The evolution of rights for trans people in Quebec
The past few years have been busy for trans activists from Quebec and Canada. Between changes in prison policies, a new blood donation policy, five bills: 35, 103, 895 and C-16, and the announcement of upcoming non-binary passports, the advances of the last five years are impressive. We’ve been busy! Today, we will be reviewing these changes and provide a critical perspective on trans political realities in Quebec and Canada.
Though the choice is arbitrary, I think it is useful to divide our exploration into three parts: identity administration, legal equality, and access to health care. What will emerge from each part is that, notwithstanding the substantial legal progress for trans people that recent years have brought, legal changes have been largely formal. Because it assumes that the law is enforced but for a few exceptions, the state privileges the juridical to the substantive, and proposes laws which promise greater improvements than can be observed in practice.
On the level of identity administration, the right to change name and gender marker exists in Quebec. In Quebec, the right applies without medical requirement since October 2015. It has now been almost two years since most trans Quebeckers stopped being forced into infertility to access gender-concordant identification. Most. Bill 35, which amended the process for changing birth certificates, had a rocky start. Initially, it would have required a two-year “real life experience” qualification. Through activism, this prerequisite was removed and the process of name and gender marker change in Quebec is now the easiest in Canada. Proof of domicile and an affidavit by a friend and yourself are sufficient. In June 2016, this regime was extended to minors.
Despite what emerged from the consultations on Bill 35, the government did not extend the name and gender marker change regimes to non-citizens. Recently, the Parti Québécois proposed a bill, number 895, which would address this problem. If the bill passes, and it is far from a slam-dunk, Quebec will still be the last province to allow trans migrants to change their name on provincial identification documents.
For non-binary people, access to gender-concordant documents is still a far-away dream. The federal government announced recently that it would add a third gender option on passports, and would undertake an inquiry into the need for gender categorisation on various federal documents. However, these changes promise to have little impact on the daily lives of non-binary people, since the documents that are most used such as health insurance cards, driver’s licences, and birth certificates are all issued by the provincial government.
What we see here is the setup of a hierarchy of importance, with binary trans people with citizenship being the most readily recognised by the state, while trans migrants and non-binary people are relegated to the second or third place. At the level of migrants, the justification is racist and draws on the stereotype of people of colour criminality. This hierarchy is drawn despite the priorities of trans people themselves: though trans communities are far from blameless, especially with regards to racism, citizenship requirements and third gender options are issues that have been raised many times in the past by trans activists.
For the second part, legal equality has mainly been articulated through anti-discrimination and hate crime laws. These changes, though they have been at the centre of federal and provincial politics, are largely symbolic. In 1998, the Quebec Human Rights Tribunal interpreted the word “sex” in the Quebec Charter within a psychosocial perspective, thereby extending legal protections from discrimination to trans people. Courts in other provinces and at the federal level quickly followed suit: there is a wide range of judgments recognising the illegality of discrimination against trans people beginning around the turn of the millennium. Complementing anti-discrimination laws, gender identity and expression were added to the Criminal Code’s hate crime provisions. This ultimately adds only one criterion among many which will have to be considered during sentencing. Such provisions do not appear to have any tangible impact on the safety of trans people, but will likely be disproportionately applied to people of colour.
Returning to the question of discrimination, adding gender identity and expression to human rights instruments has a relatively modest range of impact. Above all, the law is made more accessible, because judgments are not easily accessible. Here again we have a chance that, though laudable, has not been at the core of political demands of trans groups. There were people who asked for it, of course… but it was cisgender people from the government who decided that it was to become the number one priority. And while the Canadian government was expending great amounts of political resources in passing Bill C-16, now a law, it turned around and cut funding for a number of essential trans community organisations like Action Santé Travesti(e)s et Transsexuel(le)s du Québec. In the provincial government, also led by a Liberal Party, trans people who rely on social welfare took the hit. Though they now have the right to sue people who discriminate against them in employment, discrimination is as common as it is difficult to prove. Yet, if trans people refuse to seek employment, knowing full well that we’ll experience harassment and discrimination yet again, they have their welfare payment cut in half. This new rule, added by our current government, has a much greater negative impact than the symbolic addition of gender identity to human rights laws had in positive impact. Despite this failure to promote the wellbeing of trans people, the government hastens to portray itself as pro-trans. Even today, Minister of Justice Stéphanie Vallée is presenting at this Pride conference despite her inaction in the face of the difficulties experienced by trans migrants. If you see her today, I hope you will encourage her to act!
Last but not least, let’s talk about healthcare. The most noticeable thing here is the absence of change. On the level of insurance, trans people are insured for the following services: hormone replacement therapy, phalloplasty, metoidioplasty, hysterectomy, mastectomy, orchiectomy, vaginoplasty. We see some asymmetry: 5 out of the 7 concern transmasculine folks whereas only 3 are available to transfeminine people. Indeed, facial electrolysis, laser hair removal, breast augmentation and facial feminization surgeries are not covered. If a transmasculine person can have all their desired surgeries at the expense of the state, the most desired services among transfeminine patients are not covered. This is a gap of several thousand dollars to tens of thousands of dollars. The underlying reason is that the state does not cover cosmetic services and surgeries. Femininity is considered superficial and undesirable, whereas masculinity is seen as fundamental and inherently desirable. Thus, breast reduction is considered necessary but breast augmentation is not. Yet, is it not dysphoria and desire that should decide of medical necessity, rather than the type of surgery? We find the same formalism that we highlighted earlier: the government works through categories applied in an abstract and formal manner, rather than in light of the expressed needs of trans communities.
You won’t be surprised that the first policy for blood donation by trans people fell into the same trap. Under the new Canadian Blood Services policy, trans people are categorised as male or female on the basis of their genitals. The policy flies in the face of the wellbeing of trans people, who are constantly fighting against gender assignment on the basis of anatomy. It also ignores commonsense: the risk factors, properly considered, have to do with our social behaviours, not with our anatomy. More interesting is that virtually none of the organisations they consulted in crafting the policy were specialised in trans issues — because in formal-land, LGBT is good enough — and the resulting suggestions of the consultation process were not followed. Another level of formalism: they seem to think that speaking about trans people in a policy is enough to check their representativeness box. It doesn’t matter that what they say about trans folks might be terrible, right? As the saying goes “there’s no such thing as bad press”… which is quite obviously wrong in this case.
Quebec is one of the best places to be born for a trans person. Nevertheless, Quebec’s political experience should be taken as a warning. Social progress too often follows the agenda of dominant social groups. In contemporary Quebec and Canada, neoliberalism prevails and it is neoliberal formalism that dictates progress on trans issues, rather than trans communities. We can learn from this experience, and we must now ask ourselves how we can hold our government accountable and force it to let us set our own emancipatory agenda. In Quebec, because the fight is far from over, but also elsewhere. That’s my wish: we should get to decide how to emancipate ourselves.
Presentation given in French for the Pride Canada French conference on August 18th, 2017.
