POSITION PAPER
General comments
We don’t understand the motivations for the proposed criteria ● Community groups were not consulted ● In December 2013, groups working with trans people explained that prerequisites of this kind were dangerous
No date of entry into force ● We still do not know when the regulation will enter into force. As it has been since December 2013, the timeframe for ending the surgery requirements remains unknown.
Comments on specific provisions of the draft regulation The provisions of the draft regulation were, in our opinion, so problematic that we have had to present them one by one
1. “Among the reasons in his or her request, the applicant must declare...” ● A declaration under oath has legal force. ● Lying under oath is a crime. ● Therefore, a trans person who does not meet all the criteria would be committing a crime. ● As the criteria are impossible to fulfil, trans people are by default forced to perjure themselves..
2. “…has lived at all times...” ● This includes a wide variety of contexts (private life, at home, among friends, at work, at school, among family, in public places, while travelling, from getting up to going to bed, even while asleep). ● The ability to “live at all times” in the affirmed identity does not depend only on the person’s will. Trans people are liable to have to choose between their immediate safety and respecting government requirements. ● Employers often do not permit trans people in the early stages of transition to work in the clothing or appearance of their affirmed gender. ● The requirement to live full-time takes away any flexibility from trans people during their transition.
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3. “…for at least two years...” ● This requirement forces all trans people to suffer a period of discrimination. ● Given the large number of possible contexts covered under “at all times,” the two-year period will stretch out considerably, as it is very difficult to deal with the discrimination caused by not having identity documents that match one’s identity. ● Each time circumstances force a person not to present an appearance that conforms to their affirmed identity for safety reasons (e.g. while crossing the border), the two-year period would be reset to zero. ● This period of two years will not begin at the same time as transition or the process of discovering one’s trans identity do. ● Two years is often longer than the time needed to obtain surgery, for trans people who require it. Replacing surgery by a two-year wait simply transfers the problem.
4. “...in the appearance of the sex to which the sex designation is requested to be changed...” ● This criterion is very unclear. What does ‘the appearance of a sex’ mean? ● How shall the appearance of a sex be defined? How will people be required to prove that they meet this criterion? ● In no other circumstance is a particular appearance legally required. Only persons requesting a change of sex designation will be required to have a certain appearance.
5. “…and intends to live with this appearance at all times until death.” ● Trans people will be the only group in Québec legally required to have a certain appearance. ● This appearance will have to fit unwritten norms established by bureaucrats. ● Will the state reserve the right to check in the future whether a trans person still has an “appropriate” appearance? ● Will a trans person be denied their change of sex designation if their appearance does not match, or no longer matches, a bureaucrat’s expectations?
6. “...a letter from a physician, a psychologist, a psychiatrist, or a sexologist...” ● This list restricts the professionals recognized as authorized to draft such letters, but these are not the only professionals who work with trans people. ● Study after study has shown that the health care system is an unsafe environment for trans people. The professional consultations needed to obtain the required documents are therefore liable to cause considerable harm to trans people. ● The therapy or evaluation required by this criterion is costly and not covered by the RAMQ. Although a visit to a physician working in the public system is covered by RAMQ, they still charge fees for issuing letters (in the hundreds of dollars). 2
● Trans people are not trusted to describe their own experiences or identify their own needs.
7. “...declaring that he or she has evaluated or cared for the applicant...” ● The need to consult these professionals unnecessarily pathologizes trans people. ● These professionals either receive no training regarding trans issues, or else the training is pathologizing, that is, it presents trans identities as a mental illness. ● The necessary physicians, psychologists, psychiatrists, and sexologists are not available throughout the province. However, over the years, trans people have transitioned in more than 130 different cities and towns in all the regions of Québec.
8. “...and confirming that the applicant’s gender identity does not match the sex designation on his or her birth certificate, and is of the opinion that changing this designation is appropriate.” ● Not only are the authorized professionals trained to understand trans identities as pathological, but also no protocol exists for making this evaluation. Professionals will be forced to perform an evaluation they do not know how to do. Access to these letters will therefore be arbitrary. ● The Directeur de l’état civil is extremely strict in interpreting regulations. How will it understand this requirement? Will a formal diagnosis of gender dysphoria be required? If so, very few professionals are trained to make this diagnosis. It will therefore be difficult for trans people to meet this requirement.
9. “The application must also include a declaration under oath from a person of full age that he or she has known the applicant for at least two years...” ● Why must the witness have known the applicant for at least two years? Must the witness attest to the two years living full-time, or is it to ensure the witness knows the applicant well? ● As in point 4, given that “at all times” includes numerous living environments and contexts, it will be extremely difficult for trans people to find a person who can attest to their living full-time in all situations in their life. ● Trans people cannot be assumed to have long-time acquaintances, precisely because they are trans. Often, those beginning a transition are abandoned by their family and friends. ● Trans people often depend on a social network created after transition.
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● This provision impedes trans people’s mobility rights. They cannot change their residence (whether for studies, work, or even because of their transition) if they are to keep contact with people they have known for two years.
10. “...and, to the witness’s knowledge, the applicant has lived at all times, for at least two years, in the appearance of the sex to which the sex designation is requested to be changed.” ● Persons who have already completed their transition and who are living “stealth” in a new environment are forced to come out unnecessarily, and perhaps put themselves in danger, solely to obtain a witness. ● People may be forced to remain in toxic relationships in order to stay in contact with a person who has known them for two years. ● A third person, the witness, will become the judge of what is an acceptable gendered appearance for the trans person.
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An inclusive, non-discriminatory proposal 1. A declaration under oath by the trans person... ● The government should use the tools it already has. ● A declaration under oath is an important legal document. Making a false declaration is a criminal offence. ● If the government’s intention is to make sure that applicants are serious, it could provide a document explaining the consequences of the requested change and how it will be applied, in order to obtain informed consent. ● Trans people should not be made to suffer because of the possibility that someone could abuse the procedures that have been set up for them.
2. ...confirming that the sex designation listed on the birth certificate does not correspond to their lived gender identity ● This proposal is much closer to the recommendations of professional organizations such as CPATH and WPATH. ● This formulation has already been proposed; it was one of the options studied by the government in December 2013. ● It avoids the discriminatory aspects of the proposed regulations. ● It does not regulate appropriate masculine or feminine appearance.
3. A declaration under oath from a witness affirming that the applicant’s lived identity does not correspond to their legal sex designation ● This requirement will help to reinforce the credibility of the application, without unduly burdening the most marginalized trans people; they will only need to know a person who knows they are trans and can attest to it ● It also involves observing that the birth certificate differs from the lived identity rather than evaluating the person’s identity. ● It will be easier for trans people to find people able to make such a declaration who are aware that they are trans.
In addition to this proposal, we invite the Minister of Justice to make contact with community organizations in drafting new criteria. As no justification was given for the criteria in the draft regulation, it is difficult for us to perceive the government’s needs with regard to changing legal sex designations, as it was difficult for the government to understand trans people’s needs. It will be essential to have a dialogue on this subject. 5