3 min

Quebec closer to striking down surgical requirement for gender change

'It's not time to celebrate just yet,' say trans activists

Trans activist Gabrielle Bouchard is an employee of Concordia University’s Centre for Gender Advocacy. Credit: Megan Dolski

The Quebec government is on its way to eliminating surgery from its checklist of steps required to legally change one’s gender marker, without being forced to do so in court.

On Dec 4, the National Assembly was presented with proposed amendments to Bill 35 — an act to amend the civil code, regarding civil status, succession and publications of rights — that included proposed modifications to Article 71 of the civil code. If voted through, the changes would no longer require those wishing to legally change their gender marker to undergo surgical modification of their bodies.

The proposed amendments come following a series of public hearings, debates and consultations on Bill 35 within the assembly’s Commission des Institutions, beginning this past summer. The National Assembly is expected to vote on the proposed amendments soon, likely before the holidays.

“Ninety-nine percent of the time, if something is adopted in a parliamentary commission, it generally is adopted by the assembly,” says Anik Laplante, secretary of the National Assembly’s Commission des Institutions.

Trans rights activists are also confident that the amendments will pass, but if they do, they won’t be shouting victory cheers just yet.

Gabrielle Bouchard, an employee of Concordia University’s Centre for Gender Advocacy, presented to the commission on Nov 26. While she is thrilled that progress is being made, she is concerned about how the new wording might be implemented practically, if passed. “We can't celebrate yet,” she says. “We'll put the champagne in the fridge and wait, because the devil is in the details, and in this particular case, the devil is in the regulations.”

If the assembly votes in favour of the changes, they will still have to determine how to tangibly regulate and implement them. Bouchard fears that the revised article has the potential to be translated into regulations that make it even more discriminatory than the previous legislation. “We need to wait for this to go forward, because the potential for it to turn into a nightmare is still very, very present,” she says.

Additionally, Bouchard points out that there are still two “discriminatory” criteria standing in the way of Quebecers who wish to change their gender marker  — that they be Canadian citizens and be 18 years or older. 

At the end of the summer, Bouchard filed a complaint to the province’s Human Rights Commission citing the surgical, age and citizenship requirements as discriminatory to those who wish to change their gender marker. The commission has since replied, requesting that the centre resubmit its complaint, putting forth individuals that have lived the discrimination caused by each mentioned criteria. Bouchard says the centre intends to do so, if people are willing to put themselves forward as examples.

In the meantime, she will focus her energy on dealing with the issue from a legal standpoint. On Nov 20, Quebec legal clinic Juripop announced it would be joining the centre in challenging the Quebec government, fighting for the modification of  Article 71 of the civil code. The organizations say that as it stands, the legislation unfairly limits the rights and freedoms of trans people in Quebec.

While one of its three specific objections — the surgical requirement — might soon be dealt with, Bouchard says the battle isn’t over yet. “The civil code as it stands, or as it will stand once this passes, will just be less discriminatory — so our mandate to go forward with a court case is still valid and in full force,” she says.

On Nov 27, Juripop issued a statement that recognizes the progress made by the Quebec government in moving forward with the amendment but that stresses the need for further changes.

“We still have to fight for the rights of trans immigrants and trans minors,” says Juripop’s general director, Marc-Antoine Cloutier. “This is important work, and we’ll be tackling it in the coming weeks.”

Cloutier believes they have a good shot at success. “Our lawyers are very optimistic,” he says. “This is discrimination that is illegal, according to both the Canadian and Quebec charter, so I think we have a fairly good chance of being successful.”