I’ve stayed abreast of various developments with regards to trans rights, and in Ontario, where I’m from, a recent lawsuit caused a section of the Vital Statistics Act to be declared a violation of the Human Rights Code, resulting in the Registrar General allowing trans people to change their gender markers on their birth certificates without surgery. After a delay, the Registrar General finally released their revised rules in October.
As can probably be anticipated, this was fairly big news within the Ontario trans community, and most people took the news with optimism, perhaps tinged with an undertone of “it’s about time”. However, in the immediate aftermath of the change, I saw an article by Christin Milloy, an Ontario trans activist, expressing frustration with various aspects of the change. Milloy identified four main issues that she saw as problematic under the new rules – the $97 fee, the requirement for access to a doctor to sign off on the form, a statutory declaration that Milloy claims excludes nonbinary people, and the fact that the changes only address people born in Ontario. I’ll address each of these concerns in turn, and then highlight what I think was a glaring omission in Milloy’s critique.
First of all, it’s important to note that with the possible exception of the specific wording of the statutory declaration, all of these restrictions existed before this change. The $97 fee is unfortunate but not completely exorbitant for a one-time expense, and is consistent with the user fees charged for other Ontario government services (in fact, Milloy acknowledges a name change is even more expensive, at $137). Furthermore, as Callie has pointed out in the comments of Milloy’s article, in the vast majority of cases a “long form” birth certificate is not used in Ontario and many cis people don’t routinely have copies of it, so the true cost of bringing one’s birth certificate information up to date with what a cis person would routinely have is probably actually $63 rather than $97. Furthermore, Ontario has universal health care, which strongly mitigates the difficulty inherent in having a doctor sign off on the change (and of course this is a huge improvement over the previous requirement of having both a surgeon who performed “transsexual surgery” on the applicant and an additional Canadian doctor fill out separate forms for the change of sex designation). Though again not necessarily the most progressive solution, this is still ahead of most of the rest of the world on this issue.
As for the statutory declaration, the wording is as follows: “I am living full-time in the gender identity that accords with the requested change in sex designation and intend to maintain that gender identity.” Milloy brings up the specter of a perjury suit based on a hypothetical individual changing their sex designation to male but wearing female clothing on the weekends. Given current jurisprudence in Ontario, it is highly unlikely that a suit could proceed. Especially with the prior passage of Toby’s Act, which protects Ontarians in the provision of services based on gender expression, judges would be loath to make a restrictive determination of what constitutes “living full-time” in the “gender identity” that “accords” with the requested change in sex designation. As Milloy herself states, her hypothetical trans individual wishes to have a male ID because that suits his life circumstances best. This would be more than sufficient to fulfill the requirements for the statutory declaration – the full-time gender identity that he lives in (the one where he would desire male ID for most tasks that require it) accords with the requested change in sex designation (to male). Though many trans people have a narrow interpretation of what living “full time” means, largely informed by aging, outdated medical terminology, the Ontario court system would be loathe in the current legislative landscape to rule narrowly on what constitutes “full time”, as to do so would be to adjudicate on what “gender expression” accords with which “sex”, a declaration that would fall afoul of section 1 of the Human Rights Code as amended under Toby’s Act. So I don’t think that the statutory declaration constitutes a serious concern under Ontario law as it currently exists.
Next, Milloy points out that the change of sex designation only serves to cause a new birth certificate to be issued and doesn’t create a “Change of Sex Designation” certificate analogous to the current Change of Name certificate issued by the Ontario government for statutory name changes (that is, not linked with a life event like a marriage). The major issue I see with this is that it would be borderline if not explicitly fraudulent for the Government of Ontario to do so. A Change of Sex Designation certificate would have no legal recognition at the federal level (relevant to documents like the passport), and the Ministry of Government and Consumer Services, named in the suit, does not have jurisdiction over other Ontario ministries like the Ministry of Health and Long-Term Care (which administers OHIP, the universal health care plan of Ontario) or the Ministry of Transportation (which administers driver’s licenses). The Change of Name certificate that is currently issued is different, as it is generally recognized by governmental and non-governmental entities as valid. Without prior consultation and recognition from the federal government and other branches of government that the Change of Sex Designation certificate would be seen as valid, the Ontario government would be exposing trans people to significant hardship by charging for and issuing a document that may have no validity whatever. Therefore, it is important that we see such change at the federal level and in the other provincial departments before provinces begin issuing such documents. It may be a good idea for such documents to exist if the proper regulatory and policy frameworks are in place to issue them, but that sort of change goes well beyond a single government department or even a single province. When gender recognition certificates have been implemented in the past (most notably in the UK) they’ve been accompanied by wide-ranging national legislation, not introduced in response to litigation.
I’d finally like to address a significant oversight that I believe Milloy made. One of the revisions to the standards introduces a new restriction that in fact is not present anywhere in the current legislative framework. This restriction is the gratuitous and unnecessary exclusion of those under 18 from being able to have their gender markers changed under any circumstance. Milloy doesn’t mention this anywhere, even though this requirement is completely impossible to overcome for those who fall afoul of it, unlike the $69 or doctor access barriers. Furthermore, this restriction actually represents a significant scaling back of rights that not only existed before these changes, but were actually exercised (although vaginoplasty for trans women has been historically restricted in most, but not all, of the world, to individuals 18 and over, trans men who were 16 and 17 have obtained top surgery and used it to apply for legal changes of sex in Ontario). I’m not sure why Milloy completely left this new restriction out, as there is a class of specific people (those under 18 who have had some sort of surgery) who were before able to get their birth certificates changed and now cannot. Furthermore, those under 18 are often in greater need of updated birth certificates than adults are, as driver’s licenses, which are the most commonly used ID card for adults and could already be changed without surgery, are not available to anyone in Ontario under 16, and an updated birth certificate is required to update the Ontario Student Record (at least, last time I tried), the Canadian passport, and the OHIP card. Barring trans youth capriciously and arbitrarily from access to accurate ID is fundamentally unjust and exposes them to danger and discrimination, and I hope this blemish on what would otherwise be a clear step forward will soon be excised.