Transgender persons are recognized in medicine as those who are born with the physical attributes of one gender, but who know at a deep level that their physical bodies do not match their inner gender. Federal and provincial human rights laws often protect transgender persons from discrimination in the areas of employment, services customarily available to the public, public notices, tenancy and membership in trade unions on the grounds of “gender”, “identity” or “disability”. For example, transgender people are protected from discrimination and harassment in employment, and in any terms and conditions of employment. Employers have a duty to accommodate a trans-identified person who needs time off work for medical reasons, such as surgery or recovery from surgery. Employers also have a duty to accommodate trans-identified persons who return to work, presenting in their “new” gender. This is the transgender person’s inner identity. There is currently a case before the Alberta Human Rights Commission involving a transgender person’s claim of employment discrimination (see: Greater St. Alberta Roman Catholic Separate School District No. 734 v Buterman, 2014 ABQB 14).
In addition to human rights decisions, there is an interesting Canadian Charter of Rights decision involving a transgender individual and the government. In CF v Alberta (Vital Statistics), 2014 ABQB 237, CF was born physically male, but believed at a deep level that she was female even as a child. Employers have a duty to accommodate a trans-identified person who needs time off work for medical reasons, such as surgery or recovery from surgery. Employers also have a duty to accommodate trans-identified persons who return to work, presenting in their “new” gender. Once an adult, CF transitioned to living as a female, and legally changed her name in June 2011 to reflect her identity as a female. Alberta’s Director of Vital Statistics (“Director”) issued a birth certificate with CF’s new name, but the certificate still reported her sex as “male”. The Director interpreted the applicable statute, The Vital Statistics Act, RSA 2000, c V-4 (“VSA”) (repealed and replaced by SA 2007, c-4.1), as requiring transgender people to have genital reconstructive surgery in order to have the sex indicator on their birth certificate changed. CF was “content with the anatomical sex structure she was born with” and applied under the VSA to ask the Director to correct the error on her birth certificate. CF included documentation that attested to her lived identity as female. Nevertheless, the Director rejected CF’s application in March 2012, because at the time of birth, the sex indicator was based on the evidence she was male, and thus there was no error as required by the legislation. The VSA required that in order to change the sex on CF’s birth certificate, genital surgery would be required.
CF argued that the Director’s decision denied her rights under Charter section 7 (life, liberty and security of the person) and section 15(1) (equality). CF argued that the VSA and the Director’s interpretation of it “deprived her of liberty and security of the person by making it impossible for her to have an accurate birth certificate unless she submitted to unwanted and potentially dangerous surgery”. While this argument was not abandoned formally, it was not addressed in the written or oral submissions made at the hearing. The case focused on the Charter section 15(1) “equality” issues.
CF argued under Charter section 15(1) that the VSA and the Director’s interpretation of it discriminated against transgender people, who are “forced to have birth registrations that do not reflect their lived sex unless they submit to Genital Surgery” (para 20, emphasis original). CF argued that this amounted to discrimination on the combined grounds of sex, mental or physical disability, gender identity and trans status.
The Director argued that the VSA provided a benefit to a disadvantaged group (i.e., transgender persons who have undergone genital surgery) and thus was an ameliorative program under Charter section 15(2). This section permits governments to establish ameliorative programs that are targeted at disadvantaged groups and thereby protects these programs from claims of “reverse discrimination”. Justice B.R. Burrows dismissed this argument, holding that the accommodation provided by the VSA for transgender persons who have genital surgery is not relevant to those who do not have surgery. The discrimination actually results from the VSA not recognizing the fact that CF has transitioned and is now female.
In discussing whether there was discrimination under Charter section 15(1), Justice Burrows followed a two step analysis that was set out in R v Kapp, 2008 SCC 41 (para 17):
(1) Does the law create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
In analyzing step one of Kapp, Justice Burrows relied on an Ontario decision that occurred before Ontario amended its human rights legislation, (Human Rights Code, RSO 1990, c H.19) to include “gender identity” as a protected ground (amended SO 2012, c7, s1). In XY v Ontario (Minister of Government and Consumer Services), 2012 HRTO 726, the Ontario government conceded that their existing law that required surgery drew a distinction based on disability, sex, or both grounds. … courts and tribunals are starting to recognize the disadvantage faced by transgender persons and are willing to provide appropriate remedies for the human rights violations experienced by them. The Ontario Human Rights Tribunal concluded that transgender persons were covered under its Human Rights Code, RSO 1990, c H.19, under either the basis of sex or disability. Justice Burrows noted that while there had been no concession by the Alberta government in the CF case, he had no difficulty holding that the VSA birth registration system treated transgender persons differently than non-transgender persons, and differently than those transgender persons who were willing to have genital surgery. While Justice Borrows did not identify gender identity or transgender status as an analogous ground under Charter section 15(1), he did hold that transgender persons in CF’s position, who wish to have their birth certificates reflect their true identity without having surgery, are treated differently and disadvantageously under the VSA.
In analyzing step two of Kapp, Justice Burrows relied on the affidavit evidence from psychiatrist Dr. Dan Karasic, which established the “disadvantage, vulnerability, stereotyping suffered by transgendered persons”. Dr. Karasic also provided evidence indicating that the vast majority of transgender persons do not have surgery due to access difficulties and personal preferences. CF provided evidence of her treatment at the hands of the government—described by Justice Borrows as “insensitive at best”. Justice Burrows noted that the response of the Director sends the message to transgender persons that the prejudice they experience is insignificant and that they should ‘come out’ as members of a third sex….and expect to be accepted without question” . Justice Burrows found that the VSA birth registration regime thus amounted to discrimination contrary to Charter section 15(1). He held that to the extent that the VSA did not permit CF to obtain a birth certificate that contained her lived sex, it was inconsistent with the Charter and was of no force or effect. He also ordered the Director to issue CF a birth certificate recording her sex as female within 30 days of the judgment (using Charter section 24(1)).
The Alberta government introduced an amendment to the VSA on May 5, 2014, which allows the Registrar to amend a birth certificate under certain circumstances even if there was no error (as was required previously).
These cases indicate that courts and tribunals are starting to recognize the disadvantage faced by transgender persons and are willing to provide appropriate remedies for the human rights violations experienced by them.
For a more in depth discussion of the CF case, please see: Jennifer Koshan “A Vital Judgment: Upholding Transgendered Rights in Alberta” ABlawg.ca, May 7, 2014. I have relied on some of this blog article for the discussion of the CF case.
About Linda McKay-Panos
