Ontario Law Needs Trans-formation: A struggle for the affirmation of human rights

by Erica Predko
Cité Libre
19th May 2008

The story of transgendered people growing into a community is a long and complicated one. In modern years, scholarly focus has been on the history of sex reassignment surgery (SRS) and the medicalisation of the transgendered identity. At the end of the Victorian Era, a German physician named Magnus Hirshfield founded the Scientific Humanitarian Committee that examined different types of sexual deviance, including homosexuality and transsexuality.

In 1966 Dr. Harry Benjamin wrote The Transsexual Phenomenon, which advanced the cause for sex reassignment surgery for transsexuals. In “Towards a Commission Policy on Gender Identity” it is said “he notes, among other things, that psychotherapy is an ineffective “cure” for transsexualism and that sex reassignment surgery could allow the transsexual to experience greater congruence between felt gender identity and birth assigned sex”.

The Harry Benjamin International Gender Dysphoria Association creates a minimum set of criteria that is used to diagnose someone with “Gender Dysphoria”, a psychiatric condition in the Diagnostic Standard Manual on Psychiatric Disorders. The criteria set out by the Harry Benjamin Association is the basis for the standards of many Gender Identity Clinics. The term Gender Identity Disorder replaced the diagnoses of transsexualism in 1994.

Sex reassignment surgery, or SRS, includes any medical surgery which altars the sex characteristics of the physical body to be more congruent with the desired body. This may include breast augmentation or chest reconstruction, electrolysis, phalloplasty or vaginoplasty, and many other surgeries. Gender Identity Clinics emerged in the 1960s when there was a growing demand from transsexual people for sex reassignment surgery and/or hormone therapy. The first of these institutes to open in Toronto was the Gender Identity Clinic at the Clarke Institute of Psychiatry in 1969.

Patients referred to the Clarke’s Gender Identity Clinic had their surgery and hormone costs paid for by the government from 1970 until October 1st, 1998, when the Conservative Harris government de-listed sex reassignment surgery for transsexuals. This mimics when in British Columbia, sex reassignment surgery was de-listed from provincial health care coverage in July 1988. However, the exclusion of SRS was repealed in June 1993 when it was decided that SRS was a medically necessary service.

For transsexuals who cannot afford to pay for the surgery themselves, the delisting can be devastating, mentally, financially and physically. The Ontario Human Rights Commission did research that has shown “female to male surgery in Toronto costs approximately $10,000 to $12,000… male to female surgery costs approximately £9,000 (approximately $18,000 Canadian)… According to the British Columbia law reform project on human rights and the transgendered community, male to female reassignment surgery ranges from between $5,000 and $10,000. Female to male reassignment surgery costs considerably more, ranging from $20,000 to more than $60,000”.

Many transsexual people live in poverty, and cannot afford the surgery that they need to live happy, healthy lives free from discrimination. The Human Rights Commission see many problems with denying access to surgery: “Presenting as the other sex is especially difficult for birth assigned men transitioning to women. Before hormone therapy has begun, and without a lengthy period of electrolysis, the likelihood a person will “pass” as a women is low.

The result is that living as an one’s felt gender can be highly stressful and open the door to discriminatory treatment”. As it is said later in the paper, “the fear of being discovered is a significant concern. The repercussions of being discovered can include termination of employment, loss of housing, loss of service, social isolation and other forms of discrimination, harassment and possibly violence”.

Transsexuals are almost excluded from almost all areas of Canadian law, making that the laws that affect them difficult to determine, since they exist mostly within the periphery. One of the most important laws that affect transsexuals is the Vital Statistics Act. The most important part of this act regarding transsexuals is section 36, where it says:

36. (1) Where the anatomical sex structure of a person is changed to a sex other than that which appears on the registration of birth, the person may apply to the Registrar General to have the designation of sex on the registration of birth changed so that the designation will be consistent with the results of the transsexual surgery.


This can be a problem for transsexuals who do not want to consider surgery. Birth Certificates are a foundational identity document, and you need one to apply for a passport, or Social Insurance number, etc. It is unlikely the transsexual person would be able to change the gender on any of their identification without first changing the gender on their birth certificate.

The Ontario Human Rights Commission’s Discussion Paper claims that “a growing number of people who are transgendered no longer consider sex reassignment surgery a suitable option for them either due to costs, medical risks, medical barriers or on principal”. For transsexuals who either may not have the means, especially without SRS being covered by provincial health care, living their life as their desired gender may be very difficult without the correct documentation. The requirement of surgery to obtain can also be a problem in institutions such as correction facilities and hospitals, where people are often segregated by one’s legal sex.

When transsexuals have a Human Rights complaint, there is no predetermined category for the complaint to fall under. Therefore, getting a complaint to make it through all stages to a decision can be difficult. The first human rights complaint from a transsexual alleging discrimination that made it through to a decision was in Quebec. That case was La Commission des droits de la personne de Quebec vs. Anita Anglsberger. However, Anglsberger was protected by a concept in Quebec law called “civil status” which does not exist in the rest of Canadian law, making it less useful as a precedent in other human rights cases involving transsexuals.

Different provinces have had trouble with categorizing human rights complaints from transsexuals. There have been many conflicting decisions about whether discrimination against a transsexual should be based on sex or on physical disability. The British Columbia Human Rights Commission did a survey of complaints from transpeople in other provinces. In response to the survey, Alberta’s Human Rights Commission said that they’d never had a complaint, but if they did, they’d file it under “physical disability”. Because of how Saskatchewan defines physical disability and sex, it is unlikely that they could take a human rights complaint for discrimination based on transsexualism.

Manitoba has had complaints, and had filed them under both sex and physical disability. In British Columbia, cases such as Sheridan v. Sanctuary Investments Ltd. (No. 3) (1999), 33 C.H.R.R. D/467 (B.C.Trib.); Mamela v. Vancouver Lesbian Connection (September 8, 1999), CHRR Doc. 99-196 (B.C.Trib.); and Ferris v. O.T.E.U., Local 15 (October 15, 1999), CHRR Doc. 99-214 (B.C.Trib.) all came to the same conclusion as the British Columbia Human Rights Tribunal. They found that discrimination against a transsexual, for whatever reason related to their transsexualism, is discrimination based on sex.

One of the reasons that “sex” is that category that many of these complaints are under is because through other decisions (such as Brooks v. Canada Safeway Ltd.) the courts have found that “sex” as defined in the Charter is not restricted to biological sex alone. Until the Ontario Legislature sees it fit to amend the Human Rights Code to include a category such as ‘gender identity’, using sex as a broad term to encompass discrimination against transsexuals is the only reasonable alternative at this time.

The most recent and applicable changes in the law regarding transgendered people involves the Human Rights Tribunal and the debate over whether SRS should be relisted in OHIP.

SRS was delisted on October 1st, 1988 with no consultation with the medical or the transgendered community. An Ontario Human Rights Tribunal Hearing was conducted on whether denying funding for surgery to transsexuals who had already begun their transition when SRS was delisted from OHIP was discriminatory. This was the first case involving transsexualism to be heard by the Ontario Tribunal. The decision was that denying them funding was discriminatory, and the government would have to pay for 3 out of the 4 surgeries.

Ross Hendriks, Vice-Chair of the Ontario Human Rights Tribunal, found that the delisting of SRS was done without valid medical reason and went against advice from the government at the time’s Legislation and Regulations Committee. He found that denying funding was contrary to the Ontario Human Rights Code and therefore discriminatory. He called the conduct of the Harris government “negligent, reckless, and an abuse of power”. He also found SRS to be “a legitimate, international, medically recognized non-cosmetic treatment…”.

The majority of the tribunal ruled that denying surgery to those who were not enrolled in the program at the time of its delistment was not found to be discriminatory.

On March 21st, 2007, Bill #186 – An Act to Amend the (Ontario) Human Rights Code Regarding Gender Identity was introduced. This was a Private Member’s Bill introduced by an NDP member. It died when the election was called, but many transpeople and their supporters hope that it will be reintroduced.

Bill #186 lists the changes to the Human Rights Code as:

1. Section 1 of the Human Rights Code is amended by adding “gender identity” after “sexual orientation”.

2. Subsection 2 (1) of the Act is amended by adding “gender identity” after “sexual orientation”.

3. Section 3 of the Act is amended by adding “gender identity” after “sexual orientation”.

4. Subsection 5 (1) of the Act is amended by adding “gender identity” after “sexual orientation”

5. Section 6 of the Act is amended by adding “gender identity” after “sexual orientation”.

This changes this bill proposes include equal treatment to service, goods, and facilities without discrimination, occupancy of accommodation without discrimination, to contract on equal terms without discrimination, equal treatment in regards to employment, and equal treatment in regards to membership in any trade union, trade or occupational association of self-governing profession without discrimination. However, if Ontario will (like British Columbia) decide that SRS is a medical necessity and that denying funding for it is discriminatory is still in debate.

It is radically important to members of the transgender community that they have affordable, safe access to that surgery. There are many accounts of transsexuals who have an intense need to have their physical body be congruent with the gender they associate with. In the book The Riddle of Gender, Rudicalle talks about transsexuals who undergo surgery. She says, “Those who decide to physically change their sex then spend a number of years committed to the process of transition; the outcome is a series of painful surgeries. No one would undertake this arduous quest unless driven to it by an acute misery. I have been told by person after person, ‘It was this or suicide.’”. She also says, “More than one person I interviewed compared transsexuality to a cleft palate – characterizing both as “birth defects” that require surgical intervention”.

Surgery is critical to the mental well-beings of many transsexuals. Those who feel they cannot “pass” as their gender may experience persecution or disgust from others for not fitting any gender stereotype. Rudicalle insists “transgendered people who do not surgically transition, who live with bodies at odds with their gender presentation, court even greater risks, enduring the constant threat of discovery and exposure”. For many transgendered people, living with this threat takes a tremendous toll on them.

However, surgery is not the answer for all transsexuals, and the law needs to accommodate that as well. For one to get their sex legally changed, they must follow the guidelines as laid out in the Vital Statistics Act. In Are We Persons Yet?, Lahey relates “the courts apparently require that in order for transgendered or transsexual persons to receive any of the ordinary legal rights available to ordinary ‘men’ or ‘women’, they must have completely eliminated all physical/hormonal traces of their original sex that medical technology can give them.”. This can be incredibly devastating, especially for female-to-male transsexuals, as phalloplasy is a risky operation and sensitivity is often lost. Lahey tells the case of B. v. A. B had a bilateral mastectomy, pan-hysterectomy and full hormonal treatment, and even though B had applied to have his legal sex changed to male and had two certificates from doctors who certified that his anatomical sex structure was changed, “the courts rejected these certificates – along with B’s application for support – on the basis that the surgery had not gone far enough: ‘The genitalia of B., to my understanding, have in no way been touched surgically…’.

The courts went on conclude that social and psychological pressures of desires did not make up for the lack of genital reconfiguration in this case, and ruled that, notwithstanding the medical certificates produced by B., she was not a ‘man’ within the meaning of the Family Law Act”. Male-to-female transsexuals suffer as well though, as Lahey shows with the story of Lillian Owen. She says, “Although Lillian Owen had gone through sex-reassignment therapy that was considered to have formed a sufficient basis for a change of name, charged of ascribed legal sex in 1951, and formal marriage to a man in 1955, the courts found that she had not met the requirements in the act because she had not proven that she had met the test for legal change of sex: ‘where the anatomical sex structure… is changed [through] transsexual surgery”.

Transsexuals are fighting for a place that is only being touched upon now by law makers, the concept of protection against discrimination because of your gender identity. Lahey talks about the problem with the place transsexuals currently reside in under Canadian law, saying: “The fact that transgendered and transsexual persons have not yet been able to bring their cases within the rubric of human rights or Charter rights suggests that they are particularly disadvantaged by the reliance on mutually exclusive concepts of ‘sex’ and ‘sexual orientation’. Instead of being permitted to occupy legal space within either of these two terms or at their convergence, they have been excluded from both”.

However, she offers somewhat of an answer to this problem. With further Charter litigation, we could establish that “the application of family law depends not on legal (medical) ‘sex’, but on the nature of the relationship in question”. With the expansion of rights to same sex couples, there will hopefully be an easier battle for transsexuals, as the Family Law Act now reads “two persons” rather than “one man and one woman”.

We can see how crucial funding for SRS is for transsexual people. For many transsexuals, SRS is a medically necessary procedure for them to live happy, safe, healthy lives. Hopefully, if changes are made to the Ontario Human Rights Code, funding will once again be listed for coverage under OHIP.

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http://www.spinwatch.org/