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July 25, 2012
Alexandra Schmidt
Senior Policy Advisor
ServiceOntario, Ministry of Government Services
E: Alexandra.Schmidt@ontario.ca
Dear Ms Schmidt:
We have received a copy of your Consultation Document dated July 3, 2012. We are pleased to note that a key objective of the consultation is to develop revised criteria that are in accordance with the Human Rights Tribunal of Ontario’s decision dated April 11, 2012 in XY v. Ontario (Government and Consumer Services).
We trust that this submission is of assistance in your development of revised criteria. We address the questions set out in your Consultation Document, and make additional observations.
1. Suggested criteria
As noted in the XY decision, the Ministry of Transportation’s criteria for changing the sex designation on a driver’s licence require a letter from a licensed physician stating that the person has been examined and that, in the physician’s opinion, the change of sex designation would be appropriate. This approach is a less discriminatory process than the one under the Vital Statistics Act considered in the XY decision. In our experience, it appears that most transgender people have consulted physicians, and obtaining such a physician’s letter should not prove to be too onerous. We suggest that such a physician’s letter would be a sufficient criterion.
However, we also suggest that such a physician’s letter should not be a necessary criterion. As society’s awareness and understanding of gender identity develops, the Commission’s position is that people should be recognized based on their lived and internally-felt gender identity. We note that the World Professional Association for Transgender Health “strongly urges the de-psychopathologisation of gender variance worldwide” (press release, May 26, 2010).
In the circumstances, we recommend that you also consider other criteria that are more respectful, less intrusive and less medicalized than the provision of a physician’s letter. For example, there may be many persons – psychologists, social workers, nurses, school or college or university officials, therapists, employers, members of one’s family, faith community or others – who could confirm that a person is transgender, or is living publicly in the gender that is consistent with the change that they are requesting to their birth registration. It is the social presentation of one’s felt gender, rather than a particular physical or sexual feature, genetic makeup or medical history that is at issue when considering a change to the sex designation on a document. Based on our work with members of the trans community, this expansion of criteria may be seen by many as more appropriate.
2. Should the criteria be different for people under the age of eighteen?
From the Commission’s perspective, the criteria for people under the age of eighteen should be no more stringent than the criteria for adults. We are aware of more teenagers now expressing their gender identity. We also note that the Australian Human Rights Commission has recommended that the special needs of children and young people who wish to amend their documents should be considered. See Recommendation 4 in the 2009 Sex and Gender Identity Project concluding paper at: http://www.hreoc.gov.au/genderdiversity/sex_files2009.html
3. Who should be qualified to corroborate a change of sex designation?
We note that the Tribunal in XY observed that corroboration of changes to vital event data is a generally applicable requirement. We agree. In our view, this third question melds with your first question, and we have set out above our views as to the consideration of acceptable guarantors to support a change in sex designation.
4. Should a person be permitted to change the sex designation on their birth registration more than once?
From our experience, such occasions will be rare. However, from a human rights perspective, there should be no prohibition against changing the sex designation on one’s birth registration more than once.
Additional considerations
A broader question arises as to the utility of identifying “sex” on one’s birth certificate. As Ms Hartman (as Deputy Registrar General for Ontario) testified in the XY hearing, a short form birth certificate, also called a “wallet” birth certificate, is not a form of identification. It is not possible to determine whether a person presenting a “wallet” birth certificate is the person named on the certificate merely by looking at the document. Moreover, the “wallet” birth certificate contains an extraction of some but not all of the data contained in the birth registration.
In our view, serious consideration should be given to eliminating the recording of the “sex” designation from the birth registration on one’s “wallet” birth certificate.
Alternatively, if it is found necessary to reflect one’s “sex” from the birth registration on a “wallet” birth certificate, it could be contained in coded form in the birth certificate number, rather than being printed on the face of the document.
Addressing these considerations would make the Ministry’s services less onerous, more respectful of transgender people, more transparent to all, and more compliant with the Human Rights Code.
We welcome the opportunity to work further with you in the development of revised criteria or eliminating sex designation on a birth certificate. Jacquelin Pegg, Inquiry Analyst with the Commission, has been assigned this file. She may be reached at (416) 326-9501.
Sincerely,
Barbara Hall, B.A., LL.B., Ph.D. (hon.)
Chief Commissioner