A huge step backward for trans rights

Québec’s recently proposed family law reform, known as Bill 2, is in part the legislative response to the January 2021 trans rights victory in Centre for Gender Advocacy v. Attorney General of Quebec. According to the province’s Justice Minister Simon Jolin-Barrette, its objective is to adopt a more trans-inclusive approach in regards to official documents. However, the bill has the opposite effect and is a violation of the Canadian Charter of Rights and Freedoms and the Quebec Charter of Rights and Freedoms. We stand in solidarity with Prof. Sam Singer, a trans law professor and lawyer, in asking the Quebec government to “...amend Bill 2 and give trans people in Quebec back their victory.”

In Centre for Gender Advocacy, the Quebec Superior Court found that youth have the right to apply to change their sex designations without documentation from a medical professional; non-Canadian citizens living in Québec have the right to change their names and sex designations; non-binary people have the right to change their designations to an identifier other than “male” or “female” on identification documents; and trans parents have the right to change their parental designations on their children’s birth certificates and to be recognized as a “parent”.

The Cetre for Gender Advocacy case also emphasizes the dangers of outing trans and non-binary people through their identity documents. Unfortunately, Bill 2 creates a legal framework that forces trans and non-binary people to out themselves in a variety of everyday situations. We are particularly concerned about two amendments that would have that effect.

First, Bill 2 anticipates that only persons who have undergone surgical interventions to modify their sexual organs can change their sex marker on their birth certificate.

Second, it only permits trans parents to designate themselves as “parent” on their child’s birth certificate. By only allowing trans parents access to the designation of parent, this rule has the effect of singling them out.

We agree with Céleste Trianon, a trans rights advocate at the Centre for the Fight Against Gender Oppression, who describes the bill as “the most directly transphobic [bill] ever proposed in Quebec, as well as in Canada.”

Forced surgery is discriminatory

Since 2012, human rights laws across Canada have facilitated access to identity documents for trans persons, and more recently to non-binary persons. In the 2012 case of X.Y. v Ontario  and the  2014 decision in  C.F. v Alberta, the Ontario Human Rights Tribunal and Alberta Court of Queen’s Bench found that legislative provisions making a change in sex designation on birth certificates conditional upon surgery were discriminatory. These groundbreaking decisions produced a wave of legislative change across Canada. For example, the requirements to undergo surgery to change one’s sex on citizenship certificates, permanent residency cards, passports, and travel documents were removed. These legal changes reflect a shift in other jurisdictions toward facilitating  access to identity documents.

Forced “outing” violates privacy

A birth certificate is an essential legal document. When it contains inaccurate or private information about trans people’s gender histories, it forces a trans person to “come out”. Trans people may have to use a birth certificate in many contexts, including to register for school or obtain a driver’s license. When their gender expression does not correspond with the legal sex noted on their identity documents, trans people are forced to reveal their gender history to strangers and people in positions of authority. This violates trans people’s rights to privacy and exposes trans folks to discrimination or violence. In 2016 the Privacy Commissioner of Alberta ruled that the forced outing of trans people is a violation of their privacy rights. The fear of discrimination and violence can cause trans people to forego important services that require one to produce a birth certificate.

Bill 2 also imposes a forced “coming out” on trans parents when they register the birth of their children. Even though some provinces offer the options of “mother,” “father,” or “parent” for all birth registrations, the Quebec Bill isolates trans parents by only offering them the option of “parent.” Separating trans and non-binary parents from other parents forces trans and non-binary parents to reveal their gender identity each time they use their child’s birth certificate. The discriminatory consequences and the infringement of privacy of this forced divulgement of trans persons’ identities will be felt by all family members, including the children of trans parents.

Toward a more inclusive path

If Bill 2 is adopted, it will undo the important human rights gains for trans people in Quebec won in the Centre for Geder Advocacy decision, and will introduce the most regressive legal framework for changing identity papers in Canada. Statements made by Minister Jolin-Barrette to Le Devoir on November 8 are encouraging. However, if the government is truly committed to respecting the court’s decision in Centre for Gender Advocacy and upholding trans rights, it must meaningfully consult the communities immediately on how to fix Bill 2.