Monday • 2012.01.09
Human Rights Complaint Filed Against Canadian Government over Sex Discrimination in Social Insurance Registration Identification Practices
Six months ago, the Social Insurance Registration department at Human Resources and Skills Development Canada refused to update the gender designation on my SIN record. Since then, I’ve been fighting a pitched bureaucratic battle to correct that wrong.
After 188 days, three requests filed under the Privacy Act, nine requests filed under the Access To Information Act, and almost a dozen letters to individuals at various levels at the ministry, the entire affair has culminated in a Human Rights Complaint which I filed this morning with the Canadian Human Rights Commission.
I have expended six months carefully following all of the lengthy, complicated, and expensive bureaucratic procedures required by our federal government in order to build the necessary evidence. Now I wait with great anticipation to hear back from the Canadian Human Rights Commission, who must now decide whether or not they are willing to accept my complaint for consideration. I am cautiously optimistic.
This experience has been simultaneously challenging and educational; frustrating, and exhilarating. I cannot imagine a more effective way to concisely summarize the story so far than how I have already laid it out in the text of the CHRC complaint:
1. My legal name is Christin Scarlett Milloy and my complaint is against Human Resources and Skills Development Canada (HRSDC). I am a female person with male sex designation on my birth certificate (male-to-female transgender person) and I have been discriminated against due to my sex.
2. In June of 2011 I downloaded a copy of form NAS2120, “Social Insurance Number Application” from the Service Canada website, and correctly filled it out to indicate 3 personal information changes to my Social Insurance Number record, specifically:
a) a change to my registered home address,
b) a legal change of name which had recently taken place, and
c) an update to the “GENDER” field on file to reflect the fact that I am a woman.
3. On July 6th, 2011, HRSDC sent me a notice of refusal to update the Gender designation on my SIN record to read “female.” The notice was signed by an individual named C. Gosselin.
4. The refusal notice stated “…your previous gender will remain on your Social Insurance Number record since the gender is recorded from the Ontario Birth Certificate submitted. You must provide a new Ontario Birth Certificate which reflects your new gender in order to amend your record.”
5. The NAS2120 form that I submitted was improperly altered by C. Gosselin without my consent before it was added to my SIN record. He circled where I had indicated a Gender designation of “Female,” to suggest error, and he checked off an incorrect gender designation, “Male.” I discovered this by requesting a copy of the form under Privacy Act.
6. On July 26th, 2011, I sent a followup letter, in which I explained clearly to Mr. Gosselin that regardless of the “Sex” designation on my birth certificate, my gender identity is female, and my SIN record should be updated to reflect this. I explained the differentiation between gender identity and physiological sex, and that it is my position that the arbitrary assignment of a “Gender” designation based solely on existing physiological “Sex” designation constitutes discrimination based on sex.
7. On August 17th, 2011, C. Gosselin sent me a second notice of refusal, in which he states: “You are correct in identifying that the terminology is not correct. Service Canada uses the information contained on the provincial/territorial birth certificate to clearly identify and confirm the identity of the individual requesting the service. Therefore, you [sic] SIN record can only be annotated based on the information presented on your document. Therefore, your sex will be reflected as M in your SIN record. We will take steps to correct our application form and procedures in light of your concerns. We regret the inconvenience and thank you for bringing this to our attention.”
8. The form NAS2120 does not contain a field marked “Sex.” NAS2120 once carried a “Sex” field, but this was changed to “Gender” in the version published in April of 2004, and has remained so up to and including the present version published January of 2012.
9. HRSDC maintains one (1) single field in the ORACLE database relating to sex and/or gender, and there has been confusion at the institution about the definition(s) of “Sex” and “Gender,” and about which indicator is actually prescribed by the minister. There is evidence to suggest they are collecting “Gender” as opposed to “Sex.” For example, in addition to the “Gender” label on NAS2120, the field in question has its possible values defined in the ORACLE database on a table which is named “RCD_GENDER_TYPE.” I discovered this information by submitting requests under the Access To Information Act.
10. The online application form for Employment Insurance benefits also requires the applicant to provide “Gender” as an identifying field, to be compared with the data stored in the applicant’s Social Insurance Record.
11. Individuals at HRSDC have continued to refer to me using male pronouns such as “he” and “himself,” after I had already repeatedly identified myself to their organization as a woman. I discovered this by examining internal emails from HRSDC which I obtained via the Access To Information Act.
12. The internal emails also reveal that, as a direct result of my continued correspondence with C. Gosselin, policy makers at HRSDC have debated amongst themselves whether to “revert” the designating field on NAS2120 to read “Sex” rather than “Gender.”
13. Regardless whether their intention is to store a designation of “Sex” vs. “Gender,” they have indicated in their correspondence that the field is used for identification. It is my belief that regardless which indicator is used, that their refusal to update said field on my SIN record constitutes discrimination on the following basis:
a) If they are collecting “Gender,” then they are arbitrarily assigning it based on “Sex,” which constitutes direct discrimination based on my physiological Sex.
b) If they are collecting “Sex,” then because of its express use as an identifier (“to clearly identify and confirm the identity of the individual requesting a service” per C. Gosselin), then HRSDC is singling out persons whose gender identity does not conform to their birth-assigned sex (i.e., trans persons) for misidentification. This constitutes adverse-affect discrimination directed against me based on my physiological sex.
14. I believe that I am being identified inappropriately by HRSDC. Transgender persons, like all people, are publicly identified by the gender which they express outwardly, and not by an examination of their anatomy. While most people enjoy the privilege and convenience of having an anatomical Sex which “matches” their Gender expression (“cisgender” privilege), transgender persons do not. Nevertheless, we have the same basic human right as any cisgender person, to be identified by the gender identity through which we interact with the world.
15. On December 1st, 2011, I contacted Kathy Cowan, Director for SIN Management Services at HRSDC. In my letter, I outlined all of my concerns, and asked for her assistance in correcting this matter. As of this filing, there has been no response.
16. I believe that the SIN Registration policy at HRSDC, of taking the identifying “Gender” marker based exclusively on the “Sex” designation on the Birth Certificate, has a disproportionately negative impact on transgender persons and therefore constitutes institutional discrimination based on sex. Reverting the labels on forms and database to read “Sex” only, as is the current plan under consideration by HRSDC, would not be an acceptable solution, because trans people would still be singled out for misidentification. I am seeking the following corrective actions from HRSDC:
a) Correct my SIN record to reflect the female identity which I have repeatedly indicated.
b) Institute a correction to the identification policy to make it easier for future transgender applicants. HRSDC should recognize transgender applicants’ right to be identified properly in their SIN record by the gender identity they indicate, regardless of what “Sex” designation is printed on their birth certificate.
UPDATE — TUESDAY JANUARY 10, 2012
It has come to my attention that the website of the Canadian Human Rights Commission contains a passage which reads as follows:
Complainants, respondents and witnesses are asked to avoid discussing the matters dealt with in complaints in a public forum or with the media during the complaint process.
I have considered the matter carefully, and I have decided to maintain my original decision to publish this information. The reason being that this complaint is made not only in my own interest, but in the greater interest of all transgender persons; an entire class of people whose rights are in question.