A proposed change to Quebec ID gender markers would legally out trans people

OPINION: Bill 2 would document both sex and gender identity on the birth registry—a major step back from past legal victories in the province

On Oct. 21, the government of Quebec introduced legislation that proposes a wide-ranging and long-awaited reform of family law. But for LGBTQ2S+ communities in the province, Bill 2 marks a threat against trans and gender nonconforming folks due to its proposed changes to gender markers on IDs. If passed, Bill 2 would violate the dignity, privacy and bodily integrity of trans individuals. It is one of the most regressive bills for trans people in Canadian history.

Under the current Quebec law, everyone’s birth certificate has a gender marker—known as “sex designation”—that can be changed based on their gender identity. While genital surgeries were required to change gender markers in the past, the legislature unanimously and expressly removed all medical requirements for adult citizens in 2015. The age requirement was later removed by statute in 2016, and a 2021 court ruling allowed non-citizens of Quebec to enjoy the same rights. That same court ruling also ordered the government to create gender markers for non-binary people—that is, options outside of male or female—by the end of 2021. 

Bill 2 threatens to undo decades worth of advances by replacing a singular gender marker with two separate markers—one based on genitals (“sex”), and one based on gender identity. In the government registry, everyone would have a sex designation that can only be changed by proof of genital surgery. Trans people who have not pursued genital surgery can ask to add a gender identity to the registry, which replaces their sex designation on birth certificates. While cisgender people will receive birth certificates that read “sex,” trans people who do not want genital surgery will receive documents that read “gender identity,” creating a clear documentary distinction between the two groups and outing countless trans people. And if that wasn’t enough, all birth certificates will also note whether the person’s name and gender markers were previously changed. At that point, why doesn’t the government add a big sticker that reads “TRANS” on birth certificates?

While birth certificates wouldn’t specify people’s sex assigned at birth or genitals, they would clearly identify every trans person who hasn’t had genital surgeries. This is a grave violation of privacy that places trans people at imminent risk of discrimination, harassment and violence. In a time of rising animosity toward our already vulnerable communities, this is the last thing we need.

“The choice should be made freely by individuals and should never be subject to the pressures of government.”

By making privacy and respect for gender contingent upon surgery, the government also threatens the bodily integrity of trans people. Before the 2015 legislation allowed adults to change their gender marker without medical intervention, some individuals who did not wish to pursue genital surgery may have done so to change their sex designation on IDs; that could very well happen again. The government-imposed choice between privacy and surgery is cruel, unusual and degrading, and has long been decried as a form of forced sterilization of trans communities in legal literature. Genital surgery is a crucial form of health care for many trans people, but not everyone needs or wants it and nor do they have the means, time or ability to access it readily. The choice should be made freely by individuals and should never be subject to the pressures of government.

 

Surgical requirements have been ruled to violate human rights in other provinces. In XY v. Ontario, the Human Rights Tribunal accepted that surgical requirements for changing gender markers were degrading and constituted a distinct and disadvantageous treatment of trans communities. In C.F. v. Alberta, the Court of Queen’s bench concluded similarly, accepting the expert’s evidence that the surgical requirement contributed to high rates of unemployment and poverty among trans communities. The same would hold in Quebec.

In response to strong criticism, the government now claims that the changes were motivated by the 2021 court ruling that required gender markers for non-binary people, relying on a passage emphasizing “the difference between sex and gender identity and the discrimination that can result when the law treats them as synonyms.” However, nothing in the decision suggested making any such distinction on legal documents. On the contrary, the ruling was predicated on the understanding that trans people were owed privacy and respect for their identity on government documents. Indeed, the conclusion specifically states: 

“The plaintiffs proved that a register of civil status that does not recognize the gender identity of transgender and non-binary people, or that limits their ability to correct the designation of sex on their acts of civil status to reflect their true identity, deprives them of the dignity and the equality that they are owed.”

The language is clear: limits on the ability to change one’s sex designation to reflect gender identity is in itself a violation of dignity and equality. Abstract and controversial distinctions between sex and gender cannot prevail over the material lives, realities and needs of trans people.

Now, the fate of Bill 2 lies in the hands of the Quebec government. The Quebec Liberal Party and Québec Solidaire have both spoken out in opposition to the proposed changes to gender markers, but the ruling Coalition Avenir Québec (CAQ) holds 60 percent of the seats at the National Assembly and does not need the support of other parties to make this bill law. The CAQ’s commitment to the change remains to be seen, with some indication that the proposal was made with good intentions, however ill-considered it may be. Parts of the bill are indeed quite positive, such as adding a “non-binary” gender marker and formally removing citizenship requirements from the law. Amendments may be possible.

The government still has time to recognize its mistake, reverse course and consult trans communities on how best to implement the 2021 court decision in a way that benefits rather than harms us. It is crucial for the government to consult with trans parents, polyamorous parents and intersex communities, who will also be harmed by other portions of the law. If the necessary amendments are not made, a return to the courts will be necessary. For those who live in Quebec, you can also contact your elected representative to voice your opinion (search by postal code here).

Correction: November 1, 2021 2:22 pmThis story’s display copy has been updated to better reflect how Bill 2 will affect the documentation of gender identity and sex on the birth registry.

Florence Ashley

Florence Ashley is a transfeminine jurist and bioethicist. Metaphorically a biorg witch with flowers in their hair.

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