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Ontario trans rights decision makes Canadian history


Ontario trans rights decision makes Canadian history

Lawyer N Nicole Nussbaum.Members of the Trans Lobby Group at Queen's Park in 2010. IMAGE 1 OF 2
Surgery no longer prerequisite for birth certificate change
In what a London lawyer is calling a “game-changing decision,” the Ontario Human Rights Tribunal has struck down a rule that required trans people to undergo "transsexual surgery" in order to change the sex category on their birth certificates.

Released April 11, the 95-page decision follows a challenge by one trans woman who complained she was discriminated against because she could not change her legal documents unless she had surgery. However, she did have surgery in 2008.

“She had an orchiectomy (the removal of the testicles), at least in part to satisfy the requirement to change the sex designation,” explains lawyer N Nicole Nussbaum.

The tribunal found that the Vital Statistics Act requirement of “transsexual surgery” prior to changing the sex designation on a birth certificate discriminates against trans people, she says. The provincial government has been ordered to remove this stipulation.  

“They completely knocked that out,” Nussbaum says. “The tribunal doesn’t have the authority to strike down a law, but they can say the law is not enforceable.”

An emotional Susan Gapka, the chair of the Trans Lobby Group, says she is still poring over the decision. She tells Xtra it is a key building block toward allowing trans people to be included in society. She hopes it will support Toby's Law, which is currently moving through the provincial legislature. Toby's Law would amend the Ontario Human Rights Code to include gender identity and gender expression. 

“I’m absolutely ecstatic,” she says, noting Ontario will be the first Canadian province to legally recognize this distinction. “This is a very good decision. It supports what we have been saying all along, and now the court has acknowledged that.”

As a result of the decision, Ontario now has 180 days to revise the criteria for sex designation change. The government must now present “some alternate requirement,” Nussbaum says. “One idea that is being considered is having a guarantor process, so there would be some third-party guarantor confirm that a person is living in a particular gender.”

The precedent-setting decision could force changes to legislation in other provinces and territories, she says.

Additionally, the birth certificate is used as a foundation document to change federal identifications, such as passports. “It will be also interesting to see how this affects passports, which also has a surgical requirement. This decision may be enough to change policy on a national level.”

Gapka agrees. “This is a clear signal to the federal government, and all legislatures across the country, that Ontario is leading the way in harmonizing and modernizing the way legal documents are distributed and accessed by trans people. This is a wonderful day.”

During the provincial election in October, Trans Lobby Group activist Christin Milloy, who was running for the Libertarian Party in Mississauga–Brampton South, made the issue one of her platform priorities.

“There's a lot of bureaucracy in changing your sex designation in Ontario," she told Xtra at the time. "For the birth certificate, which is issued by the province, proof of transsexual surgery is required. That's the exact phrase they use.”

SRS was first listed by OHIP in 1971, but then-premier Mike Harris cut the funding in 1998, Gapka explains. The procedure was relisted under the Ontario Liberals in 2008. At the time, the minister of health, George Smitherman, said eight to 10 people undergo SRS every year at a total annual cost of about $200,000. 
  Ontario Tribunal Decision on Vital Statistics Act surgery requirement
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Let's fight this

A movement trying to get the government of Canada to put the gender designation F instead of M for transgendered women on travel identity documents.

Trans women are designated F only if she has full SRS and not just top surgery. trans men are designated M with only top surgery.

Most of the transwomen in Canada will face violence and doscrimination if attempting to travel to their country of birth as their community is so small that the border officer might know their family.

While Ottawa is awash in a sea of red, let us march on Parliament with our river of pink showing that Canada does not regard Transwomen us as Canadian enough. Stealth or out, allies, friends and family must all join in to change this.
A good decision
This is definitely great news. I was always confused as to why I was allowed to change the gender on my drivers licence with only a letter from my doctor but my birth certificate had to wait for SRS.
A good improvement but not yet on target
Why should trans people have to undergo special examinatory processes to be certified to be themself when there are no equalient requirement for other even more important things?

We need to move in the direction Argentina currently does, with a (coming) law that allows people to change their legal gender without any medical/examination requirements.

People are already allowed to do other silly "jack ass" prank legal changes, for example chaning name to "heywood yablowme" or similar. There seems to be no real problem with letting people make such decisions.

If someone has objections to removing all medical/examinatory requirements for legal change then please come up with real examples where a "prank" legal change of any kind has actually caused any problem for a third party.

I have never heard any good argument against letting people decide their legal gender themself. The arguemts I've heard does always have some kind of logical lapsus in them, like for example the "transvestite raper" argument where a non-op MtF by some reason would rape women if the MtF is legaly a woman but by some utterly strange reason would not rape women if the same Mtf person would legaly be a man...

All those threatful situations where a birth certificate has saved a trans woman from trouble should never have happened in the first place. The goal there must surely be to extinguish transphobia, not to circumvent it. (I'm absolutely not saying that people should not be stealth, that must be evereyones own decision, but society should allow trans people to live openly without marginalisation and violence).
Anything Can Happen.
Considering that this is still open to appeal, which it will certainly happen once mainstream media learns of this and shares it. The province will collapse as they did a few years ago on the new school inclusive sex learning. Remember those McTwityit posters that are still being used?

I expect also in an appeal you will see possible fed lawyers and other provinces lawyers interviening against the decision as they all have an interest in this ruling. Also note that because there isn't a created protocol, if they do not appeal I believe they will ask , and receive, an extension to implement a through protocol.

Also rest assured they will seek out any other government policy that allows for a no surgery requirement. The most known about one being that of the U.K. which you don't want to see become entrenched here.

Anything can happen in that 180 days.
Something not quite right here...
As a gay transman I would consider this to be wonderful, yet I am concerned that the mainstream media has not covered this - neither is the decision on the Ontario HRT website, although the rest of the days decisions are. Finally, no comment from the lawyers involved.
I have mad this statement so some may understand
I do understand it i went through it yes it is sad yes it is good for ones that cannot have srs. I also get where does gender even fit in any more. I do not know maybe i am wrong or maybe i am selfish yes i did see this as a attack on my gender marker before reading the full court transcript. This marker kept me safe many many times, am i wrong to wanting to feel safe that birth certificat gave me that its not like i have my goverment on my side protecting me i would be so happey for this if there was a bill in place right now that kept me safe. Am i wrong for feeling this . do you know what it is like to be so badley beeten do not attack me for wanting to be safe its not hate it is survival safty needs come first
who I am inside
I am so happy that finally what I feel inside has nothing to do with what I show outside. To be allowed to be myself with out the black-mail of SRS,is a giant step in right direction for me to be myself, and not judged by the ,so called,book cover,but rather by the pages inside and what is written on them, Thank you, but ,at the same time,is it not a shame to have to have a Gov. tell you who you are,inside, as we know who we are, humans, plain and simple , not a label...
Couple of points
Just to clarify, I have no knowledge of what the government/ministry is considering in terms of criteria. The guarantor option was one of two rough ideas mentioned in the decision but the vice-chair was clear that there were no specific criteria that the ministry had to adopt, only that any criteria that they do adopt will have to reflect the principles of the decision.

The commitment that is required to advance a human rights complaint and see it through to a hearing before the tribunal is monumental, and the stress, time commitment, and financial investment (for both complainants and lawyers) is significant. Consequently, profound kudos are owed to the complainant, XY, and to her excellent counsel, Susan Ursel of Ursel Phillips Fellows Hopkinson LLP, for their dedication, skill and perseverance in bringing this case to the tribunal and obtaining this momentous result for our communities!
gender is not body parts
Personally I think this is a huge step forward.I have lived as a woman all my life and have always belived gender is how you think,feel,express yourself.Its the make up of your mind not whats between your legs.If you live as a woman and present yourself as a woman,having identification that states otherwise ,to me,is more dangerous and uncomfortable..Just my opinion...Christine
I live down in the USA, but in our happy state of Vermont we recently created a legislative process for exactly this process. Who in Ontario is working on creating protocol? I'd like to get them in touch with my local legislators, who I have worked with on some of these issues here. We have designed a system that works well, I think (very new, so there's no data about it yet).
Basically, you'd need to provide a statement from a doctor (or therapist, I think) that you are receiving or have received any care related to gender transition. This is VERY open ended as written in Vermont and says something like (paraphrased) "Hormone therapy, surgery, or any other appropriate treatment for that individual as determined between them and their care provider." So that could be like, talk therapy or something potentially.
It's not perfect, but with adequate/universal healthcare access, then in theory it would work well. A system like this disarms the awful trans panic type arguments by making a qualified care professional the third party witness.

SO ANYWAY tldr, who is working on changing the policies in Ontario? Anyone know? Any lobbyists or advisors working on this even? I'd like to put them in touch with a few particular folks from the VT state legislature (if they aren't already).


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