C A N A D A PROVINCE OF QUEBEC DISTRICT OF MONTREAL No 500-17-
S U P E R I O R C O U R T (CIVIL DIVISION) CENTRE FOR GENDER ADVOCACY, a legal person having its head office at 2110 MacKay Street, in the City and District of Montreal, Province of Quebec, H3G 1M8 Plaintiff v. THE ATTORNEY GENERAL OF QUEBEC, having a place of business at 1 Notre-Dame Street East, Suite 8.01, in the City and District of Montreal, Province of Quebec, H2Y 1B6 Defendant
MOTION TO INSTITUTE PROCEEDINGS FOR A DECLARATORY JUDGMENT (Art. 110, 453 & 456 C.C.P.) ________________________________________________________________________________ IN SUPPORT OF ITS MOTION TO INSTITUTE PROCEEDINGS FOR A DECLARATORY JUDGMENT, PLAINTIFF STATES AS FOLLOWS: I.
INTRODUCTION
1.
This case is about transgender and intersex individuals, who are among the most vulnerable persons in our society, having historically experienced, and continuing to experience, exclusion, prejudice and discrimination of all forms, thereby preventing them from being considered and treated as equal and fully participating members in our society;
2.
Plaintiff, a not-for-profit organization that has for numerous years been helping trans individuals and advocated on their behalf, is instituting the present proceedings in order to remove some of the legal barriers that prevent transgender and intersex individuals’ full participation in society;
3.
Plaintiff is thereby challenging the validity of art. 71, 72, 111, 115 and 116 of the Civil Code of Quebec, S.Q. 1991, c. 64 (the “CCQ”);
4.
Articles 71 and 72 CCQ require, as conditions for a change of sex designation on one’s act of birth, that the person have “successfully undergone medical treatments and surgical operations involving a structural modification of the sexual organs intended to
-2change his secondary sexual characteristics”, that the person be a Canadian citizen and be at least eighteen years of age; 5.
Said requirements are contrary to ss. 1, 4, 5 and 10 of the Charter of Human Rights and Freedoms, CQLR, c. C-12 (the “Quebec Charter”) and ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Canadian Charter”);
6.
Articles 71 and 72 must therefore be declared invalid and of no force or effect pursuant to s. 52 of the Quebec Charter and s. 52 of the Canadian Charter;
7.
Articles 111, 115 and 116 CCQ provide that an attestation of birth and a declaration of birth must state the sex of the child;
8.
Plaintiff intends to demonstrate that so far as they mandate in every case that the sex of the child be included in acts of birth, these provisions are contrary to ss. 1, 4 and 10 of the Quebec Charter and ss. 7 and 15 of the Canadian Charter;
9.
As a result, Plaintiff is seeking a declaration, pursuant to s. 52 of the Quebec Charter and s. 52 of the Canadian Charter, that art. 111, 115 and 116 CCQ must be read so as to make the sex designation in acts of birth optional as opposed to mandatory;
II.
CENTRE FOR GENDER ADVOCACY
10.
Plaintiff Centre for Gender Advocacy was founded in 1983, an offshoot of Concordia’s Women Centre;
11.
It is an independent, student-funded organization, mandated to promote gender equality and empowerment particularly as it relates to marginalized communities, the whole as appears from a copy of the Plaintiff’s constitution and bylaws, communicated as Exhibit P-1;
12.
Plaintiff’s mandate is achieved through ongoing programming, campaigns, resources, services to the community, and advocacy;
13.
Plaintiff believes that gender oppression is inextricably linked to social and economic justice, and works within a feminist framework that challenges systemic oppressions;
14.
To this end, Plaintiff works in support and in solidarity with broader social movements;
15.
It promotes gender self-determination, bodily sovereignty, and self-love;
16.
Plaintiff, guided by its membership, fulfills its mandate by: (a)
Facilitating social action through ongoing programming and campaigns, as well as building coalitions and working in solidarity with grassroots social movements;
(b)
Providing respectful, confidential peer-to-peer support, advocacy, and resources for those who seek it with a focus on harm reduction, empowerment and selfdetermination;
-3(c)
Collaborating with volunteers on existing and volunteer-initiated activities;
(d)
Providing a multi-media resource centre and library, open to the public, as directed by membership contributions and requests, that promotes independent local distributors and publishers; and
(e)
Providing an accessible space to facilitate community organizing and action;
17.
In the last 10 years, an important portion of the Plaintiff’s work has been devoted to the defence of trans rights and to providing specifically dedicated services to trans people;
18.
Plaintiff offers regular training sessions on trans realities, both in academic and community contexts, and it is regularly invited to take part in debates and discussions on trans issues;
19.
By no means an exhaustive list, Plaintiff has shared its expertise on trans experience and realities as well as the barriers faced by trans people with organizations such as: (a)
Royal Victoria Hospital Foundation;
(b)
Jeanne-Sauvé Foundation;
(c)
Programs in Whole Person Care at McGill University;
(d)
Lasalle College;
(e)
Dawson College;
(f)
University of Sherbrooke’s School of Medicine;
(g)
Association des étudiants et étudiantes en service social de l'Université de Montréal;
(h)
Comité détresse psychologique et santé mentale de Rosemont;
(i)
YWCA of Montreal;
(j)
Cégep du Vieux-Montréal; and
(k)
UPop Montréal;
20.
Plaintiff takes part in two national research committees on trans identities and realities under the auspices of the Canadian AIDS Society and the Trans Youth Health Survey;
21.
Plaintiff is a member of the Trans Committee of the Conseil québécois LGBT, which includes over 35 organizations, researchers and health professionals;
22.
As a member of the Trans Committee, Plaintiff was involved with the preparation of a brief containing demands for trans people that was submitted to the Bureau de lutte à
-4l’homophobie on May 4, 2012, the whole as appears from a copy of the brief, communicated as Exhibit P-2; 23.
Also as a member of the Trans Committee, Plaintiff was involved in the preparation of the Committee’s submissions to the National Assembly on Bill 35, which granted some of the demands made on behalf of trans people by amending certain provisions of the CCQ, the whole as appears from a copy of the submissions, communicated as Exhibit P-3;
24.
In addition to its educational and advocacy missions, Plaintiff offers direct help and assistance to, amongst others, individuals who question their gender identity and to transitioning persons, as well as to their friends and families;
25.
Plaintiff’s services are offered by phone and in person, through the sharing of transition information and strategies as well as through active listening;
26.
Plaintiff further maintains a list of health and mental care professionals with expertise and knowledge of trans realities and who can assist trans people;
27.
Trans individuals of all ages and walks of life access the Plaintiff’s services, including individuals who are transitioning late in life as a result of having been prevented from doing so at an earlier age by medical, psychological, social, legal or financial barriers;
28.
Plaintiff works with parents who must live with the institutional and legal discrimination trans children are facing;
29.
Trans immigrants who have yet to acquire Canadian citizenship and who are having an even harder time integrating into Quebec society than non-trans immigrants do also receive assistance and guidance from Plaintiff’s programs, which acts as a resource and networking hub for trans immigrants;
30.
Plaintiff’s close relationship with Concordia University allows it to have a more direct impact on the integration of trans individuals, whether Canadian or not, within the campus community;
31.
For example, Plaintiff was instrumental in the adoption of Concordia University’s policy that allows trans individuals to officially use the name of their choosing in all internal university communications and documents, irrespective of whether or not they have obtained a legal name change;
32.
Plaintiff is currently planning training sessions on inclusiveness and trans discrimination prevention with the university’s health clinic and its sport and recreation services;
33.
Plaintiff has the expertise as well as the human and financial resources to lead this case and to bring it to its ultimate conclusion;
34.
Through its network, Plaintiff is well connected with experts on different aspects of trans realities, experts who have been contacted by Plaintiff and who have already agreed to prepare reports and testify at trial in this case;
-535.
Moreover, since this case covers different trans realities and groups of trans people, namely transgender and intersex individuals, Plaintiff is in a better position than a single individual would be to bring this case forward;
36.
Concerns for one’s privacy and security of the person, which unfortunately continue to plague the trans community, act as further impediments against individuals acting as plaintiffs in a case like this one;
37.
Yet Plaintiff, through its network, has identified transgender and intersex individuals, as well as parents of trans children, who have agreed to come and testify before this Court about their realities;
38.
Based on the foregoing, Plaintiff has public interest standing to institute these proceedings;
III.
STATUTORY PROVISIONS AT ISSUE
39.
Articles 71 and 72 CCQ currently provide that the designation of sex which appears on an act of birth can be changed upon application filed with the Registrar of Civil Status if the person applying satisfies four conditions: (a)
The person “has successfully undergone medical treatments and surgical operations involving a structural modification of the sexual organs intended to change his secondary sexual characteristics”, attested by the person’s attending physician and another physician practicing in Quebec (the “Medical Treatments and Surgical Operations Requirement”);
(b)
The person is of full age, i.e. at least eighteen years old (the “Age Requirement”);
(c)
The person has been domiciled in Quebec for at least one year; and
(d)
The person is a Canadian citizen (the “Citizenship Requirement”);
40.
As for art. 111, 115 and 116 CCQ, they currently require that the sex of all newborn children be indicated on their attestation of birth or their declaration of birth, as applicable (the “Sex Indication Requirement”);
IV.
BILL 35
41.
Bill 35, An Act to amend the Civil Code as regards civil status, successions and the publication of rights, was adopted by the National Assembly on December 6, 2013 and assented to on the same day, the whole as appears from a copy of Bill 35, communicated as Exhibit P-4;
42.
Bill 35 was the then Quebec Government’s response to some of the demands made by the trans community: (a)
Sections 1 and 2 amended art. 63 and 67 CCQ to remove the obligation that was imposed on the Registrar of Civil Status to publish changes of sex designation and
-6changes of name when requested in connection with a change of the person’s gender identity in the Gazette officielle; (b)
Sections 3, 4 and 5 replaced art. 71, 72 and 73 CCQ, removing the Medical Treatments and Surgical Operations Requirement as a condition to obtain a change of sex designation. The CCQ provisions were to read as follows: 71. Every person whose sexual identity does not correspond to the designation of sex that appears in that person’s act of birth may, if the conditions prescribed by this Code and by government regulation have been met, have that designation and, if necessary, the person’s given names changed. These changes may in no case be made dependent on the requirement to have undergone any medical treatment or surgical operation whatsoever. Subject to article 3084.1, only a person of full age who has been domiciled in Québec for at least one year and is a Canadian citizen may obtain such changes. 72. The application is made to the registrar of civil status; the documents prescribed by government regulation must also be provided. 73. The application is subject to the same procedure as an application for a change of name, except as to publication requirements, and to the same duties. A change of designation of sex has, with the necessary modifications, the same effects as a change of name.
(c)
Section 38 added art. 3084.1 to the CCQ, granting the Registrar of Civil Status the power to change the designation of sex that appears on the act of birth of a person who was born in Quebec but is domiciled outside Quebec, when it is impossible to make such a change in the country where the person is domiciled;
43.
Section 44 of Bill 35 provided for its coming into force on December 6, 2013, except for ss. 1 to 5, which were to come into force on a date or dates to be set by the Government;
44.
Sections 1 and 2, removing the publicity requirements, have now come into force, but no date has been set yet for ss. 3 to 5, which are the changes most crucial to trans people;
45.
Moreover, the draft regulations that were to be adopted along with the changes to art. 71, 72 and 73 CCQ have yet to be released;
46.
As of the date of these proceedings, any person who wishes to obtain a change of sex designation in Quebec must still meet the Medical Treatments and Surgical Operations Requirement, in addition to the Age Requirement and the Citizenship Requirement, which were not affected by Bill 35;
-7V.
ARTICLES 71 AND 72 CCQ
A.
MEDICAL TREATMENTS AND SURGICAL OPERATIONS REQUIREMENT a.
Right to Life, Security and Inviolability of the Person (s. 1 of the Quebec Charter and s. 7 of the Canadian Charter)
47.
In order to satisfy the Medical Treatments and Operations Requirement, a person has to take hormonal treatments and undergo surgeries that may include, depending on the individual, hysterectomy, mastectomy, chest masculinization , and sex reassignment;
48.
Like all medical treatments, these surgeries pose some health risks and in some cases may even be counter-indicated;
49.
Hysterectomies and sex reassignment surgeries also involve the sterilization of the person;
50.
Although said medical treatments are often necessary in order to ensure the full realization and well-being of transgender individuals, in other cases, they may pose unwanted or unnecessary risks to their physical and mental health;
51.
As such, certain individuals who would not otherwise have needed or wanted surgeries and medical treatments, or for whom they pose a greater risk, may decide to undergo them nonetheless in order to obtain a change of sex designation, thereby undermining the requirement that every surgery and medical treatment be freely consented to;
52.
By requiring that every individual who wishes to have the designation of their sex changed meet the Medical Treatments and Surgical Operations Requirement, art. 71 and 72 CCQ violate those individuals’ right to life, personal security and inviolability as protected by s. 1 of the Quebec Charter;
53.
Moreover, the Medical Treatments and Surgical Operations Requirement is (i) arbitrary in the choice of surgeries and treatments it requires, (ii) overbroad, as there is no connection between what is required from individuals who do not want to or cannot undergo the required surgeries and operations and the law’s goals, which is to favour greater inclusion of transgender persons into society, and (iii) grossly disproportionate, in that the nature of the surgeries and treatments required to comply with the law is totally out of sync with the objective of allowing transgender individuals to have the sex designation appearing on their official documents correspond to their lived and felt gender identity;
54.
As a result, art. 71 and 72 CCQ deprive transgender individuals of their right to life and security of the person in a manner that is not consistent with the principles of fundamental justice, in violation of s. 7 of the Canadian Charter; b.
55.
Right to freedom, liberty and dignity (ss. 1 and 4 of the Quebec Charter and s. 7 of the Canadian Charter)
Many individuals who wish to change their sex designation do not wish to undergo the medical interventions necessary to comply with the Medical Treatments and Operations Requirement;
-856.
The decision to undergo surgeries is a matter of personal need and should be treated as such by the law;
57.
However, because of the Medical Treatments and Surgical Operations Requirement, individuals wishing to change the designation of their sex, a fundamental personal decision, are unable to do so autonomously without the interference of the state;
58.
Consequently, the Medical Treatments and Surgical Operations Requirement violates the right of transgender individuals to freedom protected by s. 1 of the Quebec Charter;
59.
For the foregoing reasons and those enounced at paragraphs 53 and 54 supra, the Medical Treatments and Surgical Operations Requirement deprives transgender individuals of their right to liberty in a manner that is not consistent with the principles of fundamental justice, in violation of s. 7 of the Canadian Charter;
60.
Moreover, the Medical Treatments and Surgical Operations Requirement interferes with a fundamental attribute of all human beings and, as such, with the dignity of transgender individuals;
61.
The Medical Treatments and Surgical Operations requirements thus violates the right of transgender individuals to the safeguard of their dignity as protected by s. 4 of the Quebec Charter; c.
Right to Privacy (s. 5 of the Quebec Charter)
62.
For those individuals whose gender identity does not correspond to the gender that was assigned to them at birth, the choice to change their designation of sex and/or to undergo treatments and surgeries involves personal considerations having lasting, significant and multiple physical as well as psychological consequences;
63.
The Medical Treatments and Surgical Operations Requirement thus violates the right to privacy protected by s. 5 of the Quebec Charter; d.
Equality rights (s. 10 of the Quebec Charter and s. 15 of the Canadian Charter)
64.
Whereas a non-transgender person may obtain a birth certificate that conforms to his or her lived and felt identity, a transgender individual who wishes to obtain the same benefit is subject to the Medical Treatments and Surgical Operations Requirement;
65.
The law draws a further distinction between those transgender individuals who choose to undergo the surgeries and treatments required to comply with art. 71 and 72 CCQ on the one hand, and those transgender individuals who choose not to go ahead with some or all of the required surgeries and treatments, or who cannot undergo such procedures for medical, financial or other personal reasons, on the other hand. The former are allowed to obtain a birth certificate that conforms to their lived and felt identity, while the latter cannot obtain the same benefit;
66.
The Medical Treatments and Surgical Operations Requirement thus results in a distinct and disadvantageous treatment of some transgender individuals, on the basis of their status as transgender persons, and therefore on the grounds of sex;
-967.
This distinction exacerbates the situation of transgender persons as a historically disadvantaged group and perpetuates stereotypes about transgender individuals and their need to have surgery in order to live in accordance with their felt gender identity;
68.
The Medical Treatments and Surgical Operations Requirement also imposes a burden on transgender individuals who are in the process of transitioning and are already living under their felt gender identity but who have not completed the surgeries and treatments necessary to qualify for sex change designation under art. 71 and 72 CCQ, which can take several months or years;
69.
Consequently, the Medical Treatments and Surgical Operations Requirement violates the equality rights protected by s. 10 of the Quebec Charter and s. 15 of the Canadian Charter;
B.
AGE REQUIREMENT a.
Right to freedom, liberty and dignity (ss. 1 and 4 of the Quebec Charter and s. 7 of the Canadian Charter)
70.
A person’s gender identity is formed prior to the age of eighteen. The Age Requirement is, as such, disconnected with the realities of gender identity development;
71.
This disconnect interferes with the dignity of those whose gender identity does not correspond to the gender which was assigned to them at birth by forcing them, until the age of eighteen, to live under an official gender which does not correspond to their felt identity;
72.
These persons cannot exercise their autonomy in the making of fundamental personal decisions without the interference of the state;
73.
Furthermore, the Age Requirement fails to acknowledge the possibility for parents to accompany their child and to make certain decisions that are in their best interest, including to have the sex designation on their act of birth changed to correspond to their felt and lived identity;
74.
Consequently, the Age Requirement violates the rights of underage transgender individuals to freedom and to the safeguard of their dignity, as protected by ss. 1 and 4 of the Quebec Charter;
75.
Moreover, the Age Requirement is (i) arbitrary, in that individuals between fourteen and eighteen years of age are allowed under the CCQ to make other fundamental decisions without their parents’ consent or authorization, and in turn parents are allowed to make important decisions on their children’s behalf before the age of fourteen, (ii) overbroad, as there is little connection between the Age Requirement and the law’s goal, which is to favour greater inclusion of transgender persons into society, and (iii) grossly disproportionate, in that the Age Requirement forces underage transgender individuals and their parents to choose between hiding their felt identity or that of their children until they turn eighteen or living under a felt identity that does not correspond to their official identity, thereby exposing them to a greater risk of prejudice;
- 10 76.
As a result, art. 71 and 72 CCQ deprive underage transgender individuals and their parents of their right to liberty in a manner that is not consistent with the principles of fundamental justice, in violation of s. 7 of the Canadian Charter; b.
Right to Privacy (s. 5 of the Quebec Charter)
77.
Because a person’s gender identity is of an inherently intimate and private nature, the Age Requirement interferes with a person’s right to make fundamentally personal decisions free from unjustified external interference;
78.
The Age Requirement also interferes with the right of parents to make such decisions when they are in their child’s best interest, while forcing them to either conceal their child’s true identity or expose their child and themselves to the risk of prejudice, while having to disclose to the public matters that are of an inherently public nature;
79.
The Age Requirement thus violates the right to privacy of transgender children and their parents protected by s. 5 of the Quebec Charter; c.
Equality Rights (s. 15 of the Canadian Charter)
80.
Whereas transgender individuals aged eighteen and over may obtain a birth certificate that conforms to their lived and felt identity, underage transgender individuals who wish to obtain the same benefit cannot;
81.
The Age Requirement thus results in a distinct and disadvantageous treatment of minor persons on the ground of age;
82.
This distinction perpetuates stereotypes about minor persons as not being mature enough to make rational decisions and as being unaware of their identity;
83.
Consequently, the Age Requirement violates the equality rights of underage transgender individuals protected by s. 15 of the Canadian Charter; d.
Relationship between the Age Requirement and Medical Treatments and Surgical Operations Requirement
84.
Though the unsuitable nature of the Age Requirement is heightened once the Medical Treatments and Surgical Operations Requirement is removed, at least in the case of individuals aged between fourteen and eighteen (who already have the capacity to consent alone to care required for their health), the Age Requirement violates ss. 1, 4 and 5 of the Quebec Charter and ss. 7 and 15 of the Canadian Charter irrespective of whether the surgical requirement remains;
C.
CITIZENSHIP REQUIREMENT a.
85.
Right to Freedom, Liberty and Dignity (ss. 1 and 4 of the Quebec Charter and s. 7 of the Canadian Charter)
Residents of Canada who are not Canadian citizens may also wish to change their sex designation, which is a fundamental personal decision;
- 11 86.
Under the current regime, these individuals cannot exercise their autonomy in the making of this fundamental personal decision without the interference of the state;
87.
For this reason, the Citizenship Requirement violates non-Canadian transgender individuals’ right to freedom as protected by s. 1 of the Quebec Charter;
88.
Moreover, the Citizenship Requirement is (i) overbroad, as there is little connection between the Citizenship Requirement and the law’s goal, which is to favour greater inclusion of transgender persons into society, and (ii) grossly disproportionate, in that the Citizenship Requirement forces non-Canadian transgender individuals to choose between hiding their felt identity or having a felt identity that does not correspond to their official identity, thereby exposing them to a greater risk of prejudice and making their integration into Canadian society that much harder;
89.
As a result, art. 71 and 72 CCQ deprive non-Canadian transgender individuals of their right to liberty in a manner that is not consistent with the principles of fundamental justice, in violation of s. 7 of the Canadian Charter;
90.
In addition, the Citizenship Requirement prevents non-Canadian transgender individuals from expressing a fundamental attribute of their lived experience, an attribute which transcends citizenship and in fact has nothing to do with a person’s nationhood;
91.
This amounts to an institutionalized exclusion which is humiliating and interferes with a person’s dignity, in violation of the right to the safeguard of one’s dignity protected by s. 4 of the Quebec Charter; b.
Right to Privacy (s. 5 of the Quebec Charter)
92.
Because a person’s gender identity is of an inherently intimate and private nature, the Citizenship Requirement interferes with a person’s right to make fundamentally personal decisions free from unjustified external interference;
93.
The Citizenship Requirement thus violates the right to privacy of non-Canadian transgender individuals protected by s. 5 of the Quebec Charter; c.
Equality Rights (s. 15 of the Canadian Charter)
94.
Whereas Canadian transgender individuals may obtain a birth certificate that conforms to their lived and felt identity, a non-Canadian transgender individual who wishes to obtain the same benefit cannot;
95.
The Citizenship Requirement results in a distinct and disadvantageous treatment of nonCanadian transgender individuals on the ground of citizenship;
96.
The distinction perpetuates the view that non-Canadian citizens residing in Canada are less capable or less worthy of recognition or value as human beings or as members of Canadian society and exacerbates their historical disadvantages;
97.
In addition, because of the mismatch between their lived and felt gender and the gender appearing on their official documents, non-Canadian transgender individuals face an additional impediment to their already difficult integration into Quebec society;
- 12 98.
Consequently, the Citizenship Requirement violates the equality rights of non-Canadian transgender individuals protected by s. 15 of the Canadian Charter;
VI.
ARTICLES 111, 115 AND 116 CCQ
A.
SEX INDICATION REQUIREMENT a.
99.
Right to Freedom, Liberty and Dignity (ss. 1 and 4 of the Quebec Charter and s. 7 of the Canadian Charter)
Acts of birth are foundational identity documents and the information they contain carries both day-to-day as well as profound and lasting consequences, from the time of birth until one’s passing;
100. Yet from a medical, physiological and psychological standpoint, there is no necessary connection between a person’s gender identity and the gender which is assigned to them at birth: (a)
Transgender individuals are assigned a gender that does not match their gender identity; and
(b)
Intersex individuals, namely individuals whose chromosomes and/or genitalia do not fit the habitual male/female dichotomy, are assigned a gender that may or may not match the gender identity they will eventually develop;
101. As the legislative goal of identifying individuals can be achieved through other means that are either more objective (date and place of birth, name of the parents) or carry less of a permanent stigma (given name and last name), the designation of a child’s sex on an attestation or declaration of birth should be optional; 102. Indeed, a gender designation that does not match the gender identity eventually developed by the child has serious impacts on the child’s dignity, in violation of s. 4 of the Quebec Charter; 103. In addition, as a result of the combination of the Sex Indication Requirement and the Age Requirement, underage transgender and intersex individuals lose their right to exercise their autonomy in the making of a fundamental personal decision without the interference of the state; 104. Consequently, the Sex Indication Requirement violates transgender and intersex individuals’ right to freedom protected by s. 1 of the Quebec Charter; 105. Moreover, the Sex Indication Requirement is (i) arbitrary, in that the choice made by the accoucheur on an attestation of birth or by the person filling up a declaration of birth may not correspond to the gender identity that the child will eventually develop, (ii) overbroad, as there is little connection between the Sex Indication Requirement and the law’s goal, which is to identify children, and (iii) grossly disproportionate, in that the Sex Indication Requirement imposes a gender designation on transgender and intersex individuals, forcing them to conform from birth, in appearance and in behaviour, to a gender that may not correspond to the gender they eventually develop;
- 13 106. As a result, art. 111, 115 and 116 CCQ deprive transgender and intersex individuals of their right to liberty in a manner that is not consistent with the principles of fundamental justice, in violation of s. 7 of the Canadian Charter; b.
Right to Life, Security and Inviolability of the Person (s. 1 of the Quebec Charter and s. 7 of the Canadian Charter)
107. The Sex Indication Requirement imposes an even heavier burden on certain intersex individuals; 108. In some cases, when an intersex individual’s genitalia do not fit the habitual male/female dichotomy, the gender designation appearing on the person’s attestation of birth will be based on a determination made at birth by the attending physician, thereby creating pressure on the child’s family to accept the physician’s designation and to coerce the child into conforming to that designation, irrespective of the child’s true identity; 109. Furthermore, medical treatments and surgeries will often ensue, some of which will cause the child to grow up sterile, in order to “correct” any perceived anomaly in the child’s genitalia and have it conform to the gender chosen at birth; 110. Such treatments and surgeries may be followed at puberty with hormonal treatments, once again to ensure conformity between the gender designated at birth; 111. As a matter of fact, for such treatments and surgeries to be covered by the public health system, they must be completed before the child turns eighteen, after which point they cease to be reimbursed by the RAMQ; 112. These medical treatments and surgeries may be risky, are extremely invasive and leave several physical and psychological marks and sequelae; 113. In some cases, after having undergone years of treatments and surgeries to conform to the gender designated at birth, individuals come to realize that their true identity differs from that appearing on their acts of birth; 114. Consequently, the Sex Indication Requirement violates the right to life, personal security and inviolability protected by s. 1 of the Quebec Charter; 115. For the foregoing reasons and those enounced at paragraphs 105 and 106 supra, the Sex Indication Requirements deprive intersex individuals of their right to liberty in a manner that is not consistent with the principles of fundamental justice, in violation of s. 7 of the Canadian Charter; c.
Equality Rights (s. 10 of the Quebec Charter and s. 15 of the Canadian Charter)
116. Whereas a non-transgender and non-intersex person may readily obtain a birth certificate that conforms to his or her lived and felt identity, a transgender or intersex person who wishes to obtain the same benefit cannot do so without starting a burdensome and lengthy administrative procedure;
- 14 117. The Sex Indication Requirement thus results in a distinct and disadvantageous treatment of transgender and intersex individuals, on the basis of their status as transgender or intersex persons, and therefore on the grounds of sex and disability; 118. This distinction exacerbates the situation of transgender and intersex individuals as historically disadvantaged groups and perpetuates stereotypes about them, in addition to forcing them to take administrative action in order to live in accordance with their gender identity; 119. Consequently, the Sex Indication Requirement violates the equality rights protected by s. 10 of the Quebec Charter and s. 15 of the Canadian Charter.
WHEREFORE, MAY IT PLEASE THIS COURT TO: I.
GRANT the Plaintiff’s Motion to Institute Proceedings for a Declaratory Judgment;
II.
DECLARE that art. 71 and 72 of the Civil Code of Quebec are contrary to ss. 1, 4, 5 and 10 of the Quebec Charter;
III.
DECLARE that art. 71 and 72 of the Civil Code of Quebec are invalid and of no force or effect pursuant to s. 52 of the Quebec Charter;
IV.
DECLARE that art. 71 and 72 of the Civil Code of Quebec are contrary to ss. 7 and 15 of the Canadian Charter;
V.
DECLARE that art. 71 and 72 of the Civil Code of Quebec are invalid and of no force or effect pursuant to s. 52 of the Canadian Charter;
VI.
DECLARE that art. 111, 115 and 116 of the Civil Code of Quebec are contrary to ss. 1, 4 and 10 of the Quebec Charter;
VII.
DECLARE, pursuant to s. 52 of the Quebec Charter, that art. 111, 115 and 116 of the Civil Code of Quebec must be read so as to make the sex designation in acts of birth optional;
VIII. DECLARE that art. 111, 115 and 116 of the Civil Code of Quebec are contrary to ss. 7 and 15 of the Canadian Charter; IX.
DECLARE, pursuant to s. 52 of the Canadian Charter, that art. 111, 115 and 116 of the Civil Code of Quebec must be read so as to make the sex designation in acts of birth optional;
- 15 THE WHOLE with costs.
MONTREAL, this 2nd day of May 2014 (S) Irving Mitchell Kalichman LLP IRVING MITCHELL KALICHMAN LLP Attorneys for the Plaintiff CENTRE FOR GENDER ADVOCACY
- 16 -
AFFIDAVIT I, the undersigned, GABRIELLE BOUCHARD, having my professional domicile at 2110 MacKay Street, in the City and District of Montreal, Province of Quebec, H3G 1M8, hereby make the following solemn declaration: 1.
I am the Peer Support and Trans Advocacy Coordinator the Plaintiff Centre for Gender Advocacy;
2.
All the facts alleged at paragraphs 10 to 38 of the Motion to Institute Proceedings for a Declaratory Judgment are true.
AND I HAVE SIGNED:
GABRIELLE BOUCHARD
Solemnly declared before me in Montreal, this 2nd day of May 2014
Commissioner of oaths for Quebec
- 17 -
AVIS AU DÉFENDEUR (Article 119 C.p.c.)
NOTICE TO DEFENDANT (Article 119 C.C.P.)
PRENEZ AVIS que la partie demanderesse a déposé au greffe de la Cour supérieure du district judiciaire de Montréal la présente demande. Pour répondre à cette demande, vous devez comparaître par écrit, personnellement ou par avocat, au Palais de Justice de Montréal situé au 1, rue NotreDame Est, dans les 10 jours de la signification de la présente requête.
TAKE NOTICE that the Plaintiff has filed this action in the office of the Superior Court of the judicial district of Montreal. To file an answer to this action, you must first file an appearance, personally or by advocate, at the Montreal Courthouse located at 1 Notre-Dame Street East, within 10 days of service of this Motion.
À défaut de comparaître dans ce délai, un jugement par défaut pourra être rendu contre vous sans autre avis dès l’expiration de ce délai de 10 jours.
If you fail to file an appearance within the time limit indicated, a Judgment by default may be rendered against you without further notice upon the expiry of the 10-day period.
Si vous comparaissez, la demande sera présentée devant le tribunal le 5 juin 2014 à 9 h en la salle 2.16 du Palais de Justice de Montréal et le tribunal pourra, à cette date, exercer les pouvoirs nécessaires en vue d’assurer le bon déroulement de l’instance ou procéder à l’audition de la cause, à moins de convenir par écrit avec la partie demanderesse ou son avocat d’un calendrier des échéances à respecter en vue d’assurer le bon déroulement de l’instance, lequel devra être déposé au greffe du tribunal.
If you file an appearance, the action will be presented before the Court on June 5, 2014, at 9:00 a.m., in room 2.16 of the Montreal Courthouse. On that date, the court may exercise such powers as are necessary to ensure the orderly progress of the proceeding or the Court may hear the case, unless you make a written agreement with the Plaintiff or the Plaintiff’s advocate on a timetable for the orderly progress of the proceeding. The timetable must be filed in the office of the Court.
Au soutien de sa requête introductive d’instance, la partie demanderesse communique les pièces numérotées dans la liste des pièces ci-jointe.
In support of the Motion to institute proceedings, the Plaintiff discloses the exhibits enumerated in the List of Exhibits attached hereto.
- 18 DEMANDE DE TRANSFERT RELATIVE À UNE PETITE CRÉANCE
REQUEST FOR TRANSFER OF A SMALL CLAIM
Si le montant qui vous est réclamé est inférieur à 7 000,00 $ et si, à titre de demandeur, vous aviez pu présenter une telle demande à la division des petites créances, vous pouvez obtenir du greffier que la demande soit traitée selon les règles prévues au Livre VIII du Code de procédure civile (L.R.Q., c. C-25). À défaut de présenter cette demande, vous pourrez être condamné à des frais supérieurs à ceux prévus au Livre VIII de ce code.
If the amount claimed by the Plaintiff does not exceed $7,000.00 and if you could have filed such an action as a Plaintiff in Small Claims Court, you may make a request to the Clerk for the action to be disposed of pursuant to the rules of Book VIII of the Code of Civil Procedure (R.S.Q., c. C-25). If you do not make such a request, you could be liable for costs higher than those provided for in Book VIII of the Code.
MONTREAL, this 2nd day of May 2014 (S) Irving Mitchell Kalichman LLP IRVING MITCHELL KALICHMAN LLP Attorneys for the Plaintiff CENTRE FOR GENDER ADVOCACY