Transgender Rights in Canada

Transgender is a term used to describe people whose gender identity differs from the sex they were assigned at birth. Gender identity is a person's internal sense of being. For some people, their gender does not fit into one or the other and they may describe themselves using a wide variety of terms, including transgender, transsexual, and non-binary, and often prefer gender-neutral neopronouns like xe, ey, zie, ve, per, sie, and ne. In order to express their chosen gender, some trans people choose a medical transition using prescribed hormones and/or surgery.

A list of gender-neutral neopronouns

Transgender Discrimination

Transgender individuals have been known to experience widespread discrimination, stigmatization, and victimization, which are linked to a subsequent state of dysphoria. Discrimination on the basis of gender identity is still very prevalent in Canada and the United States. According to the "2015 U.S. Trans Survey":

• 29% of transgender people live in poverty, compared to 14% of the general population
• 30% of transgender people report being homeless at some point in their lives
• Transgender people experience unemployment at 3x the rate of the general population
• 30% of transgender people report being fired, denied a promotion, or experiencing mistreatment in the workplace due to their gender identity in the past 12 months
• 40% of respondents reported attempting suicide in their lifetime, nearly nine times the attempted suicide rate in the United States (4.6%)

Today human rights legislation provides concrete legislation allowing individuals to seek remedies against organizations, employers, and government bodies who discriminate. By acknowledging gender identity claims, human rights bodies can provide tangible support for trans people.

Social Institutions

Frequently, homeless LGBT persons have great difficulty finding shelters that accept and respect them. Transgender people are particularly at physical risk due to a lack of acceptance and are often turned away from shelters; in some cases signs have been posted barring their entrance. With the government accepting biology subordinate to gender identity, single-sex heterosexual institutions like women’s shelters or single sex sports leagues have began to feel threatened. According to the Williams Institute, 40% of the homeless youth served by agencies identify as LGBT, 43% of clients served by drop-in centers identified as LGBT, 30% of street outreach clients identified as LGBT, and 30% of clients utilizing housing programs identified as LGBT.

Within the LGBT community, transgender people face the most alarming rates of sexual violence. 85 percent of victim advocates surveyed by the NCAVP reported having worked with an LGBT survivor who was denied services because of their sexual orientation or gender identity. The National Transgender Discrimination Survey found that among the transgender who had interacted with police, 6 percent had been physically assaulted and 2 percent had been sexually assaulted by them.

Hate Crime

The most recent data shows a substantial increase in hate crimes against LGBT people, including horrific examples of hate-inspired homicides. In 2013, Canada was the home of 186 sexual orientation based hate crime. The Whatcott case was among the first few cases that challenged the Canadian legal landscape and the way in which hate crimes based on sexual orientation are tried. Whatcott, a socially conservative Christian, campaigned against homosexuality through picketing and distributing flyers and posters. Whatcott was arrested 27 times but was only prosecuted twice due to the lack of judicial interest in homophobic cases.

In the past, Canadian organizations, primarily conservative Christian ones, exist to argue that the ‘natural family’, consisting of heteronormative couples and children, are ‘best’ for society. Mel Chen’s articulates society’s perception of the modified body, like one that has been subject to sexual reconstruction, as a mourning loss of purity. Consequently, the resulting ‘impure’ body, although hyper-augmented, is seen as ‘less than’ by many. Stuart Hall supports another perspective which acknowledges that reproduction is not just about biology, but is given purpose through one’s unique cultural beliefs and social, medical, and political institutions. Fundamentalist concepts of right and wrong can rarely make sense of things like reproductive decisions, and because of society’s varying opinions controversy and discrimination is almost inevitable.

American Legislation

Disability and the DSM-5

The United States holds no federal legislation against gender identity discrimination, with only 17 of its states explicitly expressing protection for transgender individuals. As a result, many have been forced to seek protection under disability law, which has been one of the more successful tools but requires classifying transgender individuals as “disabled.” The 2013 5th edition Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) was published by the American Psychological Association (“APA”), establishing new clinical guidelines for classifying mental disorders. This edition altered the classification of Gender Identity Disorders (“GID”), thereby becoming Gender Dysphoria, designed to cover the additional complications and treatment sometimes associated with gender identity. The change from Gender Identity Disorder to Gender Dysphoria attempts to de-stigmatize the diagnosis by shifting the focus of the clinical problem from identity to dysphoria. They found it much easier to prove gender dysphoria rather than GID because the level of proof and discomfort are set at a much higher standard for a Disorder. The internationally accepted standards of care for gender dysphoria have subsequently been established by the World Professional Association for Transgender Health (WPATH).

On a federal level, however, the transgender community is still explicitly excluded from claiming disability under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and the Affordable Housing Act. The ADA eventually passed explicit exclusion for the LGBT community, with the exception of transgender. 40 out of 50 states rejected the federal lead so that they could protect transgender. This lack of exclusion allowed for trans litigants to argue for protection under state law. There has been a lack of research as to why these legislative alterations were proposed. Nonetheless, given the current legal landscape, disability laws have provided the most successful protections to date, and so the transgender community as a result has sought protection through the disability under civil liberties, and the Equal Protection Clause.

Norsworthy v. Beard

Michelle-Lael B. Norsworthy, an inmate in the California Department of Corrections and Rehabilitation (“CDCR”), sought relief from the facility’s failure to provide her with medically necessary sex reassignment surgery (“SRS”) and to allow her to pursue a legal name change. Norsworthy argued that the CDCR’s failure to comply was cruel punishment under the 8th Amendment, and a violation under the Equal Protection clause of the 14th Amendment, claiming that she could not obtain relief from her Gender Dysphoria without the surgery. The Court concluded that she would have likely suffered irreparable harm in the absence of surgery and granted an injunction in order to access adequate medical care. She was protected by the Ninth Circuit Court of Appeals under the 8th Amendment because she was incarcerated and required prompt medical attention. Previously, gender identity discrimination cases had not sought protection under the 8th Amendment, nor the Equal Protection Clause under the 14th Amendment, providing protection to a broader section of the transgender community. Although this conclusion doesn’t hold true for other jurisdictions, the instance points towards a transgender protection grounded in the Equal Protection Clause instead of solely under disability law.

Canadian Legislation

Historical Background

The bulk of the judicial decisions in favor LGBT rights in Canada surfaced in the early 1990s, beginning with Haig v. Canada in which sexual orientation was read into the Canadian Human Rights Act and the definition of spouse in Medicare Protection Act was extended to include same sex couples. The Haig v. Canada decision in 1990 began the process in favor of same sex cases and legislation to follow, but it wasn’t until 2003 that federal courts modified the existing marriage laws in which the union of one man and one woman was reformed to include the voluntary union for the life of two persons. Prior to that federal pronouncement in 2003, same sex marriage was only legal on a provincial level in Ontario and British Columbia.

The LGB of LGBT has received much attention from activists, the legislature, and the justice system within the last 25 years, predominantly regarding discrimination cases based on sexual orientation. Transgender rights have been particularly ignored when compared to the rest of the LGBT community. In the recent criminal justice arena, the LGBT rights movement has principally focused its energy on reevaluating unfavorable legislation and on enacting new legislation geared towards the issues of discrimination (hate crimes, sentencing enhancement statutes and anti-bullying statutes).

Transgender Legislation and Rights

LGBT rights and activism views transgender rights as anti-discrimination based on sexual orientation; however in legislation, they are often left out. The Canadian federal government, as well as each provincial and territorial government, has a human rights code that list grounds under which Canadians may not be discriminated. Among all provinces and territories, only the Northwest Territories, Manitoba, Ontario, Nova Scotia, and British Columbia explicitly recognize claims of discrimination on the basis of gender identity.

The legislatures in the remaining provinces and territories have yet to pass bills implementing gender identity into their human rights codes, meaning that gender identity isn’t recognized as grounds of discrimination in these places. Even without legislation, however, they recognize discrimination committed on the grounds of gender identity on their websites and in human rights publications, even though their codes have not yet been amended. This is called ‘implicit recognition.’ Corroborating these informal recognitions of transgender rights, the Canadian federal government recently approved bill C-16 on May 17 2016, which strengthened protections for the transgender community. Under Bill C-16, gender identity and expression will now be listed in hate crimes provisions of the Criminal Code and as a prohibited ground for discrimination in the Canadian Human Rights Act. It also extends protection against hate propaganda to include gender identity and expression.

Bathroom Bills and Gender Neutral Signage

Canadian transgender rights bills were met with controversy when considering traditionally heterosexual public services such as bathrooms. These "bathroom bills" sought to support gender identification, however some felt that extending human rights protections to transgender people would make it easier for predators to prey on children in public washrooms. During the Senate study of Bill C-279, Conservative Senator Don Plett tabled amendments to exempt public washrooms from rights protection and those amendments were adopted by a Senate committee in 2015. Nonetheless, cities like Toronto and Vancouver have begun to implement gender-neutral signage on their public bathrooms.

lgbt sign

The Canadian debate mirrors the debate in the United States where, most recently, the state of North Carolina passed a law requiring transgender individuals to use the restroom that corresponded to the gender on their birth certificates. That law has prompted boycotts and is being challenged by the federal justice department. In lieu of this, the Trump administration removed questions about gender identity from a draft of the upcoming 2020 U.S. census.

Transgender Healthcare

Transgender individuals face additional health challenges when compared to their gay and lesbian counterparts. Hormone therapy or psychiatric therapy is a common course of action for those looking to change their gender, but with gender reassignment surgery incongruent to one’s biological gender identity, is not fully covered by most Canadian healthcare plans. All provinces do however fund some surgeries varying depending on the service, coverage, and province in alliance with the amended criteria on internationally accepted standards of care for gender dysphoria. The state’s power over transgender decisions and ultimate quality of life can be defined by Michael Foucault through biopolitics, the political management over the way we live. Biopolitics exists with the government’s power to controlling society’s lives, where we are both protected and eliminated via legislation. Learn more about his work here.

Transgender activists have fought to make it easier to change one’s gender on official documents without having to undergo these gender reassignment surgeries. In 2012 the Ontario Human Rights Tribunal struck down the surgical provision with B.C. and Alberta following in 2014. The uncertainty of other provinces following suit and the inconsistencies between provinces call for federal legislation.

Canada and Global Activism

Canada’s support of LGBT rights are far more progressive than its western counterparts with Canada legalizing same sex marriage 10 years before Great Britain and 12 year before the United States. Unlike most countries, Canada currently has federal legislation in Parliament through Bill C-16, which protects transgender individuals from discrimination with gender identity and expression in the Human Rights Act.

After much support from Trudeau, Commonwealth officially approves the first LGBT organization, the Commonwealth Equality Network (TCEN), in 2017 for accreditation as a Commonwealth organization. This accreditation grants TCEN activists the opportunity to participation in Commonwealth matters.

The transgender guidelines on Sex Reassignment in Sports were reassessed for the Olympic games in 2015 due to this same growing importance of autonomy and gender identity in society. Although this was reflected in in the laws of many jurisdictions worldwide, there were also jurisdictions where autonomy of gender identity was not recognized at all. The International Olympic Committee (IOC) felt it necessary that trans athletes were not excluded from the opportunity to participate in sporting competition. The IOC Consensus Meeting agreed that those who transition from female to male are eligible to compete in the male category without restriction. Transitioning male-to-female’s, however, are only eligible to compete if they identify is female unchangeable for 4 years, and that their total testosterone level in serum has been below 10 nmol/L for at least 12 months prior to the first competition in will remain that way throughout. See details here.