A long-awaited judgment as a step towards equal rights for transgender and non-binary people

Par Julie Aubin-Perron, étudiante à la Faculté de droit de l’Université de Montréal et Amélie Lemay, avocate

The last few months have been marked by numerous uprisings and awareness movements related to social injustices of which visible minorities are indisputable victims. January was no exception. Indeed, on January 28, an historic win for transgender people was granted by the Superior Court of Quebec. The decision, greatly awaited for 7 years, finally clarifies the status of transgender people in the eyes of the law. Six provisions of Civil Code were declared unconstitutional by the judgment rendered by the Honorable Gregory Moore, j.s.c. in Center for Gender Advocacy c. Attorney General of Quebec, 2021 QCCS 191.

Context

The case brings out numerous factors contributing to proliferate the discrimination that transgender and non-binary people face on a daily basis. As the plaintiffs are or represent people who are non-binary, transgender or intersex, they explain how these gender identities differ and how the several articles of the Civil Code of Quebec targeted by their challenge contribute to enhancing discrimination against them.

Since the Province of Quebec uses the sex which has been recorded on one’s act of birth as a mean to identify a person, it provides misidentification of transgender and non-binary people, who don’t define their gender as the sex they were assigned at birth. As this information will be used by other government organisations and ministries, people are identified by their designation of sex at birth for their entire life. The impact of this reality not only is a problem vis-à-vis their interactions with government institutions, but regarding their private life: school registration, job applications and housing often require a person’s birth certificate, meaning that non-binary and transgender people are often forced to reveal that their gender expression does not correspond with their designation of sex. This leads to confusion, intolerance, biases, violence, and persecution towards them.

The plaintiffs claimed that their rights to equality and to dignity are infringed. Consequently, the plaintiffs challenged the constitutionality of 11 articles of the Civil Code regarding changes of name and sex designation and the registration and issuance of certificates of deaths and births.

Decision

It has been established that those disposition do, indeed, violate Charter rights of transgender, non-binary, and intersex individuals. However, in order to determine if a provision is constitutional or not, the judge must submit each contested article to the famous Oakes[1] test.

Some articles passed the test, others did not. Articles 71 paragraph 1, 111, 115, 116 and 146 of the Civil Code of Québec were therefore invalided. Section 23.2 of the Regulation respecting change of name and of other particulars of civil status[2] was invalided as well since Judge Moore stated that it violates the dignity and equality rights of transgender and non-binary people aged between 14 and 17 years old.

As for articles 146, 93, 124 and 126, Judge Moore states that “the legislator is invited to review [them] to ensure that they are consistent with this judgment and that they uphold the dignity and equality of transgender and non-binary people.”[3]

The Superior Court also declared:

“The plaintiffs proved that a register of civil status that does not recognize the gender identity of transgender and non-binary people, or that limits their ability to correct the designation of sex on their acts of civil status to reflect their true identity, deprives them of the dignity and the equality that they are owed. Their inability to prove their true identity keeps them in a state of acute vulnerability that too often leads to suicide.”[4]

Considering this, four achievements were made:

– First, non-Canadians who reside in Quebec will be now allowed to change their sex designation as well as their name on their official papers.
– Second, the Civil code must be amended in order to procure to non-binary people the right to change their sex designation to something else than “male” or “female” so that it reflects their identity.
– Third, 14 years old and above transgender minors will have the right to apply in order to change their designation of sex without having to provide the health attestation previously required, as this requirement does not serve any rational purpose, as stated by Judge Moore. Regarding youths of 13 years old and under, the parent’s application on his behalf will still be mandatory.
– Fourth, even though the obligation to designate the sex of a newborn has been declared as a justified obligation since they do not have a gender identity yet, non-binary people should soon be able to be listed as “parents” on their children’s birth certificates.

As the four declarations of invalidity have been suspended until December 31, 2021, the provincial legislature has until this date to make the required legal changes.

The full decision can be found here.

[1] R. c. Oakes, [1986] 1 R.C.S. 103.

[2] Regulation respecting change of name and of other particulars of civil status, CQLR c. CCQ, r.4.

[3] Préc., Note 1, par. 336.

[4] Préc., note 2, par. 328.