Issues
(1) The Ontario Human Rights Commission
The Ontario Human Rights Commission is a central figure in the advancement of human rights in Ontario. The Commission is currently developing, implementing and operationalising policies and procedures related to transgendered issues.
At the time of writing, no human rights commission in Canada had an approved public policy on gender identity, although the British Columbia Human Rights Commission has formally proposed an amendment to include ‘gender identity’ as a protected ground. This protection would extend to transsexuals, intersexed individuals, cross-dressers, and others who are transgendered.
Other Commissions have made use of a variety of options, some of which are not possible under the Ontario Code. Manitoba, for example, has a ground of ‘other’ which is used to accept complaints from transgendered persons. In 1982, the Quebec Commission used the ground of ‘civil status’ and more recently has dealt with a complaint based on both civil status and sex.[53] The Canadian Human Rights Commission took complaints on the ground of disability or perceived disability until 1992 and now uses the ground of ‘sex.’ [54]
The recent Quebec decision, M.L. et Commission des droits de la personne, draws an analogy between decisions that extended the ground of ‘sex’ to include pregnancy in the late 1980s to transgenderism. The Tribunal states that:
[S]ex does not include just the state of a person but also the very process of the unification and transformation that make up transsexualism. As we have already seen, the psychological and psychosocial components of sex in regard to transsexualism appear to be in total conflict with other genetic, hormonal and anatomical elements, which, at birth allow a person to be distinguished as indisputably belonging to one sex.
Drawing upon the aforementioned principles of interpretation of human rights, especially the inherent dignity of the human being, we can say that a transsexual person who is a victim of discrimination based on his being a transsexual may benefit from provisions against discrimination based on sex, once his transformations have been completed or¼once his identification is perfectly unified.
What is more, discrimination, even based on the process of the unification of disparate and contradictory sexual criteria, may also constitute sex-based discrimination while sex is at its most vaguely defined¼
Referring, for the purpose of analogy, once again to the question posed by Dickson C.J. in Brooks, in respect to pregnancy¼we can affirm that it is not clear how discrimination based on transsexualism or on the process of transsexualism could ultimately be anything other than sex based.[55]
In April 1996, the European Court of Justice confirmed that it is against European law to discriminate against a transsexual person in employment.[56] This case originated in Britain with an individual who was transitioning and was terminated just before the completion of her sex reassignment surgery. The court held that the while the law before them only uses the term ‘sex’ this should be read to include transgender and therefore precludes dismissal of a transsexual for a reason related to gender reassignment.
Several consultees expressed a need for a separate ground of protection because its absence implies ‘permission’ to discriminate against transgendered individuals. Some people in the consultation process expressed concern or scepticism about the addition of a new ground as a means to protect transgendered people from discrimination. The definition of gender identity should be broad and all encompassing, to include potential incidences of discrimination against all transgendered persons including, for example, discrimination against cross-dressers.
By adding the ground ‘gender identity’ to the Code, there would be no doubt legally or politically that transgendered people have the same protections as everyone else. Unfortunately, using the ground of ‘sex’, while it does not properly convey the meaning of ‘gender identity’, is the only reasonable alternative available at present until such time as the legislature sees fit to amend the Code.
In British Columbia, the consultation report that included the recommendation for a protected ground of ‘gender identity’ quotes community representative, Dr. R. Stevenson, of the Centre for Sexuality, Gender Identity and Reproductive Health at the Vancouver Hospital, who stated:
There is little doubt that many of our patients experience discrimination and harassment, whether it be within the context of employment, housing or other fundamental aspects of their lives¼I am aware that existing grounds (disability, sex, sexual orientation) may not be applicable in all cases. Therefore, it follows that adding a new ground for protection such as gender identity would better serve the needs of our patients.
The adoption of gender identity as a prohibited ground will not silence the attacks, but it will blunt them in much the same way as has happened with sexual orientation.[57]
(2) Education
Misunderstanding and lack of awareness of the issues faced by transgendered people occur in virtually every institution, agency, and sector. The public has little understanding of the distinctions between transsexuals, cross-dressers, and female impersonators. There is also a lack of understanding of the distinctions between gender identity and sexual orientation. Within the gay and lesbian community, with whom transgendered people have frequently been identified, there are also deep political schisms in appreciating the distinct issues of transgendered people.
Most professionals, including medical professionals, have little expertise in the area of gender identity. The media also portrays transgendered people in a negative light. Consultations revealed many incidents of mistreatment that show a lack of understanding of the issues for transgendered people. These ranged from not addressing the individual in the gender they present, to threats and harassment, to concerns around losing employment or housing, to discriminatory treatment by officials.
Lack of awareness leads to problems such as accessing services, transitioning in the workplace, maintaining or securing housing, personal security and harassment. It may also be linked to the marginalisation of transgendered people and to the social problems faced by transgendered individuals and youth in coming to terms with their identity. Marginalisation may in turn lead to problems such as homelessness and being forced, because of circumstances, to work in the sex trade in order to access hormones for use in self-treatment.
Broad-based education on the issues faced by transgendered people is critical to the long-term prevention of human rights violations against them. Many ‘gender myths’ perpetuate stereotypes and result in discrimination against transgendered people. Common gender myths equate transgendered identity with sexual orientation or as viewing transgendered people as unbalanced and mentally unstable. Transgendered people also object to the failure to distinguish between sex and gender and to the presumption that that changing one’s gender identity is a fad or a whim and not a medical necessity. These myths in combination with media treatment shed a sensationalist light on the lives of transgendered people.
Several individuals interviewed in the transgendered community expressed the importance of public education and professional education. This could be undertaken in conjunction with the Commission’s current public education and communications strategy by promoting positive examples in relation to gender identity. This may also be achieved by reviewing the possibility of amending the Policy on Sexual Harassment and Inappropriate Gender-Based Comment and Conduct as well as a ‘plain-language’ version of that policy to reflect an expanded definition of sex to include gender identity and transgendered persons.
(3) Medicalisation of Identity
To what degree is identification based on gender a reasonable requirement? Application forms, identity cards, and government forms frequently stipulate gender identity. However, the Canadian Task Force for Transgendered Law Reform has stated that:
The current practice of demanding that an individual declare their gender on public and private requests for services or other forms and applications is a subtle form of harassment that affects all Canadians. There is no need for gender to be declared on a driver’s license for example. Where gender must be declared all Canadians should have a third neutral option, which allows them to express that they do not wish to be identified as either female or male.[58]
The Commission can play a role in encouraging a non-medical focus and a system that balances legitimate institutional identification needs with the individual’s freedom to self-identify. For a pre-operative transsexual, a transgenderist, or an intersexed person, the requirement that such identity must be attested to or otherwise supported by medical opinion creates a particular disadvantage. Changing gender designation on documentation has significance impact because recognition in law is often an indication of - or at least a precursor to - social acceptance. Corrections to gender identity on documentation can help a transgendered person to live more congruently in a society that relies heavily on personal data collection that frequently refers to gender.[59]
For example, in Ontario the Vital Statistics Act[60] states
s. 36.(1) Where the anatomical sex structure of a person is changed to a sex other than that which appears on the registration of birth, the person may apply to the Registrar General to have the designation of sex on the registration of birth changed so that the designation will be consistent with the results of the transsexual surgery.
(2) An application made under ss. (1) shall be accompanied by,
(a) a certificate signed by a medical practitioner legally qualified to practise medicine in the jurisdiction in which the transsexual surgery was performed upon the applicant, certifying that,
(i) he or she performed transsexual surgery on the applicant,
(ii) as result of the transsexual surgery, the designation of sex of the applicant should be changed on the registration of birth of the applicant;
(b) a certificate of a medical practitioner who do did not perform the transsexual surgery but who is qualified and licensed to practise medicine in Canada certifying that,
(i) he or she has examined the applicant
(ii) the results of the examination substantiate the transsexual surgery was performed upon the applicant, and
(iii) as a result of the transsexual surgery, the description of the sex of the applicant should be changed on the registration of birth of the applicant;
(c) evidence satisfactory to the Registrar General as to the identity of the applicant.
Therefore, to change gender on the birth certificate, a medical letter is necessary to verify that sex reassignment surgery has resulted in the sex of the applicant having changed.
Consultees indicated that the Change of Name Act[61] is another important piece of legislation but that it is inconsistently applied. It is interesting to note that it is easier to change a first name than the last name, even before sex reassignment surgery has occurred. The Ministry of Consumer and Commercial Relations confirms that transgendered individuals can change their first and last names without barriers pertaining to gender.[62]
Administrative rules make it more difficult to change one’s sex on a driver’s licence and a health card unless the birth certificate has already been changed. Transgendered individuals usually require medical documentation in order to have their official identification cards reflect their felt gender.
(3) OHIP coverage
In October 1998, the regulations to the Health Insurance Act[63] were modified, removing coverage for sex reassignment surgery. A clause in the new regulation allows coverage for all people who had completed the program the Gender Identity Clinic at the Clarke Institute of Psychiatry and had been recommended for surgery as of October 1, 1998.
The removal of OHIP coverage is unfortunate. The decision to undergo sex reassignment surgery is not made quickly, nor is the decision of a gender identity clinic to approve the surgery a medical whim. For some individuals sex reassignment surgery is often the last step which allows them to reconcile the incongruence between their felt gender identity and their anatomical sex characteristics. The assessment and decision to undergo sex reassignment surgery is, for some, basic to their life identity and is not a ‘lifestyle’ procedure. It is hoped that, in consultation with medical professionals who work in this very complex field, the Ministry of Health will reconsider its position.
Further examination of OHIP policies may determine whether the current practice and new regulations amount to an infringement of the Code. The effect this practice may give rise to complaints based on gender identity, as interpreted under the ground of sex in the Code. For example, a pre-operative transsexual in the State of Iowa recently won the right to sue the state of Iowa for denying Medicaid benefits for sex reassignment surgery. One of the issues at question in the case is whether or not sex reassignment surgery is a medical necessity. The Court accepted that a question of fact exists as to whether those diagnosed with gender dysphoria, such as the plaintiff, improve with surgery and therefore make sex reassignment surgery a medically necessary treatment (a final judgement has not yet been made in this case).[64]
(4) Services and Facilities
This area was identified as a major source of concern for the consultees. Gender-segregated services and facilities present an obvious and practical problem for transgendered individuals, particularly in;
- (i) washrooms, change rooms and sex-segregated sports or community facilities;
- (ii) sex segregated institutions, such as corrections facilities; and
- (iii) women’s shelter services, for abused male to female transsexuals.
Insurance services, hospital care, funeral services (discussed below in the area on family law), clothing stores and restaurants create barriers for transgendered people. Refusal to provide facilities and services based on gender identity is a prima facie case of discrimination based on sex. Sex segregated facilities may create problems of constructive discrimination and raise accommodation issues.
In relation to services and facilities, both non-transgendered women and transgendered people raise issues of public safety and public decency. There is potentially a safety issue for transgendered people if they use the washroom, facilities, or shelters of their birth assigned sex, which result in them being put at risk of transphobic reactions.
The Code allows for restriction of facilities by sex, but only on the ground of public decency:
s. 20(1) The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency.
Transgendered people should be accepted in the facilities designated for their felt gender. In practice however, they encounter a higher risk of rejection or refusal when they use these facilities.
The definition of ‘public decency’ in a human rights context is an issue that needs clarification in light of section 20(1) of the Code. For example, indecency, indecent exposure, or obscenity as defined in the Canadian Criminal Code[65], would likely constitute a violation of public decency. There is no reason related to public decency why a transsexual woman should be refused access to women's facilities. The use of facilities assigned to a person's felt gender should not result in a violation of the law as it relates to public decency. The use of facilities should not cause a problem unless standards of public decency, as defined above, are breached.
In the case of pre-operative transgendered individuals and transgenderists, there may be instances where an employer or service provider will have a duty to accommodate them, short of undue hardship. For example, this might mean the providing a private cubicle that would use curtains. Accommodation need not be difficult or cause unnecessary distress to others, including non-transgendered people.
(i) Washrooms, Change Rooms, Sports and Community Facilities
Male to female transgendered participants in the consultation reported experiences of having been stopped when using women’s washrooms.
In sports facilities, one participant noted that an arrangement had been reached with the YWCA in Toronto to allow transsexual women (pre- and post-operative) to use the facilities. A participant from a small urban area explained that there has been a long-standing practice for transgenderists and transsexuals to use the women’s change rooms at a local community centre.
Employers sometimes respond to the transition of an individual to their felt gender by segregating facilities all together. For example, one participant in the consultations stated that an employer arranged for the use of a washroom, but in a construction site far removed from the main building. Such measures raise concerns about the dignity and safety of individuals. Complete segregation is often an implicit statement by the employer that they are not supportive of a transsexual in transition. This is in contrast with a supportive employer who shows respect for the dignity of person in transition by educating staff about issues relating to gender identity.
(ii) Sex Segregated Institutions: Corrections Facilities and Hospitals
Institutions such as hospitals and prisons usually have gender-segregated facilities and services. These pose special challenges in adapting and accommodating to the needs of transgendered individuals. Transgendered people may be placed with those of the sex with which they do not identify. In a recent criminal law decision, a judge recommended to prison authorities that the convict, a birth assigned male who was transitioning to a female, serve time in a woman’s prison.[66]
In correctional institutions, the sex segregation of facilities is a concern for transgendered inmates, particularly when the person is pre-operative male to female transsexual. The Ministry of Correctional Services has no written policy to address this type of situation. Pre-operative male to female transsexuals may be subject to solitary confinement not because they are a threat to others but for their own protection. While this is obviously a systemic disadvantage, it is not clear what the alternatives are available in light of some of the safety issues.
The standing practice appears to be to allow post-operative male to female transsexuals to stay in women’s correctional facilities, and in all other situations, to deal with transgendered individuals on a case by case basis. However, unless full sex reassignment surgery has been undertaken, the individual will be placed in a facility according to his or her birth-assigned gender in a segregated area.
A brief from PASAN to the Solicitor General of Canada pointed out that the federal correction system does not provide accommodation to transgendered individuals with respect to dress codes, hormone therapy, access to sex reassignment surgery, increased risk of sexual assault or specialised counselling.[67]
In “Transsexuals within the Prison System: An International Survey of Correctional Services Polices,”[68] the authors reviewed survey findings of the policies of correctional facilities as they relate to transsexual inmates. The study covers Europe, Australia, Canada, and the U.S. Some of the findings include;
- 29 of 64 correctional institutions stated they would maintain existing hormone therapy provided this had been prescribed prior to admission to prison.
- 62 indicated that all inmates must wear the clothing appropriate to the institution regardless of the inmate’s felt gender.
- 53 jurisdictions reported that reassignment surgery would never be considered while 11 reported that in certain specific circumstances, sex reassignment surgery would be permitted. For example, under court order or where the inmate could afford to pay the cost himself or herself.
- The perception of risk of assault and sexual assault against transsexual inmates was mixed, some estimated the risk to be higher while several estimated it was no higher than that faced by non-transsexual inmates.
As noted in this study:
Of the 64 corrections departments that responded to our survey, only 20% reported any kind of formal policy in the housing or treatment of incarcerated transsexuals with another 20% reporting an informal policy. Perhaps in itself this should not be surprising since the incidence of transsexualism within the general population is relatively small. However, given the complexities of dealing with such inmates within a prison population, one would have to wonder at the lack of formal policy planning.
(iii) Access to Women's Shelters for Abused Male to Female Transsexuals
The exclusion of transsexual women from shelters for battered women was another concern raised in the consultation. In 1995, a survey sent to several shelters revealed that there is no consistent manner in the way they deal with transsexual women. Some shelters indicated that they did not know enough about transsexual women to be able to discuss a policy on accepting transsexual women in their shelter. Some shelters took the position that the client must identify as a woman, whereas others indicated that sex reassignment surgery must be complete. Many shelters simply did not respond.[69]
In 1997, Siren Magazine[70], a Toronto lesbian community publication, stated that:
A recent study of women’s shelters in the Toronto area found that, of the shelters that responded to the survey, none had a written policy prohibiting discrimination on the basis of gender identity. The fact that only 5 of 20 shelters that were sent surveys bothered to respond speaks volumes about the importance placed on transsexual/transgender issues.
During consultation, it was noted that many of the transsexual women who require access to shelters are poor. These women are not in a position to afford sex reassignment surgery or to have electrolysis and so may appear male, although they identify as female.
From a human rights perspective, section 11 of the Code, which deals with constructive discrimination, may apply to this situation. Transsexual women present as women and should not be excluded from shelters unless the restrictions are reasonable and bona fide, and cannot be accommodated without causing undue hardship, subject to considerations of cost, outside sources of funding, and health and safety requirements, if any.
Relevant considerations of safety include legitimate concerns raised by shelters about preventing the further traumatization of their clients. These concerns arise because residents have been victims of violence perpetrated by men (some have been repeatedly victimised) and exposing them to pre-operative transsexuals may trigger a traumatising event. However, there may be ways to allocate shelter space that would accommodate battered transsexual women. Types of accommodation measures could include staff education, sensitisation of shelter residents and use of separate rooms.
(5) Employment
This section applies to the social area of employment, but some principles could equally apply to housing and accommodation, services generally, and entering into contracts. Some of the key issues in employment include the following:
(a) Non-Hiring /Dismissal upon Discovery of Identity
Transgendered individuals may lose their jobs during their transitioning period. Except in situations outlined in the Code where gender-based discrimination is allowed, transitioning to one’s felt gender should not be grounds for dismissal from work. Similarly, under the Code customer preference is not a valid factor for refusing to hire, dismissing or not promoting an individual who is transgendered.
In a recent Quebec decision M.L. and Commission des droits de la personne, July 2, 1998, the complainant alleged that her contract of employment as a street worker with youth was terminated a result of her sex reassignment surgery. The Tribunal found that the employer’s behaviour was the discriminatory and it fell into the category of sex discrimination. Part of the respondent’s rationale for the dismissal related to concerns about her work with youth. However, the Tribunal noted that after the complainant’s termination she returned to meet with the youth and told them about her transsexuality. She says they took it very well, and that they told her they already knew.[71]
(b) Duty to Accommodate during Transition
The duty to accommodate may arise in two ways. First, it may arise in connection with a duty to accommodate on the ground of sex under s. 11 of the Code. In much the same way as pregnant women must be accommodated without being seen as having a ‘disability’, a person's medical or other requirements may lead to an accommodation request under s. 11 of the Code. Secondly, a complainant may have been diagnosed with gender identity disorder and may choose to make a complaint based on handicap. In this case, the duty to accommodate is individualised according to s. 17 of the Code, which deals with handicap.
As discussed above, during, and after the period of transition, the issue of gender segregated facilities and services might arise. The individual should be able to use the facilities of the gender with which he or she identifies. Segregation is rarely appropriate unless the individual has specifically requested it. This is because segregation may reinforce myths that transgenderism is ‘freakish’, that transgendered people should keep their distance, or that they are objects of curiosity that should be kept separate from everyone else. In some instances, the individual making the transition prefers or requests a separate washroom until the period of transition is complete. However, if this accommodation is imposed and not requested by the person it may undermine their dignity.
The person seeking accommodation is required to indicate what measures he or she is seeking. For example, employers should be advised of the time required away from work for surgery. Accommodation needs may also be identified during the transition process. In some places of employment where the individual has worked in the other gender for a long time, it may be useful and important for the employer to initiate training or sensitisation for staff. Since there is a risk that accommodation requests may compromise the transgendered individual’s privacy, efforts to sensitise others should only take place in consultation with the transgendered person.
(c) Fear of Reprisal
In the consultation meetings with the transgendered community, both self-identified transsexuals and cross-dressing individuals raised concerns about reprisal resulting from disclosure and the exercise of their rights. The Code protects individuals from reprisal in situations where they seek to claim or enforce their rights under the Code. This also protects individuals who support or assist a transgendered person and are subjected to a reprisal.
(6) Family Law
(a) Recognition of marriage
At this time court decisions involving transgendered people have not been favourable. For example, a transsexual living with her female spouse might be considered to be in a same sex relationship based on the transsexual's felt gender. From the perspective of a transsexual who becomes female and remains married to her partner, this is a same sex marriage. Married transgendered persons sometimes find that their marriages are annulled upon transition to one’s felt gender. Some cases have held that if both parties are of the same birth assigned sex, there cannot be a legal marriage.[72] Either way, if same sex marriage gains legal recognition it may go a long way toward resolving the marriage issue.
Gender identity clinics often require that parties divorce, in part for reasons linked to their liability in assisting the transgendered person to transition. Where the transgendered person is still oriented to the same gender after transition, the union will become a same-sex partnership. Some medical clinics state that they cannot support the existence of same sex marriages, as they are not legal.
(b) Custody and Access Pre- and Post Surgery
Sex reassignment frequently results in the dissolution of the marriage; custody and access disputes also arise. During consultation, some participants noted judicial biases against transgendered parents having custody or liberal access. However, in 1996 an Ontario court ruled that one's transsexual identity is not a factor that should be used for deciding custody issues.[73]
(c) Recognition of Parenthood
In an interesting British test case, a female to male transsexual underwent sex reassignment surgery. He was in a long-term relationship and raised two children with his partner, their biological mother. The case was an appeal from a decision that had denied his request to be designated as the legal father on the birth certificates of the children.[74] Another 1995 decision regarding same sex adoption rights of lesbian partners, one of who was the natural mother, may provide a basis for parental recognition where one partner is the natural mother.
(7) Intersectionality and Cross-Cultural Issues
Intersectionality or multiple forms of discrimination occurring simultaneously, raise especially important issues for this already marginalised community.
For example, the HIV /AIDS legal network draft discussion paper, issued in November 1998, noted that transgendered people have specific issues and challenges when living with HIV/AIDS.[75]
Some individuals who begin transitioning stay married to their partners. If, for example, a transgendered individual undergoes MTF sex reassignment surgery, then she may also ‘come out’ as a lesbian. While there are fewer incidents reported of female to male transsexuals, there are incidents where the female to male transition is also accompanied by the process of ‘coming out’ as a gay man. Transgendered individuals from racial or national minority cultures may face multiple forms of discrimination from both mainstream society and their own community.
[53] See M.L. and Commission Des Droits de la personne et des droits de la jeunesse du Quebec v. Maison des jeunes, Quebec Human Rights Tribunal, District of Montreal, Rivet, J. Assessors: C. Gendreau and K. Hyppolite, July 2, 1998 at p. 45. UNOFFICIAL TRANSLATION. This case was advanced the grounds of `sex`, and `civil status`. See also La Commission des Droits de la personne v. Anglsberger (1982) 3 C.H.R.R. D/892. The respondent restaurant owner refused the complainant service. The court held that the respondent did not distinguish between prostitutes and the complainant. The respondent was found in violation of article 10 of the Quebec Charter because they refused to recognise the civil status of the complaint, although she had all the characteristics of a person of the female sex.
[54] See Reid (1986), 56 O.R. (2d) 61 (Ont. Div Ct.).
[55] See note 53.
[56] P v. S and Cornwall County Council, C.J.E.C. C-13/94.
[57] See note 3.
[58] See note 14.
[59] See, M. Petersen and R. Dickey, Surgical Sex Reassignment: A Comparative Survey of International Centres: Archives of Sexual Behaviour, Vol. 24, No. 2 (Ontario: Plenum Publishing, 1995).
[60] See note 33.
[61] Change of Name Act, R.S.O. 1990, Chapter C.7.
[62] Telephone discussions with Antonia Schmidt, Office of the Registrar, Ministry of Consumer and Commercial Relations (December 17 & 18, 1998).
[63] See note 39.
[64] A. S. Leonard, Pre-Op Transsexual Wins Right to Seek Medicaid Funding for SRS, LESBIAN GAY LAW NOTES <http://www.gender.org.gain>.
[65] Criminal Code, R.S.C. 1985, c. C-34.
[66] See note 53.
[67] See note 36.
[68] See M. Petersen et al., Transsexuals within the Prison System: An International Survey of Correctional Services Polices, Behavioral Sciences and the Law, Vol. 14 (Toronto: Clarke Institute of Psychiatry, 1996) 219-229.
[69] M. Ross, Investigating Women’s Shelters, in Gendertrash #3, Winter (1995).
[70] See Siren Magazine, (Apr/May 1997/p.8).
[71] See note 53.
[72] See Corbett v. Corbett (1970) 2 All E.R. 33. This case remains the leading authority and is applied in Canada. In Corbett, the House of Lords ruled that for legal purposes, including adjudicating the validity of marriage, sex is fixed at birth, is tied to chromosomal makeup, and cannot be changed. The marriage involving a transsexual person was annulled on these grounds. In M. v. M. (A) (1984) 42 R.F.C. (2d) 55 (P.E.I.S.C.) the wife, a latent transsexual, started to live as a man and intended to undergo surgery. On the husband’s application to annul the marriage, the court granted annulment noting that the “capacity for natural heterosexual intercourse is an essential element of marriage”. In a more recent family law case, an Ontario court refused support to a transsexual person who had been living as the spouse of a woman for more than 20 years: B.v.A. (1990) 1 O.R. (3d) 569. The Court believed that only a radical and irreversible change to all reproductive organs could constitute a sex change within the meaning of the Vital Statistics Act. In R. v. Owen (1995) 110 DLR (4th) 339, Owen, a biological male, lived as a female for 40 years with her male companion. Owen was initially awarded a pension upon the death of her companion. On application by the Crown, the court disallowed the pension, stating that to be considered a spouse one actually had to be a member of the opposite sex.
[73] See note 53. See also Morgan v. White Ont. Court (Gen. Div.) Family Court London, Ontario Apr 26, (1996) O.J. No. 1510 indexed in QUICK LAW.
[74] X, Y AND Z v. THE UNITED KINGDOM, European Court of Human Rights, April 27,1997 (75/1995/581/667) from <http://www.pfc.org.uk/legal/xyzjudge.htm>.
[75] See Canadian HIV/AIDS Legal Network: Legal, Ethical, and Human Rights Issues Raised by HIV/AIDS: Where do we go from here? Planning for 1998-2003, A Draft Plan (November 1998).