Quebec, once on the forefront of trans rights, is now joining the ranks of most Canadian jurisdictions after Quebec Superior Court declared unconstitutional several articles of the Civil Code of Quebec that discriminated against trans and non-binary people.
In a long-awaited ruling by trans, non-binary and intersex people, the “critically important” decision affirms that having your identity acknowledged and recognized by the State is a core aspect of the right to equality and the right to dignity, assert legal experts. The judgment, lauded as the most sweeping in its scope in Canada involving the constitutional rights of trans people, found that six provisions of the Civil Code violated rights guaranteed by the Canadian Charter of Rights and the Quebec Charter of Human Rights and Freedoms.
“The decision confirms that trans people are protected by the equality provisions of the Canadian and Quebec Charters,” said Michael Lubetsky, a Toronto lawyer with Davies Ward Phillips & Vineberg LLP who represented Egale Human Rights Trust, an intervener in the case. “And, very importantly, it confirms that lack of access to proper identity records constitutes unconstitutional violations of equality rights, dignity rights, and life, liberty and security rights of trans people.”
The constitutional challenge, launched in 2014 by the Centre for Gender Advocacy, an independent, student-funded group at Concordia University in Montreal, advocated for the rights of four different trans communities, including trans parents, trans youth, trans people without citizenship, and non-binary people or those who do not identify with the male-female gender binary, with each of the groups raising different but related issues.
“What’s striking about the case and the judgment is that it’s one of the few cases that gathers many marginalized communities,” said Dalia Tourki, an advocate of the Centre for Gender Advocacy and consultant with a Conseil Quebecois LGBT, an organization for the collective defense of LGBT rights. “They’re part of the larger umbrella trans and non-binary community but at the same time these are sub-communities that also have their own realities,” added Tourki, who is now studying law at McGill University.
To begin with, Quebec Superior Court Justice Gregory Moore found that an identity document that does not properly identify transgender and non-binary people contributes to their precarious lives. “Legislation that does not acknowledge transgender identity and non-binary identity leaves them without legal existence and denies their right to dignity,” held Justice Moore in Center for Gender Advocacy c. Attorney General of Quebec 2021 QCCS 191. “Their right to equal protection and benefit of the law is infringed because they cannot obtain an act of of birth that identifies them and that makes it easier for them to prove their civil status. By contributing to their vulnerability to suicide, their rights to life, security and inviolability are also engaged.”
Justice Moore struck down the provision in the Civil Code that only recognizes masculine and feminine genders as it does not allow non-binary people to change the designation of sex on their act of birth to correspond to their gender identity, thereby violating the dignity and equality rights of non-binary people.
Justice Moore also held that trans parents have a right to change their name and designation on their child’s birth certificates, and non-binary parents have a right to identify as “parent” as opposed to “mother” or “father.”
Following the decision, non-citizens who are Quebec residents will no longer be prevented from changing the designation of sex and their name on the act of birth that is kept in the registry of civil status, the provincial government’s primary and “most reliable source” of personal information as it contains information to identify an individual’s birth, civil union and death. Moreover, trans youth over the age of 14 will no longer be required to produce an attestation from a health professional in order to change their sex designation.
“One of the major things this case shows is the discrimination that people can face when they’re forced to have identity documents that don’t actually reflect their gender identity,” noted Audrey Boctor, a Montreal lawyer with IMK LLP who successfully argued the case. “The findings of fact regarding its impacts, which include increased suicide rates amongst the trans population, is a really important finding, a devastating one, but one that was really important for the Court to make.”
Thanks to the ruling, Quebec is nearly on par with most of the rest of Canada on trans rights, according to legal experts. Quebec used to be on the vanguard of trans rights, beginning in the 1970s when it made it possible to change a sex designation, with a surgical requirement to change sex. That was followed by a Quebec Human Rights Tribunal decision in 1998, Commission des droits de la personne et des droits de la jeunesse c. Maison des jeunes A…, 1998 CanLII 28 (QC TDP), that broadened legal protections for trans people. But afterwards, Quebec lagged behind the rest of the country. Even when the Quebec undertook legislative reforms in 2013 and 2015, it fell short and left gaps, said Robert Leckey, dean of McGill University’s law department and an expert in family law. In 2013, the Quebec government allowed a person to apply to change their designation of sex without having undergone any medical treatment. Two years later, it allowed adults to change their legal gender on birth certificates.
In the meantime, in the rest of Canada a combination of amendments to human rights legislation, successful human rights challenges and subsequent legislative changes increased trans people’s access to identity papers, points out University of Ottawa law professor Samuel Singer – and one of the co-plaintiffs — in an academic paper entitled “Trans rights are not just human rights.”
“The ruling is crucially important for the people involved,” remarked Leckey. “But the overall legislative scheme accepts the basic idea that there is a difference between sex and gender identity and accepts that people should be able to change their legal designation and to change their name. With this this judgment, Quebec is catching up to where some other provinces have already been. Nothing here is putting Quebec in a pioneering position.”
There’s still work to be done, said Lubetsky. Though Justice Moore ruled overwhelmingly in favour of the plaintiffs, they did not succeed in convincing him to declare the obligation to designate a child’s sex within 30 days of the the child’s birth to be optional. Parents, the plaintiffs argued, should be able to choose whether to designate their child’s gender identity or allow it to develop on its own. They further argued that the obligation to designate a sex does not take into account intersex babies, who might be born with the partially formed genitalia of each sex. “The obligation to designate a newborn’s sex on their act of birth is not discriminatory,” held Justice Moore. “There is no inconsistency between a person’s sex and gender at birth because newborns do not have a gender identity.”
But Lubetsky, echoing the views of other lawyers, doesn’t understand why it is not possible to leave the gender designation blank. “The decision really doesn’t address what should be done in the case of intersex people,” said Lubetsky. “That is certainly an unresolved issue, and I’m quite sure we’ve not heard the last of it.”
Another unresolved issue deals with the parent’s right to veto a name change for those between 14 and 17 years of age. The plaintiffs argued that parents often do not understand or accept their child’s trans identity and therefore do not support their applications to change their name. Justice Moore upheld that parent’s right to object to their child’s application to change their name, pointing out that Article 62 of the Civil Code does allow the registrar or the court to disregard the parent’s objection if there is a compelling reason. “Young people will unfortunately still face a barrier,” said Boctor. “Hopefully, given the findings of fact in the judgment, particularly about the vulnerability of trans youth that don’t have family support, that that’s something that can be rectified in the context of changes that will need to be made in the Civil Code.”
That’s something that Tourki is counting on. Tourki is hoping that the Quebec government will sit down with trans and non-binary community members, and find ways to remedy the situation. “I hope that in the process the legislator takes into account that there shouldn’t be any more legal violence or systemic violence towards intersex people and trans youth who the most vulnerable sub-community in the trans and non-binary community in general.
Justice Moore suspended the declaration of invalidity for the unconstitutional provisions of the Civil Code until year end to give the Quebec government time to make the necessary amendments. But that all hinges on whether the ruling will be appealed, and that’s far from certain.
“The government resisted this really hard, and played procedural hardball along the way,” said Leckey. “I don’t want to get into predictions but if you think about the kind of constituency for the current government, I’m not sure many of them would have spent a lot of time thinking about non-binary parents for example. So I could see why politically this judgment might not be that congenial to the current government but I hope they don’t feel it. It will be very disappointing if the Quebec government appeals this decision.”
This story was originally published in The Lawyer’s Daily.