 Gender Identity added to Federal Laws
Yesterday, the House of Commons passed a law adding ‘gender identity’ to the list of protected grounds under the Canadian Human Rights Act and the Criminal Code.
NDP MP Randall Garrison introduced the legislation as a private member’s bill. In his version, the words ‘gender identity and gender expression’ would have been added to both laws.
But in the process of getting the law passed, compromises were made. The law now extends only to ‘gender identity’, and that term (unlike other prohibited grounds) is defined. The definition says “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.
The result of the amendments is two fold. Though trans people have been consistently successful complaining about discrimination under the Canadian Human Rights Act on the grounds of ‘sex’, the addition of this new ground makes it visible to everyone that trans people are protected. That is an important public education function.
The second protection for trans people is in the ‘hate crimes’ section of the Criminal Code. That section provides for increased sentencing where it can be shown that a crime was motivated by bias, prejudice or hatred against an identifiable group. ‘Gender identity’, defined in the same way as in the Canadian Human Rights Act, has been added to the list.
The change to the Criminal Code is important, but applying it is sometimes a problem, since assailants do not necessarily shout “I am beating you up because of your gender identity!” Unless there is some evidence that that was the motive, courts have not used the sentencing provisions much.
The bill will not take effect until it is considered by the Senate (who can amend it) and given royal assent.
You can find the full bill at http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6053237
The Supreme Court of Canada today issued an important decision about hate speech directed at queers.
The background to the case concerned four documents: two flyers, one called "Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools"; and two flyers which were the reprint of a classifed ad with handwritten comments added.
Under the Saskatchewan Human Rights code, it is illegal to circulate publications which "expose a person to hatred and ridicule" on a protected ground - here, sexual orientation.
So the big question for the court was: where does prohibited hate speech end, and where does freedom of speech begin?
The Supreme Court of Canada analyzed what a publication must be like in order to contravene the hate speech provisions. It said that there must be three main elements. First, the person judging whether the publication contains hate speech must do so from an 'objective' point of view, asking themselves whether a 'reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred'. (In other words, you cannot only ask queers what they think about that question). Second, it is only hateful and contrary to the protections in Saskatchewan's human rights legislation if it is really hateful...in the sense captured by the words 'detestation' and 'vilification'. It's not hate speech just because it is repugnant or offensive. And finally, the decision maker must look to see what the effect of the hate speech is: is the probably effect that it will expose the targeted person or group to hatred by others?
The complainants had argued that the section of the human rights law under which they had been convicted was a breach of their constitutionally protected right to freedom of speech. True, said the Supreme Court of Canada: but, your right to freedom of speech has to be balanced against the right to be free from speech which is likely to cause hatred; and in this case, most of the human rights law is appropriate and impairs one's freedom of speech minimally.
Part of the Saskatchewan human rights legislation outlawed speech which "ridicules, belittles or otherwise affronts the dignity of" a person. That part of the law, said the Supreme Court of Canada, is too broad. And they struck it down.
This case has been long-awaited. Queers have been holding our breath to see whether the Supreme Court of Canada would uphold our right to be free from malicious homophobic speech, or whether once again our rights would be seen as subordinate to someone else's rights to free speech, or freedom of religion.
 CHOOSING CHILDREN: March 2013
Queer families who want to have children may adopt a child, or they may choose to have a child by birth.
This pamphlet describes the options if you want to conceive a child, and how the law applies.
A single person can have a child by birth, and if they do, the explanations in this pamphlet will apply.
A lesbian couple will need sperm. A gay couple will need both eggs and a surrogate mother who will gestate and give birth to the child. A couple in which one intended parent is transgender may or may not require sperm, eggs, or a surrogate.
All of these ways of conceiving a child are referred to as “assisted reproduction”. If a child is conceived with assisted reproduction, who are the child’s legal parents? Do queer parents have to get an adoption order, or an order declaring them to be a parent, to be sure that their legal connection to their child cannot be challenged? Suppose a queer couple want to include an egg or sperm donor as one of the child’s parents? Can you have more than two legal parents?
The Family Law Act
For the first time in B.C., the law answers all these questions. After March 18, 2013,
- Donors of sperm and eggs are NEVER ‘parents’ of a child conceived with their genetic material, except if
- Both parents in a lesbian, gay or trans-headed family are entitled to register as the child’s legal parents when the child is born, without the need for a “stepparent adoption” or a court order declaring them as parents
- If a queer couple has agreed with a surrogate mother to carry their child, the couple (and not the surrogate) can registered as the child’s legal parents when their child is born
- you do not have to have a genetic connection to a child in order to be registered as a legal parent of a child when the child is born
- it is possible to register more than two people as a child’s legal parents when the child is born, provided that the intended parents have agreed in writing before the child is conceived
These are very big changes. Before the Family Law Act, a birth parent, and a co-parent who was not genetically connected to a child, could be registered with the Vital Statistics Registry, and get a birth certificate showing both of them to be “parents” of their child. But that didn’t make the non-genetic coparent a child’s legal parent. For that to happen, a stepparent adoption or a court order declaring the non-genetic parent to be a child’s legal parent was required. If a surrogate mother carried a child for a queer couple, both intended parents needed a court order, even if one of them had donated sperm or eggs to enable the conception of the child.
And it was not possible for a child to have more than two legal parents.
Why the Emphasis on “Legal” Parents?
There can be many ‘parents’ in a child’s life: the parents she had at birth, and the, if her parents broke up, partners they got together with could become stepparents. Those partners acquired responsibilities as the child’s stepparent. But they never become a legal parent of a child.
A child’s legal parent is the person under the law from whom a child would inherit. Who your legal parents are determines who your relatives are, and determines such issues as who you can marry without being guilty of incest.
We will examine the situation of lesbian co-parents, gay co-parents, and families with a transgender co-parent.
Remember that a single parent can also become a parent.
Lesbian Co-Parents
Sperm Donation Only
A lesbian couple who want to have a child together will need a sperm donation. They can either buy sperm from a fertility clinic, or they can use sperm donated by someone they know. If they buy sperm, they can register both lesbian moms on the child’s birth certificate when the child is born. And that makes them the child’s legal parents, without any further steps being necessary. No expensive adoption or declaration of parentage is required.
The same is true if they use sperm from a known donor - with two important cautions.
The co-moms must have been in a relationship when the child was conceived.
And it matters how the child is conceived. If a donor gives sperm to an intended mom, and she uses the “turkey baster method” to inseminate, both moms can register as their child’s legal parents at birth. But if the bio-mom skips the turkey baster and has sex with the donor, then he and the bio=mom are deemed to be the child’s legal parents. In that case the lesbian co-mom will need an adoption order or a declaration of parentage to confirm that she, and not the sperm donor who had sex with the birth mom, is the child’s second parent.
The law specifically says that a sperm donor does not get any rights or responsibilities as a legal parent just by donating sperm. So no donor insemination agreement is necessary
Egg Donation /Surrogacy
Even if neither of the lesbian co-moms is able to conceive, or carry, a child, the two co-moms can be registered as the child’s legal parents at birth. In that case, they will need in addition to sperm a donation of eggs and a surrogate mother.
What Does it Cost?
If they need a surrogate mother, and the child will be conceived with donated sperm and the eggs of the surrogate, they may work with a fertility agency, or the surrogate may be inseminated through the turkey baster method.
It is illegal to pay for eggs, or sperm. It is also illegal to pay a surrogate a fee for carrying your child, though you can pay the surrogate’s expenses. The law is unclear about what expenses are permitted to be reimbursed. You will want to be clear with the surrogate mother what things will be paid for. If your surrogate is a resident of B.C., she will be able to rely on B.C. Medicare to pay for the cost of delivering the child.
If you use the services of a fertility agency, there is of course a charge.
Making sure you are the legal parents of a child born to a surrogate
If you are a lesbian couple who are planning to have a child with sperm from a donor, and eggs from a woman who will carry the child, what steps do you need to take to make sure you are the two legal parents of the child who is born?
As we said, you don’t need a donor insemination agreement.
But you do need a written surrogacy agreement, signed between the lesbian co-moms and the surrogate before the child is conceived. And the surrogate will also have to sign a consent to surrender the child, when the child is born.
Because the surrogacy agreement has to comply with the Family Law Act to enable you to rely on it to register as the child’s legal parents without needing a court order or an adoption, it is wise to get legal advice before drafting the agreement.
Once the child is born, if your paperwork is in order, you can register both of you as the child’s legal parents, with the Vital Statistics Agency. At that point, you are your child’s only legal parents. Neither the sperm donor, nor the surrogate /egg donor, has any parental rights.
What if you didn’t know about the need for a pre-conception surrogacy agreement, or your paper work does not comply with the requirements of the Family Law Act? In that case, the Vital Statistics Agency will not register you as the parents of your child. You will need to get a court order declaring you to be the parents of the child. For that you will need the help of a lawyer.
Gay Dads
If you are a gay couple wanting to have children, you will need to have an egg donor, and a surrogate mother. They may be the same person.
As outlined above, you can pay a surrogate mother for her expenses, but you cannot pay her a fee; and ou cannot pay for a donation of eggs.
You may use a fertility clinic to assist with the insemination. If you are using an egg donor who is different from the surrogate mother, you will have to use the services of a fertility clinic, because they will have to do an extraction of the eggs. An embryo will be created “in vitro” (outside the womb) and implanted in the surrogate mother.
If your egg donor and the surrogate mother are the same person, you need to have a surrogacy agreement, signed before the child is conceived; and when your baby is born your surrogate mother will have to sign a consent and give the baby to you. See above for a description of the surrogacy agreement.
With that paperwork in hand, you and your partner can register as your child’s legal parents at the birth of your child. You are then the child’s only legal parents, for all purposes of the law.
If for some reason your paperwork is not in order, you will need to make an application for a “declaration of parentage”. You will need legal help to do that.
Transgender Families
A couple may include one or two transgender individuals. A trans person is someone whose sense of their own gender is not congruent with the other gender indicators such as their primary or secondary sex characteristics, or their chromosomal or hormonal makeup.
For trans people whose situation is acute, medical treatment involves sex reassignment surgery (SRS) and hormone treatments. An individual changes their body so that it is congruent with their own sense of their gender.
A male to female trans person who has SRS will have her testes removed, and her penis inverted to create a vagina; and she will have breast augmentation. She will take feminizing hormones.
A female to male trans person will have chest contouring, along with masculinizing hormones. He may hsave a hysterectomy and a surgically-constructed penis.
So how does a trans person prepare for parentage? First, he or she can plan ahead, by freezing sperm or eggs to be used to conceive a child, down the road. In that case, the trans person is using their own genetic material, for their own parental project, so they are, under the law, one of the child’s legal parents.
In some cases, a transman may be able to give birth to a child. If he has not had a hysterectomy, he may conceive and/or carry a child. He will discontinue masculinizing hormones to do so. In that situation the transman will be registered as the child’s “birth mother’ because the law defines “birth mother” as the person from whose body a child was delivered. But the child’s birth certificate will show him as “parent”.
Multiple Parents
A big change in the law in B.C. is that a child can now have more than two legal parents. Provided that all of the prospective parents agree in writing, before a child is conceived, a donor of sperm or eggs, a surrogate mother, and perhaps the partners of those individuals, may also be registered as a legal parent of the child. Then the child’s birth certificate will show whichever of those people has a agreed to be a co-parent as a legal parent on the child’s birth certificate.
Because it is important that the agreements satisfy the requirements of the Family Law Act in order that all the child’s prospective parents can be registered on the child’ birth certificate without the need for a court order, it is wise to get legal advice before creating the agreement among the parents.
B irth Certificates
All of a child’s parents are listed on his birth certificate, and all of them have the word ‘parent’, regardless of how many parents a child has. The words ‘mother’ or ‘father’ do not appear any longer on birth certificates in British Columbia.*This pamphlet is effective March 13, 2013. It is available for downloading on the Out/Law page of this website, and may be used without charge provided that barbara findlay is credited as the author, no changes to the text are made, and no fee is charged for the material.
In a B.C. case decided January 16, 2013, a woman had developed a serious disability. She separated from her husband, and moved in with a woman. She then lost her job because of her disability. Her husband argued that since she had left him for a woman, that woman should now support her, and he should not have to pay spousal support.
Happily, the judge disagreed, noting that where a disability arises before separation, and there has been a long marriage, spousal support should be paid.
A warning, though: you should file for spousal support as soon as possible since the judge won't always award support back to the time you separated.M.H. v. R.H., [2013] B.C.J. No. 65
The post below is republished with the kind permission of Christin Molloy.
We expect similar changes to the Ontario ones to happen in BC shortly.
One upon a time, a legal change of sex was available in Ontario only to those Trans* persons who could prove with documentation that they had completed "transsexual surgery." Early in 2012, that requirement was found to be discriminatory in a human rights ruling. Consequently, the Ontario Registrar General was given six months to provide a new process for legal change of sex which would be accessible to all Trans* persons, as opposed to just "post-op" individuals.
The Registrar's office released their newly revised requirements in October, less than one week before their tribunal-imposed deadline was set to expire. As I reported then, the new requirements are grossly dissatisfactory for a variety of reasons.
In addition to the points I raised at that time, anyone under 18 is outright banned from having a legal change of sex (even if their parents are cooperative). This blatant form of age discrimination, targeting already disadvantaged Trans* youth, is a fact which I unfortunately omitted in my earlier piece on the topic. Thanks go to blogger Catherine (at ex puero ad puellam) for pointing this out.
As it turns out, the problems don't end there. I've received a very disturbing report which indicates the registrar is summarily rejecting applications based on nebulous requirements that are not published anywhere. Whether they are doing this on purpose or by mistake, the effect is the same.
When my source, "Illiana," had her application rejected (after a two month wait), she wanted to know the reason why. So Illiana emailed the Deputy Registrar General and requested an explanation, and was contacted the next day by a customer service rep from the specific department of the registrar's office tasked with verifying that applications are "complete and correct."
The first problem with Illiana's registration was relatively straightforward. "I didn't provide them with the birth certificate I was issued 20 years ago... (because it was) lost 15 years ago," she says.
In defense of the registrar, the change of sex form does say "please send ... all previously issued birth certificates and certified copies of the birth registration." Illiana's impression from the form was that since her certificate was long gone, there weren't any copies left to submit. However, what is really meant by the form is "must send," and "at least one copy." Indeed, when I legally changed my name (my parents lacking the foresight to name their son Christin), I actually had to first specifically order and pay for a replacement birth certificate, in my male birth name, only to then turn around and remail it back to the registrar to be destroyed as part of the name change process. Typical government efficiency.
Now, the legal sex change form isn't really as clear about this requirement as it could be, so we can easily forgive Illiana. Nevertheless, the requirement to send in the old certificate is reasonable (chalk it up to security). To the registrar's credit, rather than requiring Illiana to fork over cash for a replacement only to remail it back for destruction, the customer service rep advised her instead that she need only include a letter explaining that she isn't in possession of a birth certificate. Fair enough, lesson learned, she can re-submit her application and move on. Right? Not so much.
Turns out there were other "problems" with Illiana's application, revealing some previously unknown and gravely troubling barriers for Trans* persons trying to access this process.
"(The) next topic was that I didn't include a physician's letter," explains Illiana. The letter Illiana did include was written not by her medical doctor, but by her psychologist. It was therefore unsuitable, explained the CSR. What? The application form clearly states "A letter (on the medical professional's letterhead) signed by a practicing physician or a psychologist (including a psychological associate) authorized to practice in Canada."
Illiana explains, "(the CSR) said this had to be on letterhead of a physician certified by the college of physicians and surgeons Ontario." Unfortunately, the College of Physicians and Surgeons of Ontario does not certify psychologists; that would be a job for the similarly named, but distinct, College of Psychologists of Ontario.
This issue may have been simply due to miscommunication. However, best case, the rep is just confused, but is incompetently providing misinformation to Trans* clients. Worst case, the application form is actually erroneous, and a psych letter won't get your application through the process.
Admirably keeping her wits about her, Illiana pointed out the discrepancy to the CSR. "Nowhere is that criteria stated on the Service Ontario website... and the application form clearly states... psychologist (is acceptable)." Of the CSR's reaction, Illiana had this to say: "She seemed to relent, and I'm not sure whether she was trying to purposely mislead me, or she had no idea what the form read, or what psychology is."
Based on my own experiences with government bureaucracy, I find it most likely that the rep was simply in error... however, Illiana's reaction underscores the fundamental truth: Trans* people have little motivation to trust agencies of federal and provincial governments which - have - consistently - failed - them - at - almost - every - turn.
But wait, there's more.
That was not the only problem with Illiana's letter, the rep told her. In addition to the misunderstanding as to whether or not a psychologist's letter qualifies as a letter written by a "doctor or psychologist," apparently the registrar also disapproved of the particular phrasing in Illiana's letter. She explains, the rep told her "the letter isn't accepted without an explicit statement that the birth certificate change is 'male to female.' The Registrar rejected (my psychologist's) letter... because it only said that the birth certificate sex designation is incorrect as it is, and should be changed."
Really? The published guidelines given to Trans* people on the Registrar website, and on the application form itself, state that the text of the doctor or psychologist letter "c. confirms that the applicant's gender identity does not accord with the sex designation on the applicant's birth registration; and d. is of the opinion that the change of sex designation on the birth registration is appropriate." Illiana says her psychologist wrote "...the birth certificate sex designation is incorrect as it is, and should be changed." And the registrar's office canned it because it didn't use the magic words "male to female," a requirement which is not published anywhere.
Infuriatingly, Illiana further reports "(the CSR) also said that several other applications such as mine have been similarly rejected."
Are you kidding me, Registrar General? Since the Ontario registrar does not recognize non-binary identities, one wonders what could possibly be the source of confusion here. Especially given that the separate Statutory Declaration form, which must also be submitted in the same package, is explicitly filled out by the applicant with a request to change sex designation "from (fill in blank) to (fill in blank)". Illiana's read "male" to "female," and her existing birth record read "male," so it's not as if there was any potential for misunderstanding.
Regarding the entire debacle, Illiana suggests "I have doubts that the current published criteria are understood by the Registrar's office staff, and since they reject complete applications based on unpublished criteria, (they) are not honoring the ruling of the tribunal in good faith." Hear, hear.
Some clarity, and a post-nonsense happy ending for Illiana? Illiana is to be commended for challenging the transphobic discrimination she experienced at the hands of the Registrar's office. Whether it was caused by wilfully disruptive anti-trans staff, or perhaps just institutional ignorance, it is unacceptable regardless. Because Illiana had the courage to follow-up with a challenge, she was contacted soon afterward by the Deputy Registrar, Sandra Leonetti.
"She was very nice and explained that they are in a learning mode with regard to the new requirements, and I should resubmit the package with a letter stating that I don't have the long form birth certificate, and with the psychologist's letter that accompanied the original application."
That is a bit of good news for Illiana... As for anyone else who has had their application rejected under murky circumstances, you might want to get in touch with the Office of the Registrar General.
"After talking with Ms. Leonetti, I feel that she is sincere about providing fair service, including Changes of Sex Designation applications. I feel that not all people in the Registrar's office are up to speed on everything to do with the new process. I expect that things will improve with regard to application processing as the people in that office get better acquainted with what is really required."
It is a shame that the "learning process" at the Registrar's office has come at the expense of Ontario Trans* people. Let us hope that they get their staff training issue under control.
Have you had a similar problem? Anyone who would like my help, or who has a story they'd like to share, please contact me.
 Sheila Gilhooly has published a fabulous new book, "Mistaken Identity" , stories about her life being (mis)taken for a man. Though cisgendered Sheila is read as male about 70% of the time.
The stories are chilling, hilarious, triumphant.
There will be a launch at Little Sisters - we'll keep you posted. And the book is available for preview - go to Sheila's website
http://sheilagilhooly.wordpress.com, and click at the bottom of the page.
Full disclosure: I am Sheila's partner and wrote the afterword.
 Immigration Canada believes that there are "thousands" of fraudulent marriages between Canadian citizens or permanent residents and non-Canadians, and so they are tightening the rules.
Effective immediately, you are allowed to "sponsor" your spouse - defined to include your married partner, someone you have been living with for two years (a common law partner), or someone you are unable to live with because of the laws or social context in your respective countries (for example, consider a Muslim from Iran who is in a relationship with a Canadian: the two cannot live together as spouses in Iran; and Canada may deny a visitor visa).
But now, says Canada, there are two new requirements. According to Jason Kenney, these new requirements are designed to stem fraud arsing out of fraudulent relationships in which a couple marries solely for the purpose of bringing the non-Canadian to Canada, sometimes for a fee.
The first requirement relates to you only if when you made your application for spousal sponsorship, you had NOT been living together for two years AND you have no children. In that situation, the law now requires that you live together for two years after you come to Canada. The rule makes an exception if you are in an abusive relationship. In that case, you should go immediately to your doctor, and report the abuse so it is on record. Then you should go to a lawyer, or call Immigration Canada, and explain why you have moved out.
The second requirement is that once you are yourself sponsored as a spouse, you cannot sponsor anyone else as your spouse till five years have passed from the date you acquired permanent residency.
VietNam's justice minister recently proposed legalizing same sex marriage, which would make it the first Asian country to extend marriage rights to queers. Vietnam's first Pride Parade, with about 100 people, happened without incident, though the parade organizers did not try to get official permission for the event.
Immigration Canada denied Leatitia Nanziri's claim for refugee status because they don't believe she is a lesbian. Nanziri fled Uganda when she was outed by her girlfriend's father. Lesbians in Uganda are often stoned to death.
The Refugee Division refused her claim because she was carrying a child when she arrived: a product of having been raped. Then they turned down her claim to stay in Canada on compassionate grounds because she had a second child in Canada, with a man.
Canada doesn't understand that if you live in a repressive country you may hide your sexual orientation; you may have a heterosexual marriage. And just like many Canadian lesbians with a husband and maybe children in their past, Ugandan lesbians may marry...and still be lesbians.
It is deeply distressing that Nanziri will be going back to Uganda to face the possibility of death for being queer, when Canada, a country that styles itself as supportive of queers, has sent her there.
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