Transgender rights in Canada

Canadian Permanent Residents, Citizens (born inside or outside Canada), Protected Persons, applicants for such status and refugee claimants may apply to Immigration, Refugees and Citizenship Canada using form CIT 0404: Request for a Change of Sex or Gender Identifier.[6] Amendment of documents issued by the person's country of birth, former habitual residence, or nationality is not required. Once the person's gender is changed with IRCC, the agency will issue a Verification of Status annotated with the person's change of name (if any) and gender, as a linking document between their Canadian identity and their foreign birth certificate.[7]{{quote|Since it can be problematic for these clients to obtain services under the new name or gender that appears on their permanent resident card without an official document to link the previous and new names or gender identifiers, IRCC is offering clients the option of obtaining a VOS to serve that purpose.

The standard remark included on the VOS for name changes is as follows:

The name of the bearer of this document, previously identified as “first name / last name”, is to be identified as “first name / last name”.

The standard remark included on the VOS for gender identifier changes is as follows:

The sex or gender of the bearer of this document, previously identified as “F/M/X”, is to be currently identified as “F/M/X”.[8] In July 2020, Global News reported that the policy of not allowing Temporary Residents to change their legal gender was causing harm, especially to asylum seekers. The article cites the case of Naomi Chen (a pseudonym), a trans woman who was born in Hong Kong and holds Chinese nationality and Hong Kong permanent resident status. Chen's HKSAR passport still states her gender as 'male', and consequently she was issued a Refugee Protection Claimant Document by IRCC bearing that gender.[9]

Chen was not able to change her legal gender in Hong Kong, fearing that her marriage, which was solemnized in Hong Kong, would be terminated (Hong Kong does not allow same-sex marriage). She says she is now afraid of interacting with the community, given the incorrect gender designation on her documents.[9] In response, Kevin Lemkay, spokesperson for federal immigration minister Marco Mendicino, said that 'reviewing gender identity requirements for government-issued documents [was] a priority'.[9] Will Tao, a Vancouver immigration lawyer, notes that this restriction is merely policy, and not enshrined in legislation or regulation. He also contends that it may constitute a violation of Section 15 of the Canadian Charter of Rights and Freedoms.[10]

As of November 19th, 2020, refugee claimants are now able to amend the sex indicator printed on their Refugee Protection Claimant Document.[11] However, Temporary Residents are still not allowed this without amending their passport or other travel document first.

Temporary Residents, Permanent Residents, and Citizens (born inside or outside Canada) may also elect to amend their legal gender through a provincial process instead, if they live in Nova Scotia or New Brunswick and have resided there for at least three months. Only Citizens may provincially amend their legal gender in Quebec and Manitoba. PEI law provides for a change along Nova Scotia/New Brunswick's lines, but this is not reflected in practice.[12] Since June 2019, the Canadian passport, citizenship certificate, permanent resident documentation and protected person documentation have offered an "X" option for gender identity.[13]

Following a 2014 court ruling that struck down the existing legislation and its surgery requirements as unconstitutional,[14][15] the government of Alberta modified the Vital Statistics Information Regulation in 2015.[16] The current regulations eliminate the surgical requirement. Instead, the applicant must submit a "statement confirming that the person identifies with and is maintaining the gender identity that corresponds with the requested amendment to the sex on the record of birth," as well as a letter from a physician or psychologist attesting that the amendment is appropriate. Legal change of gender is accessible to minors; this requires the parents' or guardians' consent, although this can be waived by court order or if the minor is emancipated, married, or a parent.[17] A legal change of gender is not accessible to residents who were not born in Alberta.

In British Columbia, the requirement for surgery to change the birth certificate gender marker was removed in 2014. [18]A legal change of gender is not accessible to residents who were not born in British Columbia. Non-binary B.C. resident Kori Doty, along with seven other trans and intersex persons, filed a human rights complaint against the province, alleging that publishing a sex indicator on birth certificates was discriminatory. The British Columbia Human Rights Tribunal agreed in 2015 to hear their complaint.[19] In April 2017, Doty's child, Searyl Atli Doty, became the first in the world to be issued a health card with a "U" gender marker (for 'unspecified'), but the province has refused to issue a birth certificate without specifying a gender. Doty has filed a legal challenge.[19][20]

A change of legal gender in Manitoba is available to persons born there. As of the 1st February 2015, there exists no requirement for trans individuals to have undergone gender confirmation surgery.[21] Section 25(3) of the Vital Statistics Act of Manitoba further provides that "a person may apply to the director for a change of sex designation certificate if the person is a Canadian citizen who has been a resident of Manitoba for at least one year before the date the application is submitted." This follows the Quebec model, but is discrepant with Manitoba's policy for legal changes of name (three months' ordinary residence).[22] As of July 2020, this provision has been implemented by the Manitoba Vital Statistics Agency.[23]

As of October 13, 2020, the gender marker on Manitoba driver licenses and photo cards can either be unspecified or marked with an 'X'. This is in response to a complaint lodged at the Manitoba Human Rights Commission by non-binary individuals. [24]

In April 2017, a bill passed the Legislative Assembly of New Brunswick to add gender identity or expression to the human rights laws and to allow gender changes without the required surgery.[25] A person born in New Brunswick or ordinarily resident there for at least three months may make application to Service New Brunswick for a change of their legal gender.[26]

Persons born in Newfoundland and Labrador have been able to have the sex indicator on their birth registration changed since the adoption of a new Vital Statistics Act in 2009.[27] Initially, that provision was available only to those who had undergone gender confirmation surgery, but such requirement was removed following the December 2015 decision of a Newfoundland and Labrador Human Rights Board of Inquiry on complaints filed with the Human Rights Commission from two trans women.[28][29] The amendment received Royal Assent on April 13, 2016.[30][31]

The first gender-neutral birth certificate in Newfoundland and Labrador, and possibly the first in Canada, was issued December 14, 2017 to Gemma Hickey, a non-binary resident of St. John's, the province's capital.[32] Hickey, an award-winning activist,[33] had launched court action seeking to compel the Government of Newfoundland and Labrador to issue the gender-neutral certificate after their application for such a document was rejected because the application form was limited to male or female designation only. Hickey withdrew the court action after the government agreed to amend the Vital Statistics Act to authorize the issuing of gender-neutral birth certificates. That amendment received Royal Assent on December 7, 2017.[34]

At present, Newfoundland and Labrador has yet to offer a provincial change of legal gender process for persons born outside the Province and now ordinarily resident there, on the same basis as Nova Scotia and New Brunswick.[2]

The Northwest Territories government removed the surgery requirement for a legal gender change from the Vital Statistics Act in June 2016.[35] A legal change of gender is not accessible to residents who were not born in NWT.

A sample certificate of change of sex identifier issued by Nova Scotia.

On May 11, 2015, Bill 82, An Act to Amend Chapter 66 of the Revised Statutes, 1989, the Change of Name Act, and Chapter 494 of the Revised Statutes, 1989, the Vital Statistics Act received Royal Assent. This act abolishes the surgical requirement, instead requiring a statement "that the applicant has assumed, identifies with and intends to maintain the gender identity that corresponds with the change requested," and an attestation from a professional that the applicant's gender identity does not correspond to that listed on the birth certificate. The Act came into force the week of September 24, 2015. [36][37][38]

Therefore, a change of sex indicator is now available in Nova Scotia for persons born there or those who have been ordinarily resident at least three months in the province.[4] Nova Scotia also offers the option of no gender being displayed on one's driver's licence and/or identification card.[39]

Nunavut removed the surgery requirement for a legal gender change from the Vital Statistics Act in March 2015.[40] A legal change of gender is not accessible to residents who were not born in Nunavut.

On 11 April 2012, the Human Rights Tribunal of Ontario ruled that gender confirmation surgery is no longer required for a change in registered gender on Ontario documents. In its decision, the Tribunal ordered that the Ontario government "shall cease requiring transgender persons to have 'transsexual surgery' (sic) in order to obtain a change in sex designation on their registration of birth" and has 180 days to "revise the criteria for changing sex designation on a birth registration".[41][42] A legal change of gender is not accessible to residents who were not born in Ontario.

The Ontario Government affirms that a resident, regardless of birthplace, may amend the gender marker on their driver’s licence and photo card.[43]

In April 2016, the Prince Edward Island government amended the Vital Statistics Act to allow individuals to change their legal gender on ID without surgery. Individuals must present a letter from a doctor attesting to the applicant's gender identity.[44] Islanders can also now choose to display no gender on their PEI-issued driver's licence/voluntary identification card.[45]

Section 12 of the Prince Edward Island Vital Statistics Act specifies that any person "may apply to the Director to record a change of sex on the person's registration of birth", and that it is the director's duty to record this change where the person's birth registration is maintained by the Province, and to transmit details of the change where the person's birth registration is maintained by another jurisdiction to said jurisdiction.[12] This would seem to indicate a change of registered gender regime similar to that of Nova Scotia and New Brunswick's - allowing both persons born and/or residing within the Province to do so; however, at present, the Department of Justice and Public Safety only offers this service to PEI-born individuals.[46]

A sample certificate of change of mention of sex issued by Quebec.

Since October 2015, adults have been able to change their legal gender on birth certificates in Quebec.[47] The process was simplified for minors in June 2016.[48]

To qualify to change legal gender, the person concerned by the application must hold Canadian citizenship and be domiciled in Québec for at least one year. If the person concerned by the application was born in Québec but lives elsewhere, the person may also qualify to change the sex designation if the person shows that such an amendment is not possible in the province or country in which the person is domiciled.[49] They may make application to the Directeur de l'etat civil for a Certificate of Change of Sex Indicator (certificat de changement de la mention du sexe), regardless of their place of birth; however, this is solely limited to a male or female sex designation, forbidding the use of a non-binary gender designator.[50] They may also apply for a combination Certificate of Change of Gender and Name (certificat de changement de la mention du sexe et de nom). After such a certificate is issued, if one is a Quebec-born individual, one's gender may be changed on the birth certificate.

A 2021 court case, Centre for Gender Advocacy v. Attorney General of Quebec, has struck down six legal provisions considered discriminatory towards trans and non-binary Quebeckers, including one forbidding the use of non-binary gender designations.[51] The Quebec government has until the end of 2021 to amend these aforementioned legal provisions.

In February 2016, the provincial government changed the Saskatchewan Vital Statistics Act to eliminate gender confirmation surgery as a prerequisite for changing government documents.[52] In May 2018, a judge ruled that the gender marker can be removed from a birth certificate.[53]

Saskatchewan permits the change of sex designation on a Saskatchewan driver’s licence or photo identification card without updating a birth certificate,[54] which is available to Saskatchewan-born persons only.

On April 25, 2017 a bill called Act to Amend the Human Rights Act and the Vital Statistics Act (2017) was introduced to the Second Session of the 34th Legislative Assembly as Bill 5. Its intended purpose was to add "gender identity or expression" to the Human Rights Act, and to allow the recognition of gender without surgery being required under the Vital Statistics Act.[55] On July 1st, 2017 it went into effect.[56][57]

A person may amend the gender designation on their driver’s licence and/or general identification card by presentation of a Change of Gender Designation form.[58] Amendment of legal gender on a birth certificate is also available to Yukon-born persons.

Bill C-16, which passed in June 2017, added the words "gender identity and expression" in three instances. These words were added to the Canadian Human Rights Act as prohibited grounds for discrimination, and to the Criminal Code in two sections, the first dealing with hate speech and hate incitement and the second regarding sentencing for hate crimes.

In 2005, NDP MP Bill Siksay introduced a bill in the House of Commons to explicitly add gender identity and expression as prohibited grounds of discrimination in the Canadian Human Rights Act. He reintroduced the bill in 2006. In May 2009, he introduced it again, with additional provisions to add gender identity and expression to the hate crimes provisions of the Criminal Code.[59] In February 2011, it passed third reading in the House of Commons with support from all parties, but was not considered in the Senate before Parliament was dissolved for the 41st Canadian federal election. Two bills—C-276 and C-279—on the subject have been introduced in the 41st Canadian Parliament, by the Liberals and the NDP respectively. The NDP's Bill C-279 passed second reading on June 6, 2012.[60] However, the bill again died on the Senate order paper when the 2015 federal election was called. In May 2016, An Act to amend the Canadian Human Rights Act and the Criminal Code (C-16) was introduced to the House of Commons of Canada, to add and include "gender identity or expression" in the Canadian Human Rights Act.[61] In June 2017, the Parliament of Canada passed bill C-16 and received royal assent a week later. The law went into effect immediately as Bill C-16.

The federal government and every province and territory in Canada has enacted human rights acts that prohibit discrimination and harassment on several grounds (e.g. race, gender identity or expression, age, marital status, sexual orientation, disability, sex, religion) in private and public sector employment, housing, public services and publicity. Some acts also apply to additional activities. These acts are quasi-constitutional laws that override ordinary laws as well as regulations, contracts and collective agreements.[62] They are typically enforced by human rights commissions and tribunals through a complaint investigation, conciliation and arbitration process that is slow, but free, and includes protection against retaliation. A lawyer is not required.

In 1977, the Quebec Charter of Rights and Freedoms, which is both a charter of rights and a human rights act, was amended to prohibit discrimination based on sexual orientation. Thus, the province of Quebec became the first jurisdiction in the world larger than a city or county to prohibit sexual orientation discrimination in the private and public sectors. Today, sexual orientation is explicitly mentioned as a ground of prohibited discrimination in the human rights acts of all jurisdictions in Canada. In 2016, gender identity or expression was added to the Quebec Charter.[63]

Sexual orientation is not defined in any human rights act, but is widely interpreted as meaning heterosexuality, homosexuality and bisexuality. It does not include transsexuality or transgender people.[64] The Federal Court of Canada has stated that sexual orientation "is a precise legal concept that deals specifically with an individual's preference in terms of gender" in sexual relationships, and is not vague or overly broad.[65] The Ontario Human Rights Commission has adopted the following definition:

Sexual orientation is more than simply a 'status' that an individual possesses; it is an immutable personal characteristic that forms part of an individual's core identity. Sexual orientation encompasses the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations.[66]

All human rights laws in Canada also explicitly prohibit discrimination based on disability, which has been interpreted to include AIDS, ARC and being HIV positive, and membership in a high-risk group for HIV infection.[67]

Since June 2017, all places within Canada explicitly within Canadian Human Rights Act, equal opportunity and/or anti-discrimination legislation prohibit discrimination against gender identity or gender identity or expression.[56]

In addition, human rights commissions consider that sex discrimination includes discrimination based on gender identity at the federal level and in New Brunswick.[68][69][70]

The Ontario Human Rights Commission defines gender identity as follows:

Gender identity is linked to an individual's intrinsic sense of self and, particularly the sense of being male or female. Gender identity may or may not conform to a person's birth assigned sex. The personal characteristics that are associated with gender identity include self-image, physical and biological appearance, expression, behaviour and conduct, as they relate to gender. … Individuals whose birth-assigned sex does not conform to their gender identity include transsexuals [sic], transgenderists [sic], intersexed [sic] persons and cross-dressers. A person's gender identity is fundamentally different from and not determinative of their sexual orientation.[70]

Discrimination, including harassment, based on real or perceived sexual orientation, HIV/AIDS and gender identity is prohibited throughout Canada in private and public sector employment, housing and services provided to the public. All aspects of employment are covered, including benefits for spouses and long-term partners. Examples of services include credit, insurance, government programs and schools open to the public. Schools open to the public are liable for anti-gay name-calling and bullying by students or staff.[98]

Prohibited discrimination occurs not only when someone is treated less favourably or is harassed based on a prohibited ground, but also when a policy or practice has an unintended disproportionately adverse effect based on that ground. This is called "adverse effect discrimination."[99] For example, it might in theory be discriminatory for schools to implement a uniform policy that has specifically gendered uniforms.

LGBT Canadians have been allowed to serve in the military since the Douglas case was settled in 1992.[100] However, in March 2019 The Canadian Armed Forces (CAF) issued revised policies with a mandate of inclusion of gender diverse Canadians. The new directive stresses ones right to freely express their gender identity and outlines uniform and naming protocols, medical and surgical support opportunities and accommodations to privacy.[101]

In 2018 new operations were implemented to accommodate offenders based on gender identity instead of sex assigned at birth. These policy amendments are a result of The Canadian Human Rights Commission, The Correctional Service of Canada and Prisoners Legal Services combined efforts. They include changes such as using an offenders preferred name and pronouns, placing offenders in a men's or women's institutions based on gender identity regardless of anatomy and ensuring the privacy, dignity and safety of trans or gender-diverse offenders.[102]

Policy numbers and titles that have been amended

CD 352 – Inmate Clothing Entitlements

CD 550 – Inmate Accommodation (and User Guide)

CD 566-7 – Searching of Offenders

CD 566-10 – Urinalysis Testing

CD 566-12 – Personal Property Of Offenders

CD 567-1 – Use of Force

CD 577 – Staff Protocol in Women Offender Institutions

CD 702 – Aboriginal Offenders

CD 705-1 – Preliminary Assessments and Post-Sentence Community Assessments

CD 705-3 – Immediate Needs Identification and Admission Interviews

CD 705-7 – Security Classification and Penitentiary Placement

CD 710-2 – Transfer of Inmates

CD 800 – Health Services

GL 800-5 – Gender Dysphoria

CD 843 – Interventions to Preserve Life and Prevent Serious Bodily Harm[103]

In 2015, Ontario premier Kathleen Wynne directed her Health Minister, Eric Hoskins, to petition the College of Physicians and Surgeons of Ontario for a ban on conversion therapy under their standards of practice. As well, Wynne spoke in favour of a bill tabled by Cheri DiNovo, a member of the provincial New Democratic Party, that would outlaw any attempt to change the gender or sexuality of a person under 18 via therapy. The bill passed unanimously in the Legislative Assembly of Ontario.[106] Wynne, as the first openly gay Premier in Canada, stated that youths expressing their sexuality and gender identity should be protected, and that young LGBTQ people are especially vulnerable to these conversion therapy practices.[106]

Also in 2015, Manitoban Health Minister Sharon Blady announced plans for the province to ban the practice of conversion therapy, and stated that conversion therapy had "no place" in Manitoba's healthcare system.[111] This ban targeted the conversion of homosexual people to heterosexual, and had no specific provisions for transgender individuals being "converted" to cisgender.[107]

A bill banning conversion therapy for sexual orientation and gender identity was passed unanimously in the House of Assembly of Nova Scotia in 2018.[112] The bill, lauded by Nova Scotian Justice Minister Mark Furey as the "most progressive piece of legislation around sexual orientation and gender identity in the country[112]" bans the promotion of such practices to persons under 19, but contains a very controversial clause allowing "mature minors" between the ages of 16 and 18 to consent to being subject to the practice.[113]

The B.C. government has tabled legislation to ban the practice of conversion therapy that is in line with other provincial bans, though no vote has taken place as of November 2019. In August 2019, the B.C. government called on the federal government to add conversion therapy into the Criminal Code of Canada and take action banning the practice nationwide.[114]

Vancouver became the first jurisdiction in British Columbia to ban the practice for gender identity and sexual orientation in 2018. This ban, added to Vancouver's business prohibition bylaw, prohibits the offering of these services to people of any age and was passed unanimously by the Vancouver City Council.[108]

The city of Edmonton unanimously passed bylaw 19061, prohibiting conversion therapy within the city [115]

Though conversion therapy has not been known to happen in St. Albert, the city council unanimously passed a motion to ban it as a statement against the practice.[76]