearing a dispute on one or the other types of applications is not defined under the new law. Nor are the relevant factors found in it, although it is possible that the principle of the child’s best interest prevails, as is generally the case in family law. However, I wonder how much weight will be given to the opinions of parents opposing the request, and how the perspective of the judge will color their assessment of the child’s best interest. I have some reservations regarding this broad discretion given the lack of openness some people show.
Proof of residence is required for the person making the request, which can be difficult to fill for minors between 14 and 17 years who apply on their own, since few young people receive traditional mail addressed to them. Hopefully, the Directeur de l’état civil will demonstrate flexibility in such cases. The current application forms enjoin the person making the request to prove that their domicile is in Quebec, rather than the person concerned by the application. It will therefore be preferable, where possible, for one of the parents to complete the application, even if the child is between 14 and 17 and may complete the application on their own.
Overall, the required process seems quite heavy: reference letter, a right to parental opposition. It is hard to believe that someone ready to operate the complex system of sex mention change in Quebec is not sufficiently certain of their gender identity that a reference letter serves a necessary function. It is an additional obstacle that seems to serve the sole purpose of assuaging the fears of the Quebec population.
Given the possibility of appealing the decision of the Directeur de l’état civil, the additional burden created by the parental right of opposition could have been avoided by requiring that they be notified of the decision of the Directeur de l’état civil, in addition to the initial notice at the request. In such a case, parents opposed to the application can file for court review to have their perspective heard. This option has the notable advantage of leaving room for parents who believe they have legitimate reasons to oppose the change, while discouraging parents who oppose the demand without ground, or motivated by simple prejudice, since it asks them to make some effort and incur certain costs, namely to appeal the decision within 30 days of its being rendered.
Despite a few issues, the new law is an excellent and necessary development. A large number of trans people will have better lives because of it. I take my hat off for the provincial government , and particularly to Manon Massé for her pressure on the Liberal government to proceed rapidly with the bill. Trans children in Quebec can finally have their gender identity recognized by the state, which is an undeniable good.
I wish to thank Jean-Sébastien Sauvé and Samuel Singer for their perspectives on the topic, which have helped me in writing this commentary.