New Ontario Legal Sex Change Requirements a Huge Disappointment for Most Trans* People
by Christin Scarlett Milloy
Published: Wednesday, 2012.10.10
Some of Ontario’s Trans* community are celebrating this week, as Service Ontario has released a revised set of legal sex change rules which no longer require surgery. This came as the result of a Human Rights Tribunal ruling which occurred in April. However, as the new forms reveal, the Government struck back against the ruling by imposing severe restrictions that will continue to prevent many Trans* people from applying.
Note here that I use the word “Trans*” as shorthand, with a capital “T” and the wildcard asterisk, to refer to any and all persons with non-cis gender identities and/or who may have alternative gender expression; in other words, any and all persons who share political interest in these sorts of advancements—I am explicitly including transgender, transsexual, genderqueer, androgyne, neutrois, two-spirited, crossdressers, “butch,” “femme,” and anyone else under the sun for whom changing the legal sex designation without providing proof of surgery might be desirable.
Most of the subsets of Trans* people I described above are still not eligible for a legal change of sex. Activists are already speaking out against the requirements and limitations inherent to the new procedure.
- Are you a pre-op, post-op, or non-op trans person?
- Do you fit perfectly within the gender binary (having an identity which is exclusively “M” or “F”) which you maintain 100% of the time?
- Were you born in Ontario?
- Are you currently supervised by a doctor or psychologist who has officially recognized, and supports, your Gender Identity?
- Can you afford $97?
If you answered yes to every single question above, congratulations: you are now able to change the sex designation on your Ontario Birth Certificate without providing “proof of transsexual surgery.”
If, however, you are one of countless Trans* people in Ontario who do not qualify as outlined above, congratulations: You remain subject to illegal discrimination carried out by the provincial government of Ontario via the Registrar General’s office and their agents at Service Ontario.
Take my imaginary friend Billie Example (based on two persons I know online). Billie E. was born physiologically female, and identifies as bigendered. Billie prefers to live as a man on weekdays (including at work), and as a woman on the weekends. Billie alternates his pronouns accordingly (today happens to be a Wednesday, so I will honour his preference and use male pronouns). Billie is lucky, because he has a Family Doctor who supports his identity. Billie works for a small company, and he does not discuss his gender identity with his co-workers, because they are not open-minded. He would prefer they think of him only as a man, since that is the only way they ever see him. In Billie’s line of work, Trans* people have a very hard time getting hired, so he was lucky; his HR manager saw his “female” ID, and had an awkward and embarrassing conversation with him about it, but then agreed to keep it a secret at work.
Billie works as a man, conducts all his business as a man, drives as a man, runs his errands as a man, and occasionally buys alcohol or cigarettes as a man. Billie would prefer to have a “Male” ID because that suits his life circumstances best (and because unfortunately one has to pick between “M” or “F” on their ID and can’t have “none” listed).
Unfortunately, Billie does not qualify for the Application for a Change of Sex Designation on a Birth Registration in Ontario. The form would require Billie to “solemnly declare” under rule of perjury “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.”
This is something that Billie is not able to do, unless he wants to either lie (which is illegal), or give up his girl time on the weekends. But Billie needs proper male ID, in case he needs to find a new job at some point, or if he wants to go out for a drink with his co-workers without the risk of being outed each time he gets carded at the bar (he does look rather young as a man).
Make sure you burn all your girl clothes to stay in compliance with the Registrar General, Billie!
And then there’s my other imaginary friend, Jo Sample (Jo is based on a couple of people I know in real life). Jo was born physically male, but she’s a transgender-identified woman, and she’s been living full time in that gender identity for four years. Jo has been taking hormones she ordered from the Internet, because she can’t find a doctor to help supervise her transition (she’s been on a waiting list at CAMH for more than a year now, but CAMH makes her nervous anyway).
Jo does not benefit from the privilege of passing easily, and hasn’t been able to land the job she wants as a full-time retail employee. Two years ago, broke, and with no other options available to her, Jo began to perform sex work, and this way she is able to sustain herself (barely). Jo wants female ID not just because it would match her identity, but also because it could make a big difference to her treatment and safety when she has encounters with the Police. Jo also hopes that female ID might make it easier for her to find a retail job.
Jo is out of luck with Service Ontario. She has no possible means of accessing the Doctor’s note, which is required by the new forms.
Also, Jo can barely make her rent and stay fed, so it would have been a struggle for her to afford the $97 dollars in government fees that Ontario requires in order to process and recognize the legal change of sex. Jo already had to pay fees for a new birth certificate once, two years ago when she changed her legal name (for which she had to save up $137). She did send them a note at that time asking politely for the sex to be changed too, but that was when they still required proof of surgery, so now she would need to pay again.
The only alternatives offered, for people without Doctors’ notes, are outlined as follows:
In lieu of [a doctor's note], any one of the following documents may be submitted and will be reviewed on a case-by-case basis:
I. A document or certificate issued by a jurisdiction in which the applicant was domiciled or ordinarily resident that, in the opinion of the Registrar General, confirms that the applicant’s gender identity does not accord with the sex designation on the applicant’s birth registration and it is appropriate that the sex designation be changed; or
II. If an applicant is not domiciled or ordinarily resident in Canada, such medical evidence that, in the opinion of the Registrar General, confirms that the applicant’s gender identity does not accord with the sex designation on the applicant’s birth registration and it is appropriate that the sex designation be changed; or
III. A certificate signed by a practising physician authorized to practise in Canada, that complies with the current requirements of s. 36(2)(a) or (b) of the Vital Statistics Act
What precisely satisfies “the opinion of the Registrar General?” No indication is given. It’s so deliciously ambiguous, as if it’s designed to drown Trans* people in a confusing sea of bureaucracy… as if transition wasn’t already legally complicated enough. Why should anyone have to satisfy the opinion of anyone besides themselves when establishing their Gender Identity? Isn’t that considered a human right now in Ontario? I have no idea what might or might not be considered suitable by the Registrar General, and neither would Jo.
I have another friend, Theo (this is a real person, this time). He’s a trans man, who has for some time lived and will continue to live in Ontario. But he was born in Quebec. Boom—Screwed right off the bat. Service Ontario’s new Legal Sex Change requirements are framed in such a way that they are only available in the form of an Ontario Birth Certificate, which doesn’t help Theo, because he wasn’t born in Ontario.
The Registrar’s office chose to ignore many of the suggestions submitted by Trans Lobby Group, even though we were specifically asked for these recommendations as stakeholders. Therein, we specifically requested that Ontario’s “Change of Sex” procedure be handled more like the existing “Change of Name” procedure, which is available to anyone living in Ontario (regardless where you were born), and provides its own separate legal certificate which can be used to change all other IDs.
The group Queer Ontario made a similar request in their submission. It was a good idea, and the government should have used it, but they didn’t. So Theo and any other persons who were not born in Ontario are out of luck.
Billie, Jo, and Theo are stuck in the bureaucratic mud. On the other hand, there’s me.
I was born in Ontario. Privilege. I also have a great doctor who has supported my transition. Privilege. Two years ago, he wrote a neat little letter for me, “for my files, just in case” in which he attests about my gender identity “to whom it may concern.” Don’t tell anyone, but he didn’t even charge me for the note, even though I could easily have afforded to pay. I can also afford the government’s $97 fee. Privilege.
Because of all my privilege, I am precisely the “eligible” type of trans person the government had in mind when they drafted these new requirements. There is nothing, technically, to stop me going down to Service Ontario and registering the legal sex change.
Except, I can’t stop thinking—and seething—about the Billies and Jos and Theos of the world. Some Trans* people are celebrating the new changes, but I just can’t shake the overwhelming sense of disgust I have about how much the new requirements reaffirm the abhorrent pathologizing of Gender Identity. It’s clear that the government’s new requirements were influenced heavily by information submitted by CAMH to the Registrar General’s office. CAMH is even linked within the form. The long nightmare of CAMH’s stranglehold on the rights of Canadian trans people continues.
For those Trans* folk who do meet the new requirements, there will obviously be a subset who need or want their IDs changed immediately due to life circumstances. I do not begrudge anyone making the decision to go ahead now, because every person’s living situation is different and it’s not my place to judge. As for myself, I’m not so ready to cooperate with the system as it stands today. Somebody’s going to need to challenge this if it’s ever going to be fixed for real.
I’m going to try getting mine changed this week, and I’m not going to provide my doctor’s note. Stay tuned.
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