Government treatment of transgendered people discriminatory: tribunal

The Ontario government must stop requiring transgendered people to have surgery before they can change the sex designation on their birth certificates, the Human Rights Tribunal of Ontario has ordered.

Ruling in XY v. Ontario (Government and Consumer Services),  HRTO vice chairwoman Sheri Price considered the complaint of a male-to-female transgendered person that the requirement was discriminatory on the basis of unequal treatment on the grounds of sex and/or disability. The woman, XY, had in fact had a bilateral orchiectomy in order to change the designation on her birth certificate — which she did successfully — but she then went on to challenge the requirement before the HRTO.

The government’s response included a number of defences, including the argument that XY did in fact get her birth certificate changed and that the requirement advances the legitimate public policy objective of ensuring the accuracy of registered vital event data. It also argued the requirement was reasonable and bona fide with the meaning of the Human Rights Code.

Price, however, saw the issue differently and ordered the government to change the requirement. “I further find that the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had ‘transsexual surgery’ is substantively discriminatory because it exacerbates the situation of transgendered persons as a historically disadvantaged group, and thus perpetuates their disadvantage,” wrote Price.

“In the alternative, the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had ‘transsexual surgery’ is substantively discriminatory because it perpetuates stereotypes about transgendered persons and their need to have surgery in order to live in accordance with their gender identity, among other things.”

The Ontario Human Rights Commission, which intervened in the matter, is lauding the decision.

“Transgender people’s rights are human rights,” said chief commissioner Barbara Hall. “This decision is a welcome step forward in recognizing and promoting the dignity and equality of trans people.”

Price’s order gives the government 180 days to revise the criteria for changing the sex designation on a birth registration.

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