Transgender rights in Canada

Transgender rights in Canada, including procedures for changing legal gender and protections from discrimination, vary among provinces and territories, due to Canada's nature as a federal state.^[1] According to the 2021 Canadian census, 59,460 Canadians identify as transgender.^[2] Canada was ranked third in Asher & Lyric's Global Trans Rights Index in 2023.^[3]

Government identity documents

There are two main routes to changing one's legal gender in Canada: the Immigration (or 'federal') route, and the Vital Statistics (or 'provincial/territorial' route). Of note is the distinction between 'legal gender' and 'gender marker'; a legal gender (also commonly referred to as a sex designation; sex indicator in Nova Scotia)^[4]^[5] is what appears on foundational identity documents such as immigration status documents and birth certificates, whilst a gender marker can appear on a non-foundational identity document, such as a driver's licence or photo card. A gender marker usually follows legal gender, but can differ - and a change in gender marker on a non-foundational identity document alone does not provide a trans individual with foundational identity documentation that establishes such a change.^[6]

Four provinces (Alberta, British Columbia, Ontario, and Saskatchewan) and all three territories (Northwest Territories, Nunavut, and Yukon) do not offer anyone not born there the ability to change their legal gender.

Table overview

Jurisdiction	Eligibility	Medical and/or parental consent required?
Federal Government	Yes for Citizens, Permanent Residents, Temporary Residents, Protected Persons and Refugee Claimants	None for adults
Federal Government		Parent or guardian's permission required for minors
Alberta	Yes for persons born in Alberta No for Albertan residents born out of province	None for adults
		Parent or guardian's permission required for youth aged 12–17
		Professional's certification required for youth aged 11 or younger^[7]
British Columbia	Yes for persons born in British Columbia No for British Columbia residents born out of province	None for adults
		Parent or guardian's permission required for youth aged 18 or younger
		Supporting certification from a prescribed professional required for youth aged 11 or younger^[8]
Manitoba	Yes for persons born in Manitoba and Citizens of Canada residing in Manitoba for one year, no for all other Manitoban residents	Supporting certification from a prescribed professional required for all applicants
New Brunswick	Yes for all New Brunswick residents (three months' residency requirement), and New Brunswick-born persons.	Supporting certification from a prescribed professional required for all applicants^[9]
Newfoundland and Labrador	Yes for all Newfoundland and Labrador residents (three months' residency requirement) and Newfoundland and Labrador-born persons	None for persons age 18+
Newfoundland and Labrador		One supporting certification from a prescribed professional required for minors under 16 Two supporting certifications required for minors under 12^[10]
Northwest Territories	Yes for persons born in the NWT, No for NWT residents born out of territory	Partially, supporting certification from a prescribed professional required for minors under 19 (and independent minors between 16 and 18)
Nova Scotia	Yes for all Nova Scotian residents (three months' residency requirement) and Nova Scotia-born persons	Partially, supporting certification from a prescribed professional required for minors 15 and under^[11]
Nunavut	Yes for persons born in Nunavut, No for Nunavummiut born out of territory	No data
Ontario	Yes for persons born in Ontario; Ontario residents born out of province may only change their IDs and not their birth certificates/vital statistics documents	Yes, supporting certification from a prescribed professional required for all applicants; Parent's applying on behalf of their child must get the consent of all other persons with custody and the child, but a person applying on their on behalf does not need parental consent. ^[12]
Prince Edward Island	Yes for persons born on PEI, No for PEI residents born out of province	Yes, physician's certification required^[13]
Québec	Yes for all Québec residents (one year residency requirement) and Québec-born persons	None for persons age 18+
		A medical professional or social worker's letter is required for trans youth under the age of 18; currently under appeal^[14]
		Double parental consent is also required if the youth is under the age of 14
Saskatchewan	Yes for persons born in Saskatchewan, No for Saskatchewan residents born out of province	Yes, psychologist or physician's statement required^[15]
Yukon	Yes for persons born in the Yukon, No for Yukon residents born out of territory	Partially; parental consent required, as well as medical practitioner/psychologist/registered nurse/social worker/lawyer/teacher/First Nations chief or councillor/school counsellor's supporting statement for minors under 16^[16]

Federal

Canadian Permanent Residents, Citizens (born inside or outside Canada), Protected Persons, Refugee Claimants and Temporary Residents may apply to Immigration, Refugees and Citizenship Canada using form CIT 0404: Request for a Change of Sex or Gender Identifier.^[17] Amendment of documents issued by the person's country of birth, former habitual residence, or nationality is not required. Once the person's gender is changed with IRCC, the agency will issue a Verification of Status annotated with the person's change of name (if any) and gender, as a linking document between their Canadian identity and their foreign birth certificate.^[18] Since June 2019, the Canadian passport, citizenship certificate, permanent resident documentation and protected person documentation have offered an "X" option for legal gender.^[19]

In July 2020, Global News reported that the policy of not allowing refugee claimants and temporary residents to change their legal gender was causing harm, especially to asylum seekers. The article cites the case of Naomi Chen (a pseudonym), a trans woman who was born in Hong Kong and holds Chinese nationality and Hong Kong permanent resident status. Chen's HKSAR passport still states her gender as 'male', and consequently she was issued a Refugee Protection Claimant Document by IRCC bearing that gender.^[20]

Chen was not able to change her legal gender in Hong Kong, fearing that her marriage, which was solemnized in Hong Kong, would be terminated (Hong Kong does not allow same-sex marriage). She says she is now afraid of interacting with the community, given the incorrect gender designation on her documents.^[20] In response, Kevin Lemkay, spokesperson for federal immigration minister Marco Mendicino, said that 'reviewing gender identity requirements for government-issued documents a priority'.^[20] Will Tao, a Vancouver immigration lawyer, noted that the restriction was a matter of policy and not law. He contended that the Canadian federal government was potentially committing a violation of Section 15 of the Canadian Charter of Rights and Freedoms, in Tao's own words an issue "ripe for future litigation".^[21]

As of November 2020, refugee claimants are now able to amend the sex indicator printed on their Refugee Protection Claimant Document.^[22] As of March 2021, the same is also now available to temporary residents without the amendment of gender on their country of nationality's passport.^[23] Applicants may also elect to amend their legal gender through a provincial process instead, if this is available to them in their province or territory of residence.^[24]

Alberta

Following a 2014 court ruling that struck down the existing legislation and its surgery requirements as unconstitutional,^[25]^[26] the government of Alberta modified the Vital Statistics Information Regulation in 2015.^[27] The current regulations eliminate the surgical requirement. Instead, the applicant must submit a "statement confirming that the person identifies with and is maintaining the gender identity that corresponds with the requested amendment to the sex on the record of birth," as well as a letter from a physician or psychologist attesting that the amendment is appropriate. Legal change of gender is accessible to minors; this requires the parents' or guardians' consent, although this can be waived by court order or if the minor is emancipated, married, or a parent.^[28]

A legal change of gender through the province is not currently accessible to residents who were not born in Alberta.

British Columbia

In British Columbia, the requirement for surgery to change the birth certificate gender marker was removed in 2014.^[29] A legal change of gender is not accessible to residents who were not born in British Columbia. Non-binary B.C. resident Kori Doty, along with seven other trans and intersex persons, filed a human rights complaint against the province, alleging that publishing a sex indicator on birth certificates was discriminatory. The British Columbia Human Rights Tribunal agreed in 2015 to hear their complaint.^[30] In April 2017, Doty's child, Searyl Atli Doty, became the first in the world to be issued a health card with a "U" gender marker (for 'unspecified'), but the province has refused to issue a birth certificate without specifying a gender. Doty has filed a legal challenge.^[30]^[31] In 2022, British Columbia allowed people to change their gender designation on the province's main government-issued ID (BC Services Card, B.C. driver’s licence, BCID card and B.C. birth certificate) without the confirmation of a medical professional.

A legal change of gender through the province is not currently accessible to residents who were not born in British Columbia.

Manitoba

A change of legal gender in Manitoba is available to persons born there. As of the 1st February 2015, there exists no requirement for trans individuals to have undergone gender confirmation surgery.^[32] Section 25(3) of the Vital Statistics Act of Manitoba further provides that "a person may apply to the director for a change of sex designation certificate if the person is a Canadian citizen who has been a resident of Manitoba for at least one year before the date the application is submitted." This follows the model formerly adopted by Québec (now invalidated by the Superior Court in that province), but is discrepant with Manitoba's own policy for legal changes of name (three months' ordinary residence).^[33] As of July 2020, this provision has been implemented by the Manitoba Vital Statistics Agency.^[34]

As of October 13, 2020, the gender marker on Manitoba driver licenses and photo cards can either be unspecified or marked with an 'X'. This is in response to a complaint lodged at the Manitoba Human Rights Commission by non-binary individuals.^[35]

A legal change of gender through the province is not current accessible to residents who were not in Manitoba nor a Canadian citizen.

New Brunswick

In April 2017, a bill passed the Legislative Assembly of New Brunswick to add gender identity or expression to the human rights laws and to allow gender changes without the required surgery.^[36] A person born in New Brunswick or ordinarily resident there for at least three months may make application to Service New Brunswick for a change of their legal gender.^[37]

Newfoundland and Labrador

Persons born in Newfoundland and Labrador have been able to have the sex indicator on their birth registration changed since the adoption of a new Vital Statistics Act in 2009.^[38] Initially, that provision was available only to those who had undergone gender confirmation surgery, but such requirement was removed following the December 2015 decision of a Newfoundland and Labrador Human Rights Board of Inquiry on complaints filed with the Human Rights Commission from two trans women.^[39]^[40] The amendment received Royal Assent on April 13, 2016.^[41]^[42]

The first gender-neutral birth certificate in Newfoundland and Labrador, and possibly the first in Canada, was issued December 14, 2017, to Gemma Hickey, a non-binary resident of St. John's, the province's capital.^[43] Hickey, an award-winning activist,^[44] had launched court action seeking to compel the Government of Newfoundland and Labrador to issue the gender-neutral certificate after their application for such a document was rejected because the application form was limited to male or female designation only. Hickey withdrew the court action after the government agreed to amend the Vital Statistics Act to authorize the issuing of gender-neutral birth certificates. That amendment received Royal Assent on December 7, 2017.^[45]

On June 1, 2021, a bill to amend the Vital Statistics Act to provide for the issuance of certificates of change of sex designation to people born outside Newfoundland and Labrador who have been living in the province for three months was tabled. On June 17, the bill passed Second Reading and the Committee of the Whole stage,^[46] and Third Reading on June 22. On June 23, Royal Assent was given.^[47] Therefore, Newfoundland and Labrador now permits a provincial change of legal gender for all residents, regardless of citizenship or immigration status, or birthplace.

Northwest Territories

Zdroj:https://en.wikipedia.org?pojem=Transgender_rights_in_Canada
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