The ArQuives Digital Exhibitions

The ArQuives's Digital Exhibitions

Explore highlights from The ArQuives’s collections of personal and organizational papers, artifacts, ephemera and more!

Legal Recognition for "Other" Gender Identities in Canada

The "other" in the title of this section refers to all of the "other" gender identities that surround these ideas, some of which are explored in "Language Evolves: Other Terms and Identities." Most of the resources in this exhibition focus on one or more of these "other" gender identities, as there is no single accepted term for those who are outside the binary.

The social categorization of bodies and people is not politically neutral, and legal recognition for "other" gender identities within Canada has been a long process, and it is one that we are still engaged in. There is still a lot of work to do to ensure that the rights of people with gender identities outside the binary are understood, represented, and protected within Canadian law.

As Susan Stryker notes, gender is historical, in that it changes through time, and is contingent upon the cultural understanding of a given community. While "sex" has historically been understood as a categorical determination based on an external examination of one's genitals and more recently as determined by chromosomal arrangements, today it is often understood to be synonymous with "gender," in that it too is relational, and how one's sex is assigned at birth can be as arbitrary as one's gender.

In a 2003 article for Transgender Tapestry, York University professor Dr Miqqi Alicia Gilbert proposed the term "bigenderism" to refer to the "assumption that there are two and only two genders, and that they match carefully with the only two sexes." While this term has not gained widespread use in the intervening years, there is a growing recognition that the potential for gender identity and expression is broader than the two narrowly defined genders previously assumed.

Since 2005, various attempts had been made to offer legal protections to trans* and genderqueer people in Canada; however, it was with the 2016 introduction of Bill C-16, An Act to Amend the Canadian Human Rights Code and the Criminal Code, that explicit protections for gender identity and gender expression succeeded. On 19 June 2017, the bill received royal assent and legal protection for "gender identity" and "gender expression" were enshrined in the Canadian Human Rights Act and the Criminal Code. Some provinces, such as British Columbia and Ontario, protected these rights slightly earlier, but since the federal change was enacted other jurisdictions have followed.

While some provinces and territories explicitly include nonbinary gender identities within protected categories identified in acts and policy documents, most have not. Instead, they have adopted more generalized protections for "gender identity" and most for "gender expression," as well. However, these terms are rarely defined, and instead are deliberately left open to interpretation.

Below you will find a roughly chronological account of the actions taken towards legal recognition and protections for nonbinary gender identities within Canada, including international resolutions that have helped shaped how Canadians understand these identities, and our approaches towards inclusion.

International recognition

International Bill of Gender Rights

In 1991, JoAnn Roberts in Philadelphia and Sharon Ann Stuart in Cooperstown, New York each independently created a Gender Bill of Rights. These were combined and expanded upon in the International Bill of Gender Rights (IBGR), and it was presented it at the Second Annual International Conference on Transgender Law and Employment Policy in 1993. The document has been revised and amended several times since then, but has been more or less static since the mid-1990s.

While the IBGR was originally created to secure trans* rights as conceived of in terms of a gender binary, it also expressed a call for self-determination that could be taken up by nonbinary people. From its earliest incarnations it called for the "right to define gender identity" and "the right to free expression of gender identity" among its tenets.

The International Bill of Gender Rights has been used as a reference point for the Ontario Human Rights Commission.

United Nations Human Rights Council

In 2011, the United Nations' Human Rights Council published a report that explored sexuality and gender identity based violence. This report also took into account nonbinary gender identities, including intersex people. It notes that some countries have made it easier for people to legally identify as "a gender other than male or female," though these protections are not as widespread as they could be.

A 2015 report noted the progress that had been made on various fronts, including within Canada, but also noted that there was still a lot of work to be done. This report also raised special concerns regarding the safety of "LGBT and gender non-conforming youth." It notes that various committees within the United Nations have called to put an end to "medically unnecessary surgery and treatment in an attempt to force their physical appearance to align with binary sex stereotypes" for intersex children.

The findings in these reports centre on the violence done to people who do not conform to social expectations of gender identity and expression and the need to adopt solutions to protect gender minorities. It also notes the gradual progress being made, and underscores the need for this to continue to ensure the safety and security of a diverse range of gender identities and expressions.

Equal Rights Coalition

The Equal Rights Coalition (ERC) was founded in 2016, with leadership from Uruguay and the Netherlands, and is now comprised of 40 member states, including Canada. As of June 2017, the ERC is co-chaired by Canada and Chile; the term for which will end June 2019.

Among its founding principles, the ERC seeks to advance human rights and promote inclusion "for, all persons, regardless of sexual orientation, gender identity or expression, and sex characteristics."

Recognition within Canada

Canadian Human Rights Act and the Criminal Code

In 2017, an amendment to the Canadian Human Rights Act was passed that added "gender identity and gender expression" as categories explicitly protected from discrimination.

A number of reactionary claims have been made about what this could mean, but these are clearly and effectively debunked by Brenda Cossman in an article for the University of Toronto Law Journal. As Cossman states, these protections do not constitute a new offence. In regards to hate crimes she explains that "the commission of an existing offence in the Criminal Code, such as murder, assault, or sexual assault, could be given a harsher sentence if it was motivated by hatred."

Other notable moments

On 28 November 2017, Prime Minister Justin Trudeau apologized for the Government of "Canada’s role in the systemic oppression, criminalization, and violence against the lesbian, gay, bisexual, transgender, queer, and two-spirit communities" in the House of Commons.

Trudeau recognized injustices done to specific communities and named acts of persecution undertaken by the federal government. Trudeau's wide-reaching and long overdue apology was welcomed by many communities, including those who advocated for this apology.

Recognition within Canada's provinces and territories

Ontario

In 1998, Ottawa-based trans woman Michelle Renee prepared a "Charter of Transgendered Rights and Freedoms," which was later retitled the "Charter of Transgender Rights and Freedoms," and this, along with the formation of the Canadian Task Force for Transgender Law Reform, began to gain traction. This document was not published, but it is referenced in a 1999 government paper by the Ontario Human Rights Commission (OHRC) titled "Toward a Commission Policy on Gender Identity."

The OHRC gathered input from the trans* community, and published a paper that explored issues of gender identity and gender expression. It focused primarily on the trans* community as expressed within a binary, but in a nod to inclusivity, the OHRC also noted that it attempted to represent the concerns of those "others who blur traditional gender lines."

In 2000, the OHRC introduced a policy that would prevent discrimination and harassment due to gender identity. This policy formally recognized protection for people whose "identity or core identity may differ in part or in whole from their birth assigned sex," though it focused primarily on those who identified within the gender binary.

Trans* activists, such as Anna Travers' work with the Rainbow Health Organization played an important role in accessible health care that also had a large impact on genderqueer and "as well as others who did not desire a binary or legible transition."

In 2012, gender identity and gender expression were added as protected categories from discrimination in the Ontario Human Rights Code. The 2014 "Policy on Preventing Discrimination Because of Gender Identity and Expression" expanded this further to specifically include people who are gender nonconforming, gender variant, genderqueer, and Two Spirit.

However, it wasn't until 2016 that Service Ontario gave people the option not to display sex or gender information on health cards (there is no other gender neutral option), and it took until 2017 that Ontario driver's licenses could display an "X" instead of "F" or "M."

Corrections to birth certificates require several forms, as well as a signed letter from a practicing physician or psychologist, which creates an additional barrier for many people. Further, after 30 April 2019, a fee will be charged for those who want to make this change.

Other notable moments

In 2014, the Pride flag was raised for the first time at Queen's Park, and 2016 was the first time the trans flag was raised.

Northwest Territories

Eagle Canada Human Rights Trust cites the Northwest Territories Human Rights Act as the first jurisdiction within Canada to include gender identity as a protected category. Indeed, in 2004, the Northwest Territories Human Rights Commission's first Human Rights Act includes gender identity as a protected identity category.

However, the language surrounding these identities is gendered and remains so today. In using "his or her" in place of gender inclusive language, the Act actually serves to reinforce the gender binary.

A 2015 brochure titled "Let's Talk About Gender Identity" was put out by the Northwest Territories Human Rights Commission that defines gender identity as "a person’s inner sense of being male or female," which, of course excludes those who do not identify within this gender binary.

The Government of the Northwest Territories amended the Vital Statistics Act in 2017 to allow changes to "the sex designation on a birth certificate to better reflect gender identity." This includes the option for an "X," as well as "F" or "M." Later in 2017 this was also extended to driver's licenses.

While "gender expression" is not explicitly stated as a protected category in the Northwest Territories Human Rights Act, protections are enshrined in the Canadian Human Rights Act and the Criminal Code, which take precedence.

At present, there are no means to change one's gender marker on one's health card beyond the binary of "female" or "male."

Manitoba

In June 2012, a new version of the Manitoba Human Rights Code enshrined protections for gender identity. Policy guidelines released by the Manitoba Human Rights Commission note that gender identity "can include a broader spectrum of identities" beyond woman or man. (However, it is worth noting that some have critiqued the idea of the "spectrum" itself, noting that it is bound within heterosexual cisgender norms, and those who occupy positions outside this spectrum remain unacknowledged.)

While "gender expression" is not explicitly stated as a protected category in the Manitoba Human Rights Code, protections are enshrined in the Canadian Human Rights Act and the Criminal Code, which take precedence.

The Manitoba Vital Statistics Agency does not permit sex or gender designations other than "female" or "male" to appear on documents it issues.

Newfoundland and Labrador

In 2013, the Newfoundland and Labrador Human Rights Act was updated to explicitly prohibit discrimination on the bounds of gender identity or gender expression.

Service Newfoundland and Labrador changed their policy on binary gender markers on birth certificates in late 2017, and an amendment to the Vital Statistics Act now permits gender neutral designations. However, this is limited to residents who are 16 years of age or older.The "X" option is also available for use with the Medical Care Plan.

In order to change one's sex designation with Service Newfoundland and Labrador, all that is required is a form be filled in and sent to the Vital Statistics Division. There is no fee to make this change, though there is to receive new copy of one's birth certificate.

Alberta

In December 2015, the Government of Alberta amended the Alberta Human Rights Act to include protections for gender identity and gender expression. While there is no legal definition of either term, the amendment notes that "a person may have a sense of being a woman, a man, both, or neither."

To change the sex designation to "X" on one's birth certificate, one must fill in several forms, sign an affidavit and have it notarized by a Notary Public or Commissioner for Oaths, return it to Alberta Vital Statistics, and pay a fee.

To change the sex designation to "X" on one's driver's license, one must first obtain a corrected birth certificate, visit a Service Alberta registry agent in person, confirm changes, and pay a fee.

At present there are no third gender options available with the Alberta Health Care Insurance Plan. However, in 2019 Alberta Health Services will launch provincial advisory council that will focus on sexual orientation, gender identity, and gender expression in order to assess the barriers and needs of gender and sexual minorities.

British Columbia

In 2016, Bill 27 introduced "gender identity and expression" as protected categories within the British Columbia Human Rights Code.

As of 1 November 2018, a gender marker of "X" is available for birth certificates driver's licenses, and services cards. To do so, the applicant must fill out several forms, including the "Physician’s or Psychologist’s Confirmation of Change of Gender Designation," and pay a fee.

However, a gender marker of "X" is not available for the Enhanced Driver’s Licence and the Enhanced Identification Card at this time.

Prince Edward Island

The Prince Edward Island Human Rights Commision added gender expression and gender identity as protected identity categories to the Prince Edward Island Human Rights Act in 2016.

A fact sheet put out by the Commission includes language that speaks directly to nonbinary identities, noting that "Some people do not identify as either a man or a woman. Others identify as both man and woman. People may identify themselves as two-spirited, gender queer, gender fluid, or non-binary."

As of 4 December 2018, people can choose to have a blank sex designation (coded as "gender not listed") or "X" (to denote "prefer not to say"). Perplexingly, the Government of Prince Edward Island refers to this as "two new non-binary gender options," though the language it uses in no way affirms nonbinary gender identities.

At present, there are no means to change one's gender marker on one's birth certificate or health card beyond the binary of "female" or "male."

Quebec

In 2016, the Quebec Charter of Human Rights and Freedoms added "gender identity or expression" to its list of protected identity categories.

At present, there are no means to change one's gender marker on one's birth certificate, health card, or driver's license beyond the binary of "female" or "male."

Bizarrely, the "Application to Change the Sex Designation of a Person Under 14 Years of Age" and "Application to Change the Sex Designation of a Person 18 Years of Age and Over" both declare that "the masculine gender is used without discrimination and solely to simplify the text," which is astonishing to see in 2019. The form isn't merely bigendered, it's monogendered male. (Though it offers "M/H" or "F/F" options within the form itself.)

Nova Scotia

As of 2016, the Nova Scotia Human Rights Act lists both gender identity and gender expression as prohibited grounds for discrimination.

Service Nova Scotia introduced the option of changing one's birth certificate gender marker to "X" in September 2018. However, when children are born, their birth certificate must say "M" or "F," even if they are intersex.

In October 2018, the Sexual Orientation and Gender Identity Protection Act received royal assent, which made it illegal for provincial funds to be used in coercive actions to modify a person's gender identity or the expression of their gender.

In order to change one's sex designation on must fill in forms, obtain a signed written statement from a healthcare professional or social worker, submit the forms and pay a fee to Vital Statistics at Services Nova Scotia.

At present, there are no means to change one's gender marker on one's health card or driver's license beyond the binary of "female" or "male."

New Brunswick

In May 2017, the New Brunswick Human Rights Commission added "gender identity and expression" to the category of protected identities on the bounds of discrimination.

Additionally, a Guideline on Gender Identity or Expression was published by the Commission to help people understand their rights and responsibilities. This document also recommends that organizations not collect information about gender identity, but when they do, suggests they "provide a broader range of gender options in addition to the binary male/female designations to accommodate those whose gender is not accurately characterized as either male or female."

Despite this, at present, there is no means to change one's gender marker with Vital Statistics, Service New Brunswick beyond the binary of "female" or "male."

Saskatchewan

In 2017, the Saskatchewan Human Rights Commission amended the Saskatchewan Human Rights Code to include protections on the basis of gender identity. Interestingly, the Code makes a point of equating sex and gender.

While "gender expression" is not explicitly stated as a protected category in the Saskatchewan Human Rights Code, protections are enshrined in the Canadian Human Rights Act and the Criminal Code, which take precedence.

At present, there are no means to change one's gender marker on one's birth certificate, health card, or driver's license beyond the binary of "female" or "male." However, those born in Saskatchewan can request to have the gender marker removed from their birth certificate.

Nunavut

Though the Human Rights Act currently listed on the Nunavut Human Rights Tribunal is dated, as of 2017 the Nunavut's Human Rights Act includes protections for gender identity and gender expression. However, the language used within the Act is gendered.

At present, there are no means to change one's gender marker on one's birth certificate, health card, or driver's license beyond the binary of "female" or "male."

Yukon

As of 2017, the Human Rights Act put out by the Yukon Human Rights Commission includes gender identity and gender expression among its protected categories. However, as of this date, the Government of Yukon website lists an outdated version of act which does not include these protections.

At present, there are no means to change one's gender marker on one's birth certificate, health card, or driver's license beyond the binary of "female" or "male."

The future

While all provinces and territories have added gender identity as a protected category, and most have included protections for gender expression in their human rights codes (only Manitoba, Northwest Territories, and Saskatchewan, have not), both these remain protected categories under the Canadian Human Rights Act and the Criminal Code, and so are implicitly protected throughout Canada.

For more on how gender identity and gender expression are protected within Canadian law, see Overview of Human Rights Codes by Province and Territory in Canada put out by the Canadian Centre for Diversity and Inclusion.

Language in the various provincial and territorial human rights codes and acts remains gendered and thus exclusionary. Equal access to gender neutral options for legal documents remains unattainable for most Canadians, but things are changing, slowly, but surely.

This information is current as of March 2019.

Legal Recognition for "Other" Gender Identities in Canada

Essay with full citations.

"Legal Recognition for 'Other' Gender Identities in Canada" by Nico Mara-McKay, with full citations.

Legal Recognition