Category: Transsexual

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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Remember the Charter of Rights? Not so fast...

9/14/2013

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The Canadian Charter of Rights and Freedoms, enacted in 1982, has become a cultural touchstone, guaranteeing that Canada is a place of freedom, respect, and equality.
Right?
Two events this week underscore the Charter's weaknesses. The first is an . underreported court case in Ontario, Tanudjaja v Canada. In that case, a coalition including B.C.'s Pivot Legal Services argued that the Charter imposed an obligation on the federal and provincial government to ensure that affordable, adquate and accessible housing is available for all Ontarians and Canadians. The coalition argued that section 7 of the Charter, a guarantee of of "life, liberty, or security of the person" imposed that obligation.
The case was thrown out as soon as it was filed, before any evidence was heard. The court said that the Charter imposes no positive obligation on governments to do anything. If the government gets into the affordable housing business, it must do so in compliance with the Charter which among other things guarantees equality. But the government has no obligation to get into the affordable housing business if it doesn't want to.
So your 'right' as a Canadian to "life...and security of the person" doesn't include the right to eat, or be sheltered.

The second event - this one all over the news - is Quebec's intention to introduce a "Charter of Values" which would prohibit the wearing of some religious symbols (all except Catholic crucifixes, in fact) if you work in the public sector - government, hospitals, educational institutions.

This law does contradicts the guarantee of 'freedom of religion' and the guarantee of 'freedom of expression' in both the Canadian Charter of Rights and Freedoms and Quebec's own Charter of Rights and Freedoms.

Courts have consistently upheld the rights of religious minorities: for example in Multani, a affirming that Sikh boys could wear kirpans (a religious symbolic metal knife worn under clothing) to school; and in Amselem, permitting Jews to erect succah, a small ritual dwelling, on their balconies notwithstanding a rue of the luxury condo where they lived that prohibited balcony structures.

Queers have objected, unsuccessfully, that 'freedom of religion' should not be a licence to discriminate against queers just because they 'sincerely believe' that being queer is a sin. In Trinity Western, for example, queers lost an argument that the Christian College should be refused accreditation as a teacher's college because it required all students to sign a contract agreeing not to engage in sexual 'sins' including homosexuality.

So it seems obvious that Quebec's 'Charter of Values' would be thrown out because it contravenes the Charter of Rights. Because the Charter of Rights is part of the Constitution of the country any other law that conflicts with it can be declared null and void.

Right?

Not necessarily.

The Quebec government can throw in a 'notwithstanding' clause. Any government is permitted to enact a law which they know contradicts the Charter of Rights if they include a section that says the law is valid notwithstanding the Charter. If the 'notwithstanding' clause is included, the Quebec Charter of Values would be good for five years, after which it would have to be reenacted. Governments have to think twice about using the notwithstanding clause, because they know that every five years they will have to pay the political cost of enacting a Charter -violating law.

We queers must stand firmly with the religious minorities in Quebec, even though 'religious freedom' is often pitted against queer rights. Because what is at stake is our country's very soul. Unless we all recognize that conflicts among rights - religious freedom and queer rights, or any other conflict - must be settled by the courts, we will inevitably end up with the shameful spectacle of governments enacting legislation designed to hurt minorities just to get votes. And when that day comes, we will be among the minorities targeted for legislated bigotry.

The Canadian Charter of Rights and Freedoms is deeply flawed because it does not even pretend to address the worst inequalities among Canadians - the inequalities created and perpetuated by poverty. And the Charter is fragile: if ever it becomes politically acceptable to tack the 'notwithstanding' clause onto any piece of legislation which is currently in favour, all of our Charter rights will succomb.

But, as minorities of any kind - sexual, racial, religious, disabled, immigrant, women (though not a minority!) the Charter is all we've got.

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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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Could it happen here?

4/19/2013

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A lesbian phys ed teacher was fired after 19 years when the Catholic school board she worked for found out she was a lesbian.

The teacher worked in Columbus, Ohio. Her sexual orientation came to light after her mother's obituary mentioned her female partner. After a complaint from a parent who read the obituary, the diocese fired her, saying she had "violated the school's moral policy".

Could it happen in B.C.?

Shockingly, the answer is 'yes'. Though such treatment is discriminatory, the Catholic employer gets off the hook under a provision in the B.C. Human Rights Code which exempts non-profit groups who exist to serve people on the basis of their race, religion, gender, sexual orientation etc (any ground protected under the Code) from complying with human rights laws.

That's how Rape Relief is able to exclude transsexual women. We are a non-profit, we are here to serve women, so we are free to discriminate if we want to, they argued. They won.

So too did the Catholic Church win in a 1983 decision in which they fired a school teacher (heterosexual) because she was living with a partner outside of marriage. The Supreme Court of Canada said that the provision of the Code gave them a licence to discriminate.

The provision of the Code was intended to prevent men from complaining that they can't get services from women's groups, or non native people from complaining that they can't get service from an aboriginal friendship centre, for example. But it is jaw-droppingly wrong that such organizations are entitled to discriminate among the population they exist to serve.

Under the law as it is written, a disability rights group could turn away someone with AIDS; a women's group could exclude women of colour...the list goes on.

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Trans Rights Bill Passes In House of Commons

3/22/2013

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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

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Trans Legal Defense and Education Fund sues Colorado School

3/1/2013

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In British Columbia, some public schools do and some do not accommodate trans youth. Roman Catholic school system does not, though this is currently being challenged in a human rights proceeding.

This report from the Transgender Legal Defence and Education Fund:
Complaint Alleges Six-Year-Old Transgender Girl Denied Access to Girls' Bathrooms at School

TLDEF today announced that it has filed a complaint with the Colorado Civil Rights Division on behalf of a 6-year-old girl who has been barred from using the girls' bathrooms at her elementary school. For the past year, Coy Mathis, a first-grader at Eagleside Elementary School in Fountain, CO, has used the girls' bathrooms. In mid-December 2012, the Fountain-Fort Carson School District 8 informed her parents that Coy would be prevented from using the girls' bathrooms after winter break. The District ordered Coy to use the boys' bathroom, a staff bathroom, or the nurse's bathroom.

Coy was labeled male at birth, but has always known that she is a girl, and has expressed this since she was 18 months old. Since kindergarten, Coy has worn girls' clothing to school. Her classmates and teachers have used female pronouns to refer to her and she has used the girls' bathrooms, just like any other girl in her school.

The Colorado Anti-Discrimination Act prohibits discrimination against transgender students in public schools. Despite efforts to get the District to reconsider its decision, it has refused to do so. Coy's parents have removed her from school and are home schooling her until this Complaint is resolved.

"We want Coy to have the same educational opportunities as every other Colorado student," said Kathryn Mathis, Coy's mother. "Her school should not be singling her out for mistreatment just because she is transgender."

"By forcing Coy to use a different bathroom than all the other girls, Coy's school is targeting her for stigma, bullying and harassment," said Michael Silverman, TLDEF's executive director, and one of Coy's lawyers. "Through the Colorado Anti-Discrimination Act, Coloradans have made it clear that they want all Colorado children to have a fair and equal chance in school," he added. "Coy's school has the opportunity to turn this around and teach Coy's classmates a valuable lesson about friendship, respect and basic fairness."

"We have five children and we love them all very much," said Mrs. Mathis. "We want Coy to return to school to be with her teachers, her friends, and her siblings, but we are afraid to send her back until we know that the school is going to treat her fairly. She is still just six years old, and we do not want one of our daughter's earliest experiences to be our community telling her she's not good enough."

In addition to TLDEF, the legal team representing the Mathis family includes Michael Flynn, Lucy Deakins, Jami Mills Vibbert, and Rosario Doriott Dominguez of Fulbright & Jaworski L.L.P.

For the latest information on Coy's case, including upcoming media appearances, please follow us on Twitter and "like" us on Facebook. We'll be posting the latest information there first.

Click for a slideshow of Mathis family photos.

Please donate today to help us fight for Coy's rights and the rights of children like her. Your support is critical to achieving a victory for Coy and transgender people everywhere.

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No to Hate Speech about Queers, says Supreme Court of Canada (but...)

2/27/2013

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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.

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Choosing Children/Making Parents: The Family Law Act and Assisted Reproduction Technology

2/11/2013

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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.

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