If a couple creates an embryo, and separates before the embryo is implanted in the woman, who owns the embryo?  The woman? Or her husband? Or both?

An Ontario couple purchased eggs and sperm from a U.S. source (it is illegal to buy or sell eggs, sperm or embryos in Canada). Two viable embryos were created through in vitro fertilization at an Ontario fertility clinic.

One of the embryos was implanted, and the couple had a son.  But eight days after the son was born, the couple broke up.  The wife and husband each claimed ownership of the embryo.

The court looked at the agreement the couple signed at the fertility clinic, which specified that "the patient's wishes" would be respected in the case of a divorce.  The "patient" was the wife. 

The husband argued that he should be the owner, because he had paid for the procedure, and because the consent form they signed in the U.S. should 'trump' the one they signed at the fertility clinic.  

The court held for the wife, who is planning to use the embryo to create another baby.  

The case is precedent-setting because the court considered that the embryo, which was genetically unrelated to either party, is property.  

​The moral of the story is to consider these questions before embarking on a fertilization project.  

The case is called SD v DH 2018 ONSC 4506

In a Canadian first, a Newfoundland and Labrador court recognized all three adults in a poly relationship as parents of their child.

The case concerned a poly family composed of two men and one woman.  The woman in the trupple (three person poly relationship) gave birth to a child.  The family did not know which man was the father
The law in Newfoundland did not recognize more than two parents.  The judge said that there was a gap in the 30-year-old legislation, because it didn't consider poly families.  The judge said it was in the best interests of the child that all three of the child's parents be recognized under the law.

This case is a significant development for poly families.  In the last couple of decades, parenting cases were mostly about the recognition of same sex parents .  In a 2007 Ontario case, a lesbian couple had a child which was born from a sexual relationship between one of the mothers and a male friend.  In that case the court held that both of a child's mothers were parents along with the child's father.  But in that case the three parents did not live together and were not in a continuing poly relationship.

In B.C., the law does provide for the recognition of three parents where there are two people and a donor of genetic material, if everyone agrees.  But the law makes no general provision for the children of a trupple.  So the same logic would apply to a B.C. case: there is a gap in the legislation, and all three adults in the trupple should be recognized as the parents of a child born to them.

Parents who already have children when they form a trupple cannot be legally recognized as 'parents' of their collective children, though if the trupple later broke up a court could find that it was in the best interests of the children to spend time with each of the parents.  

It is theoretically possible for a court to order that all the parents in the trupple are guardians of the children (giving them most of the rights of a parent, including the right to decide a child's medical care).   Or a trupple in that situation can make an agreement with each other which confers emergency guardianship on each parent with respect to all the children.

Polygamous families - more than two married spouses - are illegal in Canada, but polyamorous families - where more than two people are in conjugal relationships with each other - are not illegal.  

For more information about polyamorous families, read John-Paul Boyd's article.

What is between one's legs is nobody's business.

That is the essence of a recent ruling by the BCHRT, in the case of Oger v Whatcott.

When Morgane Oger, a transwoman, ran for office Bill Whatcott distruted hundreds of flyers claiming she was unfit because of her gender identity.  Whatcott's flyers described Oger as a "biological male who has renamed himself...after he embraced a transvestite lifestyle" ; described being transgender as an "impossibility" which exposes people to harm and constitutes a sin.
Oger filed a complaint with the tribunal, alleging that Whatcott's flyers are hate speech within the meaning of the Human Rights Code.

That case is set to be heard in September.

Whatcott made an application to require Oger to disclose her birth certificate and medical records, and to compel her to have an independent medical examination.  He claimed that Oger has the burden to prove she is protected by the ground of "gender identity" and that his applications were relevant to that issue. 

In a strong decision, the Tribunal held that Oger was not required to produce her records, or have a medical exam.  The Tribunal member said:

              "...Mr. Whatcott's requests are overly intrusive into Ms Oger's privacy and not at all relevant for the disposition of this complaint.  Furthermore, the basis for the requests is questionable insofar as they are premised on Mr. Whatcott contesting that Ms Oger is a transgender woman.  That fact is the very foundation of his publications concerning her fitness for office.

             This complaint is not about Ms Oger's medical records or the personal circumstances underlying her gender identity.  Nor, as I have said, is this Tribunal a forum for Mr. Whatcott to defend the truth of his convictions...Her identity is hers alone, and the Legislature has expressly chosen to recognize it and confer protection on her by the inclusion of "gender identity and expression" as a protected characteristic in the Code."

This case sets a wonderful precedent for any trans folk who do not want to provide evidence of their gender.  It says that the person's assertion of their gender identity is enough:  no birth certificate required, no medical records are relevant.

Stay tuned for the case itself in the fall.  

The Government of Canada is havng a consultation to explore "new approaches to the collection, use and display of sex and gender information in order to be more inclusive of gender diverse communities".  The Vancouver Consultation is February 13 from 1pm to 4 pm.

I have responded to the very-late-sent invitation to say that I will attend with approximately 20 trans folk.

Would any trans folk who want to attend please email me as soon as possible to bjf@barbarafindlay.com, including your full name, pronoun, and any accommodation needs.  I'll send the information on.

Since they say the "deadline" to register is January 31, the sooner you can email me the better!

Hoping to see a wide range of trans people at the meeting!
​

The Ontario Court of Appeal decided last Wednesday that parents do not have a right to withdraw students from classes on the basis of their 'freedom of religion' .

In the case, called Sharpe et al v Hamilton-Wentworth School Board , a Greek Orthodox parent had requested that he be notified and his children removed from instruction about a broad number of topics, in particular education about sexual orientation and gender identity.

The Education Act in Ontario provides in part:
169.1  (1)  Every board shall,
         (a)   promote student achievement and well-being;
         (a.1)   promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability;

The school policy based on that section of the law says:
​
Students are to be provided with learning materials that are bias-free and that reflect the diversity of the school’s population, including diversity of sexual orientation and gender identity. A central feature of the Policy is that diversity, anti-discrimination and anti-homophobia are not taught in stand-alone lessons but rather are fully integrated into the curriculum so that acceptance of difference becomes routine. For example, teaching materials for a lesson in mathematics might feature children with two fathers or two mothers. In this way, all courses are infused with equity principles and teachers are directed to ensure that all students—including lesbian, gay, bisexual, transgender, transsexual, two spirited, intersex, queer and questioning people—will, in the words of the EIES, be “engaged, included, and respected, and … see themselves reflected in their learning environment”.

The School Board's evidence was that topics like sexual orientation and gender identity were not taught solely in discrete units in, for example, a health curriculum but were integrated throughout the school's curriculum. So a unit on math, for example, might refer to same sex parents.

The Ontario Court of Appeal - the highest court in Ontario, and a very influential court nation-wide, said that Mr Sharpe's freedom of religion was not affected...first, because he could point to no actual instruction that offended his religion, and second because parents can't insist that students not be taught equity and inclusion on the basis of freedom of religion.

The court said:
 E.T. cannot, by virtue of his religious beliefs, insist that a non-denominational public school board restructure its inclusive and integrated program, designed to meet its statutory objective of ensuring a respectful and accepting climate for all children, so that he can ensure that his own children are not exposed to any views that he does not accept. Nor do I accept E.T.’s suggestion that the Board could or should ensure that discussion of matters such as sexual orientation and gender identity are discussed purely as matters of fact rather than as matters of “value judgment”. The Board has a statutory mandate to provide an inclusive and tolerant educational environment, one that respects the principles of equality enshrined in s. 15 of the Charter. Equality, inclusivity and acceptance of difference are values, not facts, and it is unrealistic to expect teachers to provide a learning environment that is truly welcoming to all students in a value-free manner.

This is a great decision in the ongoing battle between the Charter-protected right to freedom of religion and the Charter-protected right to equality.  

​From the Office of Randy Boissonnault

As you may be aware, the Prime Minister of Canada has committed to issuing an apology to LGBTQ2 people living in Canada, their families, partners, and communities for discrimination and unjust treatment as a result of federal legislation, programs and policy. This process includes addressing the painful history of discrimination against LGBTQ2 communities and the federal role in it – including transmasculine individuals and all those living in Canada who identify as two spirit, transgender, and gender non-binary.

In my role as Special Advisor to the Prime Minister on LGBTQ2 issues, I am leading these efforts to ensure that advice to the Prime Minister on the apology is as inclusive as possible. To ensure that this apology properly addresses the wrongs faced by LGBTQ2 communities, the government is engaging LGBTQ2 communities in various ways. This includes solicitation of input from community organizations and individuals as well as the creation of an Advisory Council.

As a part of this process, Dr. Aaron Devor has graciously offered to facilitate outreach with transmasculine individuals. It is important that the process meaningfully incorporates input from transmasculine people – you are integral to LGBTQ2 communities, but the ways in which you have been and continue to be affected by federal legislation, programs, and policy may be distinct. I invite you to reflect on your experience and expertise, and reach out to others in your communities.

To assist with your reflection and potential outreach, we are providing the following four questions as a framework for what kind of information the government is seeking:

1. From your perspective, why should the Government of Canada apologize to LGBTQ2 people living in Canada?
2. Are there specific examples of wrongs that you feel should be addressed?
3. What actions can the Government undertake in order to promote awareness of the issues LGBTQ2 people have faced and foster understanding going forward?
4. What can the Government do to demonstrate ongoing commitment to promoting equality for LGBTQ2 people?

Rest assured that this is only the start of our intention to engage you and your communities as we move forward with the Government’s LGBTQ2 agenda. In the meantime, thank you for your input and engagement. Please forward any input to my LGBTQ2 Liaison, Mathew Thomson, in my office at: Randy.Boissonnault.A2@parl.gc.ca

Many thanks,
Randy Boissonnault, MP Edmonton Centre
Special Advisor to the Prime Minister on LGBTQ2 Issues

A Botswana court has ruled that a transman must have identification reflecting his gender identity.  It is the first case of its kind in the African country.
The court ruled that preventing the plaintiff (who is unnamed in the case) from having identification matching his gender identity is a breach of the country's constitution.  
Though homosexuality is not per se illegal, homosexual acts can be punished by up to 7 years in prison, according to NBC News.  

Canada has just announced more changes to the rules governing citizenship, rolling back some of the restrictions imposed by the Conservatives.
The government had implemented some changes in June, including repealing Harper's law which enabled Canada to remove Canadian citizenship from someone who had dual citizenship.  At the same time, the requirement that an applicant for citizenship declare that they were intending to live in Canada was removed, and stateless individuals can be granted Canadian citizenship on a discretionary basis.
The change which come into effect on October 11 make it easier to get citizenship.  One needs to spend only 3 of 5 years in Canada to qualify, down from 4 years out of 6.  
Residency requirements for citizenship has been made more flexible.  Applicants used to have to be physically present in Canada for 183 days in four out of the six years preceding their application. That is no longer the case.
And now permanent residents can count as qualifying time some of the days they spent in Canada before they got permanent residence.  
Canada permits its citizens to hold dual citizenship. Some countries do; some don't.  (The US does).
There is a real advantage in having dual citizenship in these politically perilous times.  

This post won't apply to many of you.

But for those it does apply to, it is a lifesaver.

If your non-Canadian partner is living in Canada but does not have status, you can now apply for them, inside Canada, for permanent residence.
​
And if you have applied for permanent residence, but your status has expired (e.g. because you overstayed a visitor visa) you are not disqualified from getting permanent residence.

In plain English:
It used to be the case that, in order to apply inside Canada, a person had to be "in status" (usually as a visitor) both at the time they submitted the application and at the time the application was processed.  

No longer.
You can apply if you are in Canada and lack status, for example if you
- have overstayed your visa, visitor record, work permit or student permit; or
-you have worked or studied in Canada without a work or study permit; or
- you have entered Canada without a required visa; or
-you entered Canada without a valid passport or travel document

If you entered without a valid passport, you can apply for PR, but you must have a valid passport by the time the PR application is processed.

So, for you couples who have been hiding in the shadows because of fear of Immigration, you no longer have to hide.

NOTE this policy applies ONLY if one partner is a Canadian.  You have to fulfill all the other requirements - ie be married or have lived for a year as common law partners.  

You can get more information from LEGIT, the Lesbian and Gay Immigration Task Force.  They meet monthly; call Qmunity for information.