National Post 26 May 2015
After successfully lobbying provincial and federal governments to make it easier to amend sex designations on key identity documents, transgender Canadians are now pushing for another change: to abolish gender references altogether from birth certificates. The B.C. Human Rights Tribunal has agreed to review complaints filed by the Trans Alliance Society and a handful of transgender and intersex individuals, who argue that doctors should stop assigning the sex of a baby based on a quick inspection of the baby’s genitals at birth when there’s a possibility they may identify under a different gender, or no gender, years later.
“Birth certificates (may) give false information about people and characterize them in a way that is actually wrong, that assumes to be right, and causes people … actual harm,” said Morgane Oger, a transgender woman in Vancouver and chair of the society.
“It’s considered true and infallible when it isn’t.”
Governments have been receptive in recent years to calls to make it easier for people to change the sex on their personal records. Several provinces, including B.C., Alberta, Manitoba, Ontario and Nova Scotia, no longer require a person to have undergone sex-reassignment surgery before they can request a change to the gender designation on their birth certificates.
Earlier this year, Citizenship and Immigration Canada announced that it, too, would no longer require proof of sex-reassignment surgery in order to change the sex designation on a citizenship certificate. It now will accept an amended birth certificate.
But advocates say the changes do not go far enough because governments are still certifying as true information recorded at birth which they know may be wrong in some cases.
The current regime falsely presumes there are two genders, that genders never change and that you can tell a child’s gender at birth, said Vancouver human rights lawyer barbara findlay, who is representing the complainants and spells her name in all lowercase.
“That means that children are raised ‘as’ the birth-assigned gender, which is a crazy-making experience. Instead of living in a social reality that recognizes that gender develops, and does not exist at birth, those children have nothing to work with except that something feels profoundly wrong,” she said via email.
“Getting to the stage of being able to ‘change’ gender is an anguishing process, in which a child often experiences severe pushback from their own families.”
The only way, she said, to know one’s gender identity is to ask that person. “At law, gender identity trumps what is between one’s legs.”
One of the complainants is Harriette Cunningham, a Comox, B.C. girl who was born a boy, and was among the first in the province last year to successfully have her gender redesignated on her birth certificate. According to the complaint filed on her behalf by her parents, Colin and Megan Cunningham, “Harriette was mistakenly assigned the gender ‘male’ at birth. Having any gender marker on her birth certificate has contributed significantly to discrimination based on her gender, at school and in the world.
“Since it is impossible to tell an individual’s gender at birth it is discriminatory to issue a birth certificate with that information on it.” However, those advocating the elimination of gender designations on birth certificates are likely to face big challenges, said Karen Busby, a University of Manitoba law professor and director of the Centre for Human Rights Research. Busby said she has a lot of sympathy for those seeking to stop the practice of assigning gender at birth. But epidemiologists need to track the number of boys and girls born for statistical purposes, and the number of intersex children – those born with sex characteristics that are not distinctly male or female – is so small it doesn’t affect overall data.
Further, the removal of gender designations on key documents could run afoul of international organizations that set standards for what information is needed in travel documents, she said.
One alternative option might be to allow for someone to be identified other than male or female. But that, too, raises a number of practical issues, she said.
“It’s just a minefield.”