Legal project examines third-sex option on government forms

Generic form. Photo by Getty Images

Statistics aren’t exactly the sexiest topic.

But, one of the questions the Vital Statistics Act Project, which has partnered with the Uniform Law Conference of Canada and the BC Law Institute, will try to answer is how gender should be marked on provincial government documents such as birth certificates?

Ontario is the only province that has adopted the third sex of “undetermined” for intersex persons on government documents.

The project started in 2014 and is a year into gathering information on all aspects of change that have impacted the registry of births and deaths in Canada and is a four-year project. The VSAP is developing a model act that the various provinces, which control vital statistics, can use to update their own provincial statutes. The gender issue is seen as a major component with tentative recommendations now in place but not being publically disclosed as they may change.

“There are human rights challenges going on in B.C. right now,” said BCLI project leader and research lawyer Alexandre Blondin. He said the VSAP is not involved in the challenges coming forward but is watching the outcome as any such rulings or decisions would impact the proposed recommendations.  

As well as incorporating emerging human rights changes, there is also the need to accommodate medical changes into documents to reflect assisted reproductive technologies and also societal changes such as the expanded family structure or same sex marriages.

The controversy over how provinces enter sex on vital statistics and other government documents is not a new debate. Many other countries are well ahead of Canada having adopted a third sex or gender category on documents. According to a background paper produced by the VSAP, Australia and New Zealand have adopted the third sex “X” for those who are indeterminate, intersex, or unspecified; Germany has adopted “indeterminate” as a third option, Nepal has adopted “third gender/other” for transgendered persons; India adopted “other” in 2009 and in April 2014 formerly adopted “third gender” with all legal rights and protection.

“The last time the (model) Vital Statistics Act was updated by the Uniform Law Conference of Canada was in 1987,” said Blondin. The ULCC, which first met in 1918, is an independent body that works closely with the Canadian Bar Association and provincial and federal bodies to develop uniform statutes, which can be adopted and enacted by various provincial governments.

There is a need to forge uniformity in the statistics gathering, especially if they are used by national agencies such as Statistics Canada. But, there are other areas where federal changes still have to occur, said Blondin. For example, he said, a person’s updated provincial birth certificate might carry a third gender designation but that may not be reflected federally in agencies and could pose a problem in obtaining a passport.

There are also implications for travel. Blondin said some countries such as Germany have moved towards change in how they designate gender on documents and that could signal the beginning of change in the European Economic Union. The international community still has to settle how it recognizes documents that carry new gender designations, he said. A situation could occur where a country does not accept a passport because it has the new gender designation.

However before Canada can move into the realm of determining how it assigns a gender designation on federal papers, there is the foundation work that is required at the provincial level to bring forward the new changes into provincial statutes that are uniform. And, also bring forward changes such as how the digital age affects documents under the act.

“The wheels are in motion and change has been happening since 2010,” he said. “Change is going to happen whether it through legislation or whether it occurs as a result of a lawsuit.”

Changes have occurred in provincial legislation or proposed legislation in Ontario, B.C. and Alberta and were prompted by the Human Rights Tribunal of Ontario which ruled on the 2012 case XY v. Ministry of Government and Consumer Services finding that a person did not need to have transsexual surgery before that person could change sex on a birth registration. Another case followed suit in 2014 in Alberta with C.F. v. Alberta, 2014 ABQB 237 where a justice ruled surgery was not necessary to obtain a new birth certificate. In 2014, B.C. also changed its Vital Statistics Act to reflect the decisions.

Blondin said the VSAP consists of two committees. Each province and territory has contributed financially to the project and is taking an active role. “One is an advisory committee,” he said, adding the members are vital statistics workers who are familiar with the gender and other issues coming into their offices plus there are several lawyers involved. “They are bringing forward advice and recommendations from the front lines,” he said. The second is the project committee, he said, which consists of provincial registrars of vital statistics and they will examine the recommendations brought forward.

Blondin said the new model Vital Statistics Act for the provinces is still several years away from completion but it is a thorough review will reflect the social, medical, and technological changes that have impact the various provincial acts.
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