My victory only helps me
Celebrating my own win while continuing to challenge incremental progress for trans people in Canada born abroad
In January, 2014, I legally changed my name and began identifying as female in all spheres of my life. Since that time, I have faced an administrative battle familiar to many trans people: the fight for recognition of my new name and gender marker on identity documents. In June, 2016, with the help of my MP’s office and my lawyer, Adrienne Smith, I finally received my updated Certificate of Canadian Citizenship.
I am once more able to access government services under the correct name and gender — a right cisgender (cis) Canadian citizens take for granted. With many policy changes having taken place at the provincial level in recent years, many trans people also now take access to correct identity documents for granted.
In many provinces, trans people are now able to change our birth certificates. In these cases, Passport Canada, Service Canada, and other federal bodies now accept provincially-issued birth certificates as proof of identity, and will use them to support a change to gender/sex marker on official records.
However, for Canadians such as myself — born abroad to a Canadian citizen — and for refugees and immigrants to Canada, our birth documentation is held by our countries of origin. In these cases, a Certificate of Citizenship issued by Immigration, Refugees and Citizenship Canada (IRCC, formerly CIC) substitutes for our birth documents when dealing with other government branches such as Service Canada, Passport Canada, and others. It serves as authoritative documentation of birth date, nationality, and gender/sex. That is, until you need to actually change your records with them.
This poses some major obstacles, not the least of which occurs when IRCC policy is disconnected from the policies of other jurisdictions in Canada. Only in March of 2016 did IRCC formally bring their policies into alignment with the trend in reform of provincial policies. Gestures were made in that direction as early as April of 2015, which was when I finally felt compelled to attempt to apply. Prior to that time, there had been a strict internal policy that applicants for a change in gender marker provide proof of having undergone surgical reassignment — a practice that has been criticized by many as a form of compulsory sterilization.
Is it truly self-identification?
In spite of a National Post announcement that “Transgender Canadians can now self-identify on citizenship documents without sex-reassignment surgery”, the actual policy changes they discussed did not officially occur until this year. As HG Watson pointed out at Daily Xtra in May, 2015:
[This new policy will simplify the process of changing gender on citizenship documents] if you live in one of the provinces or countries that doesn’t still require SRS to change your gender on official documentation. In Canada, five provinces still require proof of SRS in order to change a birth certificate.
Globally, there are many countries that still require proof of SRS to change identification — if they’ll change it at all.
Further, “self-identification” is a complete misnomer for the policy change, then and now in its final form; IRCC continues to require legal or medical evidence of a gender marker change from authorities other than the individual involved. That is the opposite of self-identification.
IRCC policy on “change of sex designation for reasons other than a clerical or administrative error” has three categories of documentation to choose from to substantiate a gender/sex marker change (from IRCC’s webpage discussing the policy, updated March 23, 2016):
- Provincial or territorial documents (a legal document issued by a provincial vital statistics organization, an amended birth certificate, or a court order)
- Proof of “sex reassignment surgery” from a “medical practitioner in good standing”
- Both a statutory declaration from the applicant (including reasons why provincial or territorial documents couldn’t be obtained) and a letter from a doctor or psychologist.
Only the statutory declaration truly counts as self-identification (as declared to a lawyer), and it must be accompanied by a professional’s clinical opinion. The only personal agency involved for those who lack acceptable provincial or territorial documentation is the choice of how and to what extent to have their rights violated.
Option #2 has been confirmed as a rights violation by courts in Ontario among other provinces. It should no longer be present even as one of many possible requirements.
My application included — with reservations expressed to my lawyer— letters from my past psychologist and psychiatrist stating professional opinions that it is appropriate to adjust my gender/sex marker to read “female”. Though such a revision to IRCC policy is laudable for overturning coercive sterilization and the accompanying mandatory medical disclosures, it remains a discriminatory step cisgender applicants do not face. Further, seeing a psychologist if no psychiatrist is available imposes a discriminatory financial burden on the majority of trans people.
Cis people do not need to have doctors or psychologists attest to the legitimacy of their genders.
The threat of long wait times
Even if the policies and practices in the decision process around trans name and gender marker changes were acceptable, the wait times are simply not; it took one full year from the start of my application to the result in receiving my updated documentation, and that is with the help of a laywer and a member of parliament. It’s my understanding that applicants seeking to change either name or gender marker would continue to face long waits of at least six months under the new policy.
Trans people often face employment and housing discrimination. This discrimination is not always overt, and often operates in deeper, systemic ways through cascading administrative hurdles.
When applying for a job, a misalignment of one’s legal name and the name appearing on one’s social insurance data (through Service Canada) can be viewed as fraudulent activity by potential employers, and result in denial of a job opportunity. Likewise with gender/sex marker.
When applying for an apartment rental, cell phone service, or other type of service, credit checks have become a common practice. Credit checks in Canada are tied to one’s social insurance number and legal name as held in Service Canada records. The gender field is sometimes used for confirmation of identity as well. When these records fail to align one is likely to fail credit checks and be denied service or tenancy.
Additionally, explanations which result in a need to cross-check multiple ID documents bearing different names and gender markers is viewed with suspicion by potential service providers, employers, and landlords, and one is likely to be denied at that point based on complexity alone.
If travel is a requirement for a trans person’s work, ability to obtain a passport can become a struggle. Passport Canada offers an emergency two year passport option to trans people in situations where immediate travel is necessary, but to my knowledge it still requires the signing of a waiver of one’s legal rights as a citizen while travelling abroad.
If in a situation where one may need to deal with police, security agents, courts, or the prison systems, one is often locked into the use of one’s legal name and gender marker as appears on one’s identity documents. This can be a source of difficulty, discrimination, and stress. Prolonged wait times to have information updated potentially increase the risk of self-harm and violence for those in these systems.
Long wait times magnify the discrimination we face and extend it where some of us may previously have been able to avoid it. Where visible and out trans people may face some amount of overt and covert discrimination based on appearance, voice, or manner, long wait times on correct documentation result in outing trans people who would ordinarily be shielded from direct discrimination.
My privilege
Even in light of the difficulty I faced in updating this documentation, I did so with a number of privileges that must be recognized as such:
- I was employed at the time in the computer software industry. Income from that job enabled me to seek legal help;
- I retained the services of a well-connected lawyer who included a letter from Kyle Kirkup — a notable, published expert in LGBTQ law — in my application;
- I am self-identified as a woman to the extent that I am content to have my gender listed as woman and my gender/sex marker listed as F. For non-binary individuals, there are currently no valid options in Canada, though apparently our current government is investigating the possibility;
- I chose to pursue medical transition, and had access to medical professionals to whom I was able to turn for supporting documentation. This was not an avenue I enjoyed pursuing due to the discriminatory nature of government’s requiring these documents, but I had access to it as an option nonetheless;
- I had previously faced no other discrimination from the federal government as a white, middle-class Canadian. Those who face other hurdles in dealing with government are likely to face compounded difficulty during and after gender transition;
- I am not imprisoned or historically implicated in any illegal activities that might raise red flags when dealing with government. Provincial name changes require background checks, and federal name and gender marker changes may be difficult to access from within our prison systems.
Concluding thoughts
While my efforts and the work of my lawyer and MP did succeed in obtaining documentation for me, they did not succeed at forcing changes in the federal bureaucracy that will truly benefit all transgender Canadians. Changes are underway but those changes are incremental steps and not the widespread changes needed to support other transgender Canadians born abroad, those in poverty, those with non-binary genders, those in prisons, those who perform sex work, and those who already face government sourced discrimination beyond that relating to gender.
In light of the push for transgender inclusion in human rights legislation, and the current federal government’s efforts to do so under Bill C-16, it remains necessary for them to reduce the ways in which government itself introduces hurdles in trans lives.
The Government of Canada must take responsibility for the ways in which its own policies have both manufactured and perpetuated harmful scenarios for trans individuals in terms of employment, tenancy, access to services, and treatment in care of the government.
While explicit mention in federal law is important, and something I have fought hard for on behalf of trans people, it’s ultimately meaningless while the government itself continues to harm us through discriminatory treatment and undue wait times on critical documentation changes. The Government of Canada must clean up its own act before it can be looked to as a protector of trans rights across the nation.
