A recent human rights settlement involving the merits of using sex and gender markers on identification documents is being described as a landmark case that has prompted a federal government review.
Toronto trans activist Christin Milloy filed the case with the Canadian Human Rights Commission in January 2012, after making a number of unsuccessful attempts to update the gender information on her social insurance record through Employment and Social Development Canada (ESDC).
“Their practice was to record a gender designation by copying the sex designation from a birth certificate, and that created problems for me because my gender identity did not match my sex designation,” Milloy explains. She says the ESDC wanted her to produce an updated birth certificate, which she did not have, that reflected the gender marker she uses.
The settlement, reached earlier this month, means that ESDC’s procedure will be updated to make providing sex and gender information optional. Those who decide to disclose their gender will have at least three options to choose from — male, female, and a third alternative — when answering a sex or gender question. ESDC will also be included in an imminent government-wide initiative to review the collection of sex and gender data.
“What we got is exactly what we sought,” Milloy says. For her, that means an acknowledgement that it is “inappropriate to collect and store a sex designation, and it is inappropriate to use a gender designation for identification purposes.”
She recognizes, however, that the ESDC may require anonymous demographic data, including sex and gender data, for planning and evaluation.
Milloy’s lawyer barbara findlay (who does not capitalize her name) says the case’s outcome signals the first time a government has recognized that collecting gender marker information can be discriminatory, unless it’s proven to be necessary.
“That’s a huge thing because it’s a recognition that gender should be treated like race, or sexual orientation, or any of those other personal things,” she says. “Certainly it’s important to collect information about the demographics of a situation or the country, the workplace, the province, the city, whatever, but it’s equally important to not make people out themselves in order to collect that information.”
Findlay says it is especially important not to have gender designations on any document that an individual has to carry and produce.
She is also representing a group of eight complainants who are pushing BC’s Vital Statistics Agency to allow for gender-free birth certificates. The complainants, including the Trans Alliance Society of BC, filed the first complaint with the province’s human rights tribunal in November 2013. A hearing is set to take place in the coming months.
The case, and the use of gender markers overall, is not without debate within BC’s trans community. Those in favour of the removal of gender markers argue that mandatory inclusion of gender on primary documents doesn’t serve any useful purpose and could cause harm by forcing people who are non-binary or gender variant to have gender markers that do not match their identity. Others in the trans community feel such markers are a validation of the battles they fought to gain recognition of their gender identity.
Natalie Babin-Dufresne, the director of communications for the Canadian Human Rights Commission, says the outcome of Milloy’s case was informed by the principle that all levels of government remove gender markers on documents wherever possible.
Babin-Dufresne stresses that this was a settlement, not a decision, so it cannot officially set precedent, but it should influence similar cases.
“What it will do is inform or encourage the federal government and other government departments, provincially perhaps as well, to maybe change how they approach gathering data,” Babin-Dufresne says. “It might also open up avenues in terms of providing a third option, in addition to male and female.”
Findlay agrees that the settlement does not set official precedent, but says it should provide influence. “It certainly is persuasive.”
In Saskatchewan, a complaint has been filed challenging the collection of gender data on all government documents. Another federal complaint has also been filed with the Canadian Human Rights Tribunal to remove gender markers from Canadian passports.
Babin-Dufresne says the commission will be monitoring the government-wide review.
“What’s important to take away from this, is that this is a step in the direction of trying to allow people to choose, that they don’t have to choose between a service and providing personal information,” she says. “It’s allowing people to have more control over something that’s very personal.”
In Milloy’s opinion, the settlement should have an immediate effect on all similar cases.
“I’m extremely hopeful that this will set a precedent for them, where the government is going to cooperate with the notion that in the 21st century we don’t need gender as an identifier,” she says. “We certainly should not be considering the physiological sex of an infant; that shouldn’t follow someone around for the rest of their life on a card that they have to carry and show.”
She says she’ll work with other activists to watch the federal review very closely.
“It really is the next frontier of queer rights, in my opinion.”
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