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OHRC submission regarding MGS Consultation: Change of sex designation on a birth registration of a minor

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Ontario Human Rights Commission submission
Regarding  Ministry of Government Services Consultation:
Change of Sex Designation on a Birth Registration of a Minor

August 22, 2014

Human rights overview

The Ontario Human Rights Commission (OHRC) welcomes the Ministry of Government Services’ consultation regarding change of sex designation on a birth registration of a minor. The OHRC made a submission[1] in 2012 during the government’s first consultation following the Human Rights Tribunal decision in XY v. Ontario dealing with change of sex designation on birth registrations and certificates.[2]

In April 2014, the OHRC released a new Policy on preventing discrimination because of gender identity and gender expression.[3] The Policy recognizes that everyone has the right to self-define their gender identity, including youth. This is in keeping with the Yogyakarta Principles on the application of international human rights law in relation to gender identity.[4]

The Policy says that trans people can have their name or sex designation changed on identity documents and other records. The criteria and process should not be intrusive or medically based. Organizations should have a valid reason for collecting and using personal information that identifies a person’s gender. They should keep this information confidential.

Many identity documents such as birth certificates, health cards, passports, drivers’ licences, and school and medical records, show a person’s sex designation. For trans people, these documents may not match their lived gender identity. Discrepancies can create significant barriers, disadvantage and even health and safety risks for trans people, including youth, especially when they try to access employment, housing and services like education.

Schools, shelters, hospitals, potential employers or even police might ask trans youth and adults invasive questions about why their gender expression does not “match” the sex designation on a birth certificate or other official document. Such organizations might be unwilling to recognize the person’s self-identified gender and name. Trans people might be placed in the “wrong” sex segregated setting such as dorm or hospital rooms or they might be expected to use washrooms that do not match their lived gender. Trans people might also face harassment and other forms of discrimination as a result.

As the government is aware, international human rights standards[5] and recent case law[6] confirm that trans people cannot be expected to go through sex reassignment surgery, or any other medical procedure, as a condition to change the sex designation on their identity documents.

While the government has not yet amended the Vital Statistics Act following the XY decision, in practice it no longer requires sex reassignment surgery as a condition for change of sex designation. However, current government practice prohibits any change on the birth registration or certificate of individuals under age 18. The Vital Statistics Act has no such prohibition and is otherwise silent on the matter.

Changing sex designation on birth registrations and certificates of minors

The OHRC is concerned that the current government practice – which does not allow for a change of sex designation on the birth registration and certificate of persons under age 18 – is discriminatory on the basis of gender identity and gender expression. This is because it can have an adverse affect on the lives of trans people while they are young and into adulthood.

The government’s blanket restriction might be difficult to justify, as there are other areas of law and social policy that allow for parents or guardians to make decisions on behalf of their child. Some laws also require the informed consent of the child under certain conditions. In some cases, a youth might be able to decide alone without the consent of a parent or guardian if the circumstances are appropriate. For example:

  • Under the Change of Name Act, all people with lawful custody must give consent to change the name of a person under age 18. [7] If a child is age 12 or older, they must provide consent as well.[8] At age 16, they can apply on their own but still require the consent of their legal guardian(s).[9]
  • Under the Health Care Consent Act (HCCA), there is no minimum age at which minors can independently consent to health care. It depends on the person’s capacity to understand the relevant information and to appreciate the reasonably foreseeable consequences of a decision. The HCCA sets out factors required for consent related to treatment including that it be informed and voluntary.[10]
  • Under the Child and Family Services Act, an order for adoption cannot be made without written consent of any child age seven or older.[11] At age12, children can receive counseling services with no other person’s consent. If the child is under 16, the service provider will need to ask the child if they wish to involve a parent.[12]

The OHRC recommends that there should be provisions allowing for a change of sex designation on the birth registration and certificate of minors, or at least no blanket restriction against doing so.

Other jurisdictions have found ways to deal with change of sex designation on the birth registration and certificates of minors. For example:

  • British Columbia passed legislation in 2014 removing the requirement for sex reassignment surgery and replacing it with the requirement for a declaration from the applicant, and in the case of a minor, the consent of all guardians, as well as a supporting statement from a physician or psychologist.[13]
  • Under Manitoba’s Vital Statistics Amendment Act (2014), if the applicant for a change of sex designation is a minor, a supporting letter is to include a statement that the health care professional is of the opinion that the minor has the capacity to make health care decisions.[14]
  • In New Zealand, a legal guardian can make the application for someone under the age of 18, and there is no minimum age restriction. Someone aged 16 or 17 who is, or has been, in a marriage, civil union or a de facto relationship is an adult for the purpose of these provisions.[15]
  • In Germany, a trans person under the age of 18 can apply to the court for legal gender recognition. From the age of 12, a trans person would have the right to be heard in their case.[16]
  • In Argentina, the recorded sex of a person under age 18 can be changed to match their gender identity. This request must be made through their legal guardian. The child or young person’s explicit agreement is required, taking into account the evolving capacities and the best interests of the child. If the legal guardian’s consent is denied or impossible to obtain, summary proceedings can be taken before a judge.[17]

Non-age related criteria

The OHRC generally supports the government’s other non-age related criteria for change of sex designation. These criteria should apply to adults and minors alike:

A statutory declaration by the applicant [and/or their legal guardian(s)] that:

  • The person has assumed (or has always had) the gender identity that agrees with the change in sex designation; and,
  • The person is living full-time in the gender identity and they intend to maintain that gender identity; and

A letter of corroboration from a physician, psychologist or psychological associate [or other categories of persons]

  • Confirming the applicant’s gender identity does not match the sex designation on their birth registration; and
  • Stating their opinion that the change of sex designation on the birth registration is appropriate; or

Alternate documentation from other jurisdictions.[18]

While sex reassignment surgery and other medical procedures cannot be a requirement, the fact that some trans people have undergone medical procedures can be one of a number of indicators supporting a request for change of sex designation on official documents, regardless of age.

Similarly, a medical diagnosis cannot be a requirement or factor for signing a letter of corroboration. The government should clarify that the role of the person who signs the supporting letter is to confirm that the person, regardless of age, identifies with and is living in the gender that agrees with the change in sex designation on a birth registration and certificate.

Government eligibility criteria for change of sex designation should not specify a prior length of time for living in the desired gender or for being in the care of a professional. This will vary according to each person’s transition circumstances.

As the OHRC recommended in its 2012 submission[19] to the government, there should be more categories of people who could sign a corroboration letter and not just a physician, psychologist or psychological associate. Such persons might include social workers, nurses, school or college or university officials, therapists, employers or members of one’s family or faith community.

There should also be no restriction against changing the sex designation on a birth registration or certificate more than once. Such a restriction would negatively affect individuals whose gender identity is non-binary, diverse or fluid.

There should be options for a third category for sex designation such as “transgender” or “x”, or even no sex or gender indicator at all, on birth registrations and/or certificates and other official documents. For example:

  • In New Zealand, any citizen can choose whether they want M, F, or X on their passport. New Zealand drivers’ licences also adopted this approach, though sex designation is held on a database and does not appear on the licence itself.[20]

These last two recommendations would be in keeping with the OHRC’s Policy, which describes gender identity very broadly.[21] The statutory declaration that the person identifies with and is living in the gender that agrees with the change in sex designation would apply equally to an individual whose gender identity is non-binary, diverse or fluid.

The government should make sure that the criteria and process for collecting, using and sharing information about a person’s gender identity protects and promotes privacy and confidentiality. For example:

  • Following advice from the OHRC, the Change of Name Act was amended in 2006 to allow a trans person the option of not having their name change published in the Ontario Gazette.[22]

The government should make changes and clarifications to its online and print guides, forms and instructions as well as staff training that reflect these recommendations. This will help promote and protect the rights of trans people and make the requirements and the process for change of sex designation on birth registrations and certificates more compliant with Ontario’s Human Rights Code and the OHRC’s Policy.

Finally, the government may wish to consult with the Uniform Law Conference of Canada and the British Columbia Law Institute on their project to help modernize vital statistics legislation in Canada. The project recognizes the need to change current laws relating to change of sex designation, which are increasingly being held by courts and human rights tribunals as discriminatory. The project also recognizes that procedures used by vital statistics offices to approve applications remain dated and ethically problematic.[23]

 

[1] OHRC 2012 submission to the Ministry of Government and Consumer Services, online: http://www.ohrc.on.ca/en/re-consultation-document-%E2%80%93-revised-criteria-change-sex-designation-ontario-birth-registration.

[2]XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII).

[3] OHRC Policy on preventing discrimination because of gender identity and gender expression. Online: http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression.

[4] See Yogyakarta Principles, Principle 3: The right to recognition before the law, online at http://www.yogyakartaprinciples.org/principles_en.pdf.

[5]Ibid.

[6] In XY v. Ontario (Government and Consumer Services), the Human Rights Tribunal of Ontario found that requiring trans people to have transsexual surgery to change their sex designation on a birth certificate (under the Vital Statistics Act) was discriminatory and not a reasonable and bona fide requirement. Supra, note 2, at paras. 14-17, 238.

[8] Ibid, s.5(2).

[9]Ibid, s. 4(1).

[11] See s.137 (6) of the Child and Family Services Act, online: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c11_e.htm.

[12] See s.28, Ibid.

[13] See s.115 of Bill 17, Miscellaneous Statutes Amendment Act (2014), online: https://www.leg.bc.ca/40th2nd/3rd_read/gov17-3.htm

[14] See Manitoba’s Vital Statistics Amendment Act (2014), online at https://web2.gov.mb.ca/bills/40-3/b056e.php.

[15] See License to Be Yourself, Open Society Foundations, May 2014, pp20-21, online at http://www.opensocietyfoundations.org/sites/default/files/license-to-be-yourself-20140501.pdf.

[16]Ibid.

[17] Ibid.

[18] See ServiceOntario’s Application for a Change of Sex Designation on a Birth Registration, online: http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf/GetFileAttach/007-11325E~1/$File/11325E.pdf

[19] See OHRC submission, supra, note 1.

[20] Supra, note 3. Also see Appendix C of the OHRC’s Policy which sets out a best practice checklist for collecting data on sex and gender.

[21] OHRC Policy, supra, note 3. Section 3 of the OHRC’s policy reads, “Gender identity is each person’s internal and individual experience of gender. It is a person’s sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex.”

[22] Bill 152, Ministry of Government Services Consumer Protection and Service Modernization Act, 2006 amended ss. 8(1)(a) and 13 of the Change of Name Act, R.S.O. 1990, c. C.7 as well as the regulations (R.R.O. 1990, Reg. 68, s. 6).

[23] Uniform Vital Statistics Act Project, online: http://www.bcli.org/project/uniform-vital-statistics-act-project.