Vancouver lawyer barbara findlay says Ontario has been quicker than BC to address the issue of gender markers on identity cards because Ontario has an openly lesbian premier.
Findlay, who has a long history of legal work and activism in Vancouver’s queer community, is representing a group of eight complainants who have filed human rights complaints against the BC government for its continued use of sex and gender markers on birth certificates.
The human rights challenge in BC has seen considerable delays from both sides since the first complaint was filed three years ago in November 2013. Tribunal documents show the first delay was due to illness; others arose from government delays, still more from arguments over whether to settle through mediation or go to hearing. The case isn’t scheduled to be heard until June 2017.
The lengthy legal process here seems to stand in sharp contrast to how the Ontario government has proactively approached the issue, first with a public consultation, and voluntary changes in policy.
“The reason that the community consultation was possible in Ontario was the very unusual situation of having a lesbian premier who was open to considering gender and gender identity issues,” findlay says. “So at some level, people there had an ally there in government. In my experience that's almost never true."
Stephen Puddister, spokesperson for the Ontario ministry of government and consumer services, says the province created policy and held consultations because it wanted to be a leader in creating an inclusive society.
Reached by phone, he says the result should recognize a wider variety of gender identities.
"The proposed policy, once finalized, will help trans and non-binary individuals live according to their gender identity," he says.
Going forward, Ontario health cards will no longer display sex or gender at all.
Ontario drivers’ licenses will include a third, gender non-conforming option marked by an X.
Though findlay appreciates Ontario’s efforts overall, she isn’t fond of what she calls the “MFX option” and doesn’t want to see it on drivers’ licenses or any other identity cards in BC.
“I'll be disappointed if the result of our case is that we end up with a third option, the MFX option because . . . it maintains the myths about gender," she says.
It’s a myth that someone’s gender identity can be accurately determined at birth, she says.
It’s also a myth that people have the right to know everyone’s gender identity, she adds.
Findlay and the complainants she represents argue that gender markers on birth certificates are discriminatory, unnecessary and should be removed altogether.
She sees the case as an opportunity to move the conversation around gender on identity documents to a new framework where it’s left out entirely.
“For many years we've been treating sex [and gender] as something that everyone needs to know about,” she says, adding that it should be private matter, much like sexual orientation, which people can choose whether to disclose.
“This is a rethink,” she says. “The MFX leaves in place the idea that gendered documents are somehow appropriate and that you as a citizen are required to provide your gender at any given moment.”
Felix Gilliland is among the complainants that findlay is representing. Interviewed in findlay’s small office in Vancouver’s West End, Gilliland says he is confident his side will win because the current system doesn’t fit for everyone, himself included.
The only way identity cards will ever accurately reflect his identity, is if gender markers are “taken off completely,” he says.
How he identifies changes, notes Gilliland, who describes himself as trans masculine.
Gilliland recently changed his legal first names, but the sex and gender on his documents remain as female. When he receives mail from institutions he’s addressed as “Ms James Felix Gilliland.”
Gilliland is frustrated with how many times the complainants’ case has been set back, and says the delays make it feel like the issue is moving “two steps forward, one step back.”
“It feels like the government is really trying to delay the inevitable on it — that we’re going to win,” he says.
Daily Xtra requested an interview with a representative of BC’s Vital Statistics Agency, but were told that only the health minister, Terry Lake, could speak to the issue. And Lake is unable to do an interview because of his schedule, says Lori Cascaden, the health ministry’s manager of “media relations and issues management.”
When Xtra offered to wait a few extra days to speak to the minister — to ask why Vital Stats insists on taking this case to tribunal, rather than meeting with stakeholders to seek a solution — Cascaden insisted that Lake still wouldn’t be available for an interview.
In an emailed statement, Cascaden says: “The ministry recognizes the concerns of individuals whose gender identity does not conform with their biological sex, and individuals who do not identify solely with one sex or gender . . . [and is] making changes to processes concerning this population, including working with stakeholders and government agencies throughout the country to identify an option for “non-binary” individuals on official documentation.”
What new changes the ministry has implemented remains unclear, though Cascaden points to a change made two years ago allowing trans people to change their gender identity on ID cards from male to female, or vice versa, without undergoing gender reassignment surgery.
When asked to specify if the government has held internal or public consultations with stakeholders, Cascaden replied by email to say that because “the matter is before the Human Rights Tribunal, we cannot provide any comment.“
MLA Spencer Chandra Herbert has been an advocate for trans rights in the BC legislature for years. The NDP representative for Vancouver-West End says he hasn’t seen the BC Liberal Party take proactive measures to support trans people. He says government employees and citizen groups, not elected officials, are to thank for improved services for trans people.
He says he’s asked the attorney general “multiple times in the legislature to actually go out and consult with people” about gender markers on ID cards, to no avail. He suspects the BC Liberals don’t “want to touch these issues with a 10-foot pole.”
To findlay, the changes made so far, such as making it somewhat easier to switch gender markers without surgery, have been inadequate, since they’ve left intact the framework of the state requiring gender on identity cards.
She acknowledges that the changes may be useful for some, but says they do nothing to address the issue for people who are non-binary or gender fluid.
“So we say the state has no business in the undies of the nation. They have no justification for requiring gender on . . . state-issued carry documents,” she says.
“The state has no business recording gender at all,” she says.
The gender markers case is currently scheduled to be heard in BC’s human rights tribunal in June 2017.