Category: Transition

Happy Pride: And a Word about Trans* Rights

8/4/2014

It is Pride Week in B.C. Many people are talking about the accomplishments so far, and what remains to be done. This post is about the current situation for trans* human rights.

Here's the skinny: we've already got trans human rights, even though human rights laws have not been changed to include 'gender identity' or 'gender expression' federally or provincially. While the fights for explicit human rights protections for trans* people are important, trans* people are already protected.

But how can that be?

The answer is that trans* people have won all the cases they have fought so far, federally or provincially, by relying on the ground of 'sex'. That has been true for almost 20 years.

Now, all of those cases have been brought by people who have transitioned or intend to transition: there are no cases so far in which the complainant says 'I am neither male nor female'; or 'I am cisgender but I am consistently misgendered'. However, some of the cases (including the first one in B.C.) concern pre-op trans* people. And there is no easy way for the law to distinguish between a preoperative trans* person on the one hand, and a gender variant person on the other. (Think about it: may take hormones, or not; does not experience themselves as the birth-assigned gender; may have surgery, or not; may experience transphobic discrimination...all true both of people who may be intending to transition to the "other" gender, and gender variant or gender non conforming people who do not).

So in my opinion it is virtually certain that gender variant and gender nonconforming people will be also able to advance successful human rights complaints on the ground of 'sex' if they are discriminated against.

So if that is the case, why do we need to change federal and provincial laws about human rights? As you know, one of the things on the queer still-to-do agenda is the inclusion of 'gender identity' in the federal and provincial human rights laws. The federal bill to amend the Canadian Human Rights Act is currently stuck in the Senate. Though that bill began with expanded language to cover both gender identity and gender expression, in its current form it will add 'gender identity' only to the list of protected grounds (along with sex, race, ancestry, place of origin, religious belief, physical or mental disability, etc).

In B.C. there has been no movement on adding 'gender identity' to the BC Human Rights Code to date. And there is no sign that the issue is on the legislative agenda.

Calling for changes to the human rights laws to SPECIFICALLY cover trans* folk performs an enormously important public education service. It also means that trans* people looking at those laws will be able to see immediately that they are protected from discrimination, rather than having to figure out that they will win if they use the ground of 'sex'. So those campaigns are enormously important.

But...there can be a downside: trans* people may believe that UNLESS 'gender identity' and/or 'gender presentation' are added to human rights legislation, they have no rights.
That would be a terrible result.

So: HAPPY PRIDE, and here's a toast - both to laws that specifically name trans* people, and to the fact that we can already fight discrimination against trans* people. When you are talking about and advocating for changes to human rights law, don't forget to mention that trans people already have protections.

Here's a link to our booklet, "Trans Human Rights".

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Gender identity and sentencing in criminal law

5/12/2014

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By Dorianne Mullin (reprinted with permission)

Is gender identity considered in criminal sentencing? It certainly was in the recent case of R. v. MacDonald, 2013 NSSC 255. In this case of “house sitting gone awry,” Jesiah MacDonald, a 25-year-old transgender man, was the caretaker of a house. That in itself was no crime; however, part of his job was to care for and water the 46 marijuana plants in the house. When a search warrant was executed on the home, he was charged with production of marijuana contrary to the Controlled Drugs and Substances Act, which carries a maximum sentence of 14 years in prison. Mr. MacDonald entered an early guilty plea, and immediately divulged the name of the owner of the premises. He also had significant community involvement, no criminal record, and there was evidence that he used marijuana to combat the effects of Crohn’s disease.

Part of Mr. MacDonald’s motivation for committing the crime, as was noted in the decision, was to pay for sex reassignment surgery, which was not covered in Nova Scotia at the time. (That changed in June of 2013 when Nova Scotia became the eighth province to fund sex reassignment surgery.) The crown sought 30 days of incarceration and a term of probation; the defence sought probation and a fine.

In sentencing Mr. MacDonald, Nova Scotia Supreme Court Justice Nick Scaravelli considered the purpose and principles in sections 718 to 718.2 of the Criminal Code which require weighing principles such as deterrence and denunciation with the gravity of the offence and the rehabilitation of the offender. Justice Scaravelli indicated that, absent unusual circumstances, sentences for even first-time offenders in such cases usually resulted in conventional jail time, or a conditional sentence (which was no longer available). Appropriately (and thankfully for Mr. MacDonald) Justice Scaravelli found that there were unique circumstances in the case:

Transgender people who are sentenced to federal institutions are discriminated against from the outset — they are assigned to an institution based on their anatomy, rather than identity.

“I do not doubt that changing one gender’s identity is a life-altering and difficult process. The offender is a member of the trans gender community. The offender’s motive for committing the offence directly relates to the process of changing gender. The offender made a poor choice in attempting to achieve that goal.”

Justice Scaravelli also found that incarceration could result in difficulties for Mr. MacDonald as a transgendered person. In light of all of the circumstances, Mr. MacDonald was sentenced to probation and a fine.

This case raises the question of whether gender identity is a consideration in sentencing. Some research of reported Canadian decisions revealed five cases in which transgender identity was mentioned in some regard, and two cases (in addition to Mr. MacDonald’s) where it seems to have been a significant consideration. Of course, this research did not reveal how often it was not considered in reported decisions, or whether it was considered in unreported decisions. Even still, seven cases seems low considering that a U.S. statistic has reported that 16 per cent of transgender people have been incarcerated at some point.

One case that gave due consideration was R. v. Tideswell, [1997] O.J. No. 374. The offender in this case was sentenced for break and enter, theft of a motor vehicle with a knife, harassment and a variety of other charges. The Court noted that the incidents arose prior to the accused’s sex reassignment surgery, and that since the surgery, her behaviour stabilized. In sentencing the accused to 18 months incarceration, the Court also found that, given the accused’s gender identity, “…extended imprisonment in the subculture of a Federal Penitentiary would constitute punishment well beyond imprisonment.”

Unfortunately, this statement is all too accurate. Not only do transgender people face more discrimination and higher rates of abuse and violence while incarcerated, transgender people who are sentenced to federal institutions are discriminated against from the outset — they are assigned to an institution based on their anatomy, rather than identity. Correctional Services’ Health Services Policy states that, “Pre-operative male to female offenders with gender identity disorder shall be held in men's institutions and pre-operative female to male offenders with gender identity disorder shall be held in women's institutions.” It seems that to Corrections Canada, it does not matter how you identify, rather it is but how you look that determines where you are placed. A frightening prospect for those whose gender identity does not match up with their anatomy.

A case in point was the situation that Avery Edison recently found herself in. Ms. Edison, a U.K. comedian who had overstayed a prior student visa in Canada, was detained by Canada Border Services when she attempted to re-enter the country. Despite being legally identified as female in her U.K. passport and identification, she was initially detained in a male-only facility while awaiting her inadmissibility hearing because she was pre-operative and still had male genitalia. She tweeted the experience as officials were trying to figure out where to place her, and, thanks to social media, an international outcry erupted when she was sent to a male facility. After about 17 hours, she was transferred to a female institution before being allowed to fly home following an admissibility hearing.

So while cases like R. v. MacDonald can be lauded as a victory for transgender rights, situations such as Ms. Edison’s serve to highlight the need for further reform.

Triangle [the publication of the Sexual Orientation and Gender Identity Conference of the Canadian Bar Assocation] co-editor Dorianne Mullin is a lawyer with the Nova Scotia Department of Justice

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Trans people can change birth certificates without surgery; children can change gender markers, new Bill says

3/10/2014

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The B.C. government today passed first reading on a bill which will permit trans people to change the gender marker on their birth certificates without surgery; and will enable children to change their gender markers.
This is a disappointing half measure. It is of course exciting that trans people can now have their gender changed by a simple declaration of their affirmed gender confirmed by a doctor or a psychologist.

But the government missed the opportunity to correct the pain and vicious discrimination that gender variant and intersex people experience. Though the government has made it easier to change gender, it has maintained the oppressive gender binary: everyone has to have either an M or an F.

It is hard to understand why the government did not simply cure the discrimination experienced by all trans people by taking gender markers off birth certificates. They could have done so while still collecting information about which babies were born with apparently-male genitalia and which were born with apparently-female genitalia, on the registration of birth forms.
Harriette Cunningham, an 11 year old transgirl in Comox, currently has a human rights complaint pending with respect to birth certificates, to have gender completely removed. That complaint is set for mediation in May. If mediation fails, the matter will be referred to a hearing at the B.C. Human Rights Tribunal.
Stay tuned!
The complete text of the proposed amendment can be found here.

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Trans child wins against school board in Colorado

10/21/2013

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A Colorado first grader suceeeded in a human rights case against the school district. The school board had refused to permit her, a transgirl, to use the girls' washroom, pointing her instead to a gender neutral washroom in the nurse's office. for the full story:
The result would be the same in B.C. Even though 'gender identity' is not included in the B.C. Human Rights Code, trans people have been winning all their cases on the ground of 'sex' .

Some Catholic school boards in B.C. refuse to permit trans children to live in their affirmed gender, arguing freedom of religion. Tracey Wilson, age 9, is challenging their position.

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Trans Parent-cy

8/2/2013

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To read a recent Ontario decision about the right of a trans parent to see her children, go to H.P. v P.L.C.
In that case, a transwoman was denied permission to see her children at all.
It was eight years since she had last seen her bio-children, conceived before her transition. During that eight years, she had been convicted of sexual assault on her wife and spent time in jail, where her gender dysphoria was diagnosed and she began her transition. Her ex-wife had divorced her and remarried.
Despite having an extremely low risk to reoffend, and despite having several glowing letters of support including one from her former father in law, the judge refused to let her see the children.
On the one hand, the judgement rests on standard considerations: the time since she had seen her children, the fact that she had let that time go by without trying to see them; the fact that the children didn't remember her. On the other hand, the judge's attitude to trans people suffuses the judgement.
Read the case and decide what decision you would have reached if you were the judge.

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Happy Pride: And a Word about Trans* Rights

Gender identity and sentencing in criminal law

Trans people can change birth certificates without surgery; children can change gender markers, new Bill says

Trans child wins against school board in Colorado

Trans Parent-cy

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