GENDER IDENTITY: DEVELOPMENTS IN THE LAW AND HUMAN RIGHTS PROTECTIONS.

• Author: Picard, Brenda
• Position: Forum: Rights in Times of Challenge

Introduction

To begin, ask yourself: How many times have you been asked to indicate your sex on an application form? Is it a difficult question to answer? Do you wonder why the information is necessary? How many of your identification documents indicate your sex?

Throughout history, men and women have held different rights; and, to enforce those rights, identifying a person as a man or woman was considered relevant. Today, while there are still imbalances between men and women, there should not be any discrepancies in benefits or opportunities available to a man or a woman; the purpose for gender identification is consequently diminished. (1)

Comparatively, if you had to list your race, religion, and sexual orientation on every form on which you indicate your sex, you would be more likely to object. Many of us do not hesitate to answer a question about our sex because it is not a difficult question to answer, but for people who identify as trans or for people who do not identify using binary terms, this question may bring about anxiety, fear, frustration and discrimination.

This article is designed to be a general education and interest article. It is intended to be a valuable education piece for law students, lawyers, judges, and the general public on the topic of gender identity in the law. In particular, this article will explore issues faced by people in the trans community relating to identification documents and access to health services and will explore case law and changes in legislation which have attempted to address discrimination related to these issues. This article is informed by my perspective and experience as the Executive Director of the Prince Edward Island ("PEI") Human Rights Commission and will draw on the PEI experience to illustrate these issues, while at the same time exploring them within the broader Canadian context.

Sex and gender are terms that are often used interchangeably in common parlance, but our understanding of gender has changed significantly over time. We now understand that gender is not binary. It is on a spectrum. Over the past five years I have had the privilege of learning and beginning to understand some of the challenges faced by people who do not identify with the sex they were assigned at birth. Some identify as trans male or trans female, while others do not identify with the binary concepts of male or female at all. I certainly do not profess to have a complete understanding of all of the legal or social challenges faced by people whose gender identity does not conform to what the majority of people understand to be the "norm". I have had the opportunity to review decisions of human rights tribunals and courts; I have had discussions with my colleagues at other human rights commissions; and, I have had the privilege of meeting individuals who are living with these challenges and others who support and advocate for and with them. This paper draws on all of those sources.

What is clear across these sources is that trans people experience discrimination in many areas of their lives, including services, employment, and housing. As a result, there is a need for the general public, employers, employees, service providers, landlords, lawyers, judges, doctors, other professionals and government personnel to have a better understanding of the experiences and rights of trans people in their communities.

Discrimination often occurs because people do not understand or accept other people whose life experiences or personal characteristics are different from their own. Sometimes it happens out of a lack of understanding of people's rights and responsibilities. Whether or not it is deliberate and intentional, the impact of the discriminatory behaviour is detrimental.

This paper is intended to bring awareness to some of the challenges, rights and responsibilities impacting people who identify as trans, two spirited, queer, nonbinary, gender non-conforming, gender fluid or something else entirely. This article in intended to challenge its audience to think about why society operates the way that it does and what we could do differently in our legal, professional or social communities. Some changes would have little to no apparent impact on many people, but would make a significant impact and improvement to the lives of others.

For ease of reading, I will use the terms trans person or trans people unless the context requires more detail. In no way do I intend any offence to people who use another identity. People with non-binary or gender non-conforming identities experience many of the same issues and may also have additional challenges.

In discussions about gender identity, people refer to the acronym LGBTQ (2) (lesbian, gay, bisexual, trans, queer/questioning, two spirited). I have intentionally chosen not to do so. Some of the letters of this acronym represent a person's sexual orientation while others represent their gender identity. A trans person may identify as gay, lesbian, straight, bisexual or queer just like cis people and people who do not identify as trans. Sexual orientation and gender identity are distinct concepts which are protected separately in human rights legislation. We must challenge stereotypes and ensure that every trans person is respected for who they are as an individual.

I hope the audience for this article finds it insightful and thought provoking and that it helps encourage the popular dialogue about gender identity and gender expression in an informed way. I challenge my audience to consider the ongoing struggles faced daily by trans people in our community, and to treat everyone with dignity and respect.

Understanding gender identity and gender expression

In order to understand this paper it is important to ensure a common understanding of the terms used. I borrow the following definitions from the Ontario Human Rights Commission. (2)

Sex: the classification of people as male, female or intersex. Sex is usually assigned at birth and is based on an assessment of a person's reproductive systems, hormones, chromosomes and other physical characteristics.

Gender identity: each person's internal and individual experience of gender. It is a person's sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person's gender identity may be the same as or different from their birth-assigned sex.

For most people, their sex and gender identity align. For some, it does not. A person may be born male but identify as a woman, or born female but identify as a man. Other people may identify outside the categories of woman/man, or may see their gender identity as fluid and moving between different genders at different times in their life.

Gender expression: how a person publicly presents or expresses their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun are also common ways people express their gender. Others perceive a person's gender through these attributes.

All people, regardless of their gender identity, have a gender expression and they may express it in any number of ways. For trans people, their chosen name, preferred pronoun and apparel are common ways they express their gender. People who are trans may also take medically supportive steps to align their body with their gender identity.

Trans or transgender: an umbrella term that describes people with diverse gender identities and gender expressions that do not conform to stereotypical ideas about what it means to be a girl/woman or boy/man in society. "Trans" can mean transcending beyond, existing between, or crossing over the gender spectrum. It includes but is not limited to people who identify as transgender, transsexual, cross dressers or gender nonconforming (gender variant or gender queer).

Trans includes people whose gender identity is different from the gender associated with their birth-assigned sex. Trans people may or may not undergo medically supportive treatments, such as hormone therapy and a range of surgical procedures, to align their bodies with their internally felt gender identity.

People who have transitioned from one gender to another may simply identify as female or male. Others may also identify as trans, as a trans woman or a trans man. Some people may identify as trans and not use the labels "female" or "male." Others may identify as existing between male and female or in different ways beyond the binary of male/female.

Trans people may identify their gender in many ways. There is no single or universal experience of what it means to be trans. As a result, different trans people face distinct forms of discrimination in society, and this may relate to whether they identify as male, female, a person with a trans history, a person in the process of transitioning, a trans man. trans woman, transsexual, or gender non-conforming.

Gender non-conforming/gender variant/gender queer: individuals who do not follow gender stereotypes based on the sex they were assigned at birth. They may identify and express themselves as "feminine men" or "masculine women" or as androgynous, outside of the categories "boy/man" and "girl/woman." People who are gender non-conforming may or may not identify as trans.

Lived gender identity: the gender a person internally feels ("gender identity" along the gender spectrum) and publicly expresses ("gender expression") in their daily life including at work, while shopping or accessing other services, in their housing environment or in the broader community.

Cisgender and cisnormativity: most people are "cisgender" (not trans); that is, their gender identity is in line with or "matches" the sex they were assigned at birth. Cisnormativity ("cis" meaning "the same as") refers to the commonplace assumption that all people are cisgender and that everyone accepts this as "the norm." The term is used to describe prejudice...