Transrights in Quebec and Canada: Recent Developments

Like about half the provinces in Canada, Quebec used to oblige transgendered people (“trans people”) to undergo sexual reassignment surgery before permitting a change to their civil status (i.e. birth certificate).[1]

In December 2013, the government Quebec amended the Civil Code of Quebec (CCQ) to make it easier for trans people to change the sex designation and their first names on birth certificates.[2] The new article, which is not yet in force, abolishes the legal requirement for sex reassignment surgery.

Changes to the Civil Code

The original version of Art. 71 of the CCQ read as follows:

All persons who have successfully undergone medical treatments and surgical operations involving a structural modification of the sexual organs intended to change their secondary sexual characteristics may obtain a change of the designation of sex which appears on their act of birth and, if necessary, of their given names.

Only a person of full age who has been domiciled in Québec for at least one year and is a Canadian citizen may make an application under this article.

The amended version of Article 71 now says:

Every person whose sexual identity does not correspond to the designation of sex that appears in that person’s act of birth may, if the conditions prescribed by this Code and by government regulation have been met, have that designation and, if necessary, the person’s given names changed.

These changes may in no case be made dependent on the requirement to have undergone any medical treatment or surgical operation whatsoever. Subject to article 3084.1, only a person of full age who has been domiciled in Québec for at least one year and is a Canadian citizen may obtain such changes. [Emphasis added.]

New procedure

As the second paragraph of the new Art. 71 suggests, a government regulation is needed for the new procedure for applying for a gender change. The new regulation would amend the Regulation respecting change of name and of other particulars of civil status, c. CCQ r. 4

Two competing considerations are at play: first is the public interest in stable and accurate records for vital statistics. Second, individuals should be able to exercise autonomy in how they live their lives and in how they socially construct their identity, without that identity being treated as a disease or illness.

On December 17, 2014, the government tabled a new proposed regulation.[3] The proposal would have required the applicant to declare that she or he had lived as the other gender continuously for at least the previous two years, and that she or he would continue to live as the other gender until death. The proposed regulation also would have required two supporting letters, one from a health care professional and another letter from a person who has known the trans person for at least two years. Hearings on the proposed regulation took place in 2015.

The majority of briefs to the Quebec “Committee of Institutions” were from equality groups, trans groups, and human rights groups, as well as the Quebec Bar Association. Most took the position that the regulatory requirements were unrealistic and unnecessarily restrictive. Quebec’s human rights commission took a similar stance. Most agreed that the state’s interest in keeping stable and accurate vital statistics and records should be achieved through a personal or solemn declaration by an individual.[4] Limiting the requirement to a simple formal or sworn declaration would respect autonomy, self-determination and human dignity and is sufficient in at least one jurisdiction, namely Argentina.

However, some briefs including that of the Quebec Bar Association, observed that most provinces in Canada even those with more progressive models still require some external corroboration.

New Recommendations

In response to the consultations, Quebec’s Committee on Institutions submitted its own observations and recommendations in May 2015.

It recommended that the requirements of having lived for at least two years as the other gender and of committing to live at all times as the other gender until death be rejected. Instead, it was recommended that the person need only solemnly affirm that the designation of sex requested on the birth certificate corresponds to the person’s expressed gender identity, and that the person understands the seriousness of the request.[5]

The Committee also suggested that the requirement of corroboration from only a health care professional be removed, thus allowing a wider list of eligible persons. The  requirement for the independent corroboration from another person would also be reduced so that the person need only affirm having known the trans person for at least six (6) months and that the seriousness of the request for a change in civil status is affirmed.

What is next?

A new draft regulation in the Fall of 2015 and the possibility of special procedures for minors.

 

ANNEX 1

 

Criteria for adult applications in Alberta, BC, Ontario, Manitoba, Nova Scotia and Nunavut (jurisdictions in Canada that no longer require sex reassignment surgery).

This information may have been updated since May 2015. Please check individual jurisdictions for more recent information.

 

Province or Territory /

LAW

Sworn or solemn declaration Min. wait period Certificate or statement from health professional required Transparent procedure? Second corroboration form someone other than health care professionals
Alberta

Vital Statistics Act, RSA 2000 V-4;

ss. 16.2, 16.3; Vital Statistics Information Regulation (as am.) AR 20/2015

YES

 

NO

 

 

YES[6]

Regulated medical professional i.e., doctor, psychologist

 

Not yet[7]

 

Procedure being finalized[8]

 

BC

Vital Statistics Act, RSBC 1996, c. 479.

YES NO YES

(practicing registrant i.e., doctor, psychologist)

YES NO
Manitoba

The Vital Statistics Amendment Act S.M. 2014, c. 22.

YES NO YES

Health professionals[9]

 

YES[10] NO
Nova Scotia

Change of Name Act (amended) and Vital Statistics Act (amended)[11]

YES NO YES (“prescribed professional”)

 

Regulations to follow[12]

Regulations to follow NO
Nunavut

NEW: An Act to Amend the Vital Statistics Act

 

YES NO YES

TWO professionals “medical practitioner, nurse practitioner or psychologist”

NOT AS YET

 

NO
Ontario

(change to directives)[13]

YES NO YES

Practising physician or a psychologist (including a psychological associate) authorized to practise in Canada[14]

YES[15]

 

 

NO

 

NOTES 

[1]  See the Table in Annex for an overview of what is done elsewhere in Canada.

[2]  An Act to amend the Civil Code as regards civil status, successions and the publication of rights, S.Q. 2013, c. 27.

[3] Draft regulation concerning the Regulation respecting change of name and of other particulars of civil status for transsexual and transgender persons (2014), 146 G.O. II 4494.

[4] A list of the briefs that were submitted can be seen at http://www.assnat.qc.ca/fr/travaux-parlementaires/commissions/CI/mandats/Mandat-32171/memoires-deposes.html

[5] National Assembly of Quebec, Committee on Institutions, Special consultations and public hearings on the draft regulation concerning the Regulation respecting change of name and of other particulars of civil status for transsexual and transgender persons, Observations et recommendations (May 2015).

[6]  See C.F. v. Alberta (Vital Statistics), 2014 ABQB 237, a court decision saying that the sex reassignment criterion is discriminatory.

[7]  Ibid.

[8]  C.F. v. Alberta (Vital Statistics), see note 6.

[9] Doctors, psychiatrists and surgeons; nurses, practical nurses, psychologists, or independent practice psychological associate.

[10]  http://vitalstats.gov.mb.ca/change_of_sex_designation.html

[11] On 8 April, 2015, the government introduced a Bill that would permit a change of sex identity.  Bill No.82,  Second Sess. 62nd General Assembly, Nova Scotia, 64 Elizabeth II, 2015.

[12] According to media statements, social workers were also being considered as eligible to make declarations: http://www.cbc.ca/news/canada/nova-scotia/nova-scotia-to-allow-gender-change-on-birth-certificates-1.3025056

[13]  https://www.ontario.ca/government/changing-your-sex-designation-your-birth-registration-and-birth-certificate

[14] The Ontario Human Rights Commission has suggested a wider list of eligible persons e.g., social workers, nurses, educators, therapists, or even family members.

[15]  https://www.ontario.ca/government/changing-your-sex-designation-your-birth-registration-and-birth-certificate

 

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