Following a human-rights investigation, the federal government might be compelled to offer a third-gender option on passports, Xtra has learned.

Rory Vandrish filed a complaint with the Canadian Human Rights Commission (CHRC) in April 2015, arguing that non-binary people, like themself, should have a third-gender option on passports, following seven other countries that offer “X” as a gender marker including Germany, Nepal and Pakistan.

Vandrish has since changed their request, asking the federal government to become the first country without gender markers on its passports at all.

“If it’s an ‘X’. . . it's going to out you and you’re going to experience discrimination,” Vandrish told Xtra.

Almost two years after Vandrish filed their case, they says the commission’s confidential mediation has failed to find a solution. The Canadian Human Rights Tribunal confirms in an email to Xtra that it will now be taking up the case, with a 10-day hearing currently scheduled for July in Vancouver.

Similar to a court, the tribunal has powers to fine federal departments and compel them to change their processes. 

Cases that head to the tribunal can sometimes result in changes to government policy. The vast majority are instead resolved at the commission, like a January 2017 mediation that saw the agency overseeing social identity numbers commit to including a third-gender option.

Employment and Social Development Canada (ESDC) is now undertaking a review of how it can restrict collecting gender data to only necessary policy-planning work, and how it can keep that data confidential.

The prime minister’s special advisor on LGBTQ2 issues, Randy Boissonnault, told Xtra on Feb 2 that the Liberals are waiting on that review to shape how other departments collect data.

“It’s part of our commitment to upholding the rights of the LGBTQ community,” he said. “Pending the review, we’ll review procedures for other elements as well.”

Boissonnault said the desire for gender-neutral passports came up repeatedly in January, as he visited Toronto and the four western provinces. He said that once the ESDC completes its review, his staff — who have yet to be hired — will examine all federal government services, including passports. 

That’s despite Passport Canada studying a third-gender option since 2012, and Prime Minister Justin Trudeau saying in July 2016 that gender-optional IDs are “part of the great arc of history sweeping towards justice.”

“[There’s] no news on passports,” Boissonnault said. “We need to work with our international partners and the treaties that we’re a part of, so that does require us to have gender identification.”

Vandrish says the government has long argued it must to comply with the UN’s International Civil Aviation Organization (ICAO) rules, which state that all passports must include a gender marker that is either M, F or X “where a person does not wish his/her gender to be identified or where an issuing state or organization does not want to show this data.” 

Boissonnault’s office didn’t respond to an Xtra request to confirm that this is the government’s reasoning, but officials have previously cited these rules.

While the CHRC couldn’t confirm any details about Vandrish’s complaint, spokeswoman Natalie Babin-Dufresne says the ESDC settlement, and moves by provinces to create third-gender categories, could sway the case. “There is a certain amount of domino effect,” she says. 

The commission has previously hinted that the government could easily drop any gender markers on passports and identity documents. Canada already issues electronic visas for people with third-gender designations.

Meanwhile, Vandrish says they still want Canada to scrap passport gender markings entirely, regardless of the ICAO’s rules.

“The Liberal government is looking to legalize recreational marijuana, and that is against some international treaties. So if they say it can be done for them, then it can certainly be done for passports,” they say.

In 2012, New Zealand’s government completed a study for the ICAO, looking at the feasibility of removing gender markers from passports. It concluded that while it would be possible and would crack down on some incorrect passports, that benefit wouldn’t be outweighed by the cost of updating outdated technology, and could thus delay travel times.

“So put an ‘X’ for everybody,” Vandrish argues. 

“It’s uncomfortable if I’m trying to purchase alcohol and they ask me for an ID. But from a passport perspective, the scrutiny is so much higher that it’s actually terrifying,” they say. 

“It’s totally strange and anachronistic that they’re still requiring this. I look what I look like in my photo. Isn’t that enough to determine who I am?”

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