For immediate publication
Toronto – A significantfrom the Human Rights Tribunal of Ontario (HRTO) in XY v. Ministry of Government and Consumer Services reinforces the human rights of trans people. The decision found that legislation requiring a person to have “transsexual surgery” before they can change the sex designation on their birth registration is discriminatory.
It says that requiring surgery adds to the disadvantage and stigma experienced by members of this community, and reinforces the stereotype that transgender persons must have surgery in order to live in their felt gender. It also found that the goals of the Vital Statistics Act (VSA) would not be harmed by removing this requirement.
The decision confirms the Ontario Human Rights Commission’s (OHRC) position that gender identity should be recognized based on lived identity, and not depend on a surgical procedure. The decision cites the OHRC’s Policy on Discrimination and Harassment Because of Gender Identity. The policy, published in 2000, suggests that the process for issuing birth certificates under the VSA discriminates against transgender persons. The OHRC intervened in the case to assist in the interpretation of the statute.
“Transgender people’s rights are human rights. This decision is a welcome step forward in recognizing and promoting the dignity and equality of trans people,” remarked Chief Commissioner Barbara Hall.
The decision requires the Ontario Ministry of Government and Consumer Services to:
- stop requiring transgender persons to have “transsexual surgery” in order to obtain a change in sex designation on their birth registrations
- revise the criteria for this change, within 180 days of the date of the decision, to remove the discriminatory effect, and
- take reasonable steps to publicize these changes within the trans community within a further 30 days
“My client and I are delighted at the careful consideration the Tribunal gave to both the lived reality of trans- people’s lives and the legal arguments with respect to the Vital Statistics Act’s discriminatory impact on that community,” said Susan Ursel, counsel for XY. “We need to do so much more to build our understanding of this community’s issues and how we can better respond to their legitimate call for self-actualization without oppressive treatment by others. This decision is an important step along that journey to understanding.”
- In June 2000, the OHRC released its Policy on Discrimination and Harassment because of Gender Identity. The Policy is intended to help the public understand how the Human Rights Code protects against discrimination and harassment because of gender identity under the ground of sex.
- Since 1999, the OHRC has recommended that gender identity be listed as a separate ground under Ontario’s Human Rights Code, in order to provide greater clarity that transgender people are equally protected under the law.
- The term ‘transgender’ refers to people whose sense of self, particularly their sense of being male or female, is different than social expectations based on their birth-assigned sex. It includes transsexuals, cross-dressers, intersex individuals and other people.
- This decision leaves it to the Ministry of Government and Consumer Services to determine an appropriate alternative process for sex designation changes under the VSA. The Tribunal cited the process currently in use by the Ministry of Transportation (MTO) for driver’s licences. The MTO process is based on a settlement the OHRC participated in at the Tribunal in a similar case in 2005.
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