Discrimination Beyond the Canadian Border
“It is our role to set a standard for how states should treat women, gays and lesbians, transgendered people, racial, ethnic, cultural, linguistic and religious minorities, and Indigenous people.”
- Foreign Affairs Minister, Chrystia Freeland
How Canada can protect trans* rights abroad
A Brief Overview of Terminology
Transgender There are many variations on this particular term. Here are several:
1. Refers to a person whose gender identity and physical body (sex) are not in alignment or do not agree, either all or part of the time. This is a narrow definition that I prefer, but many people prefer a broader definition.
2. Refers to a person who transgresses the gender norms of Western culture’s binary gender system (two-gender system), either all or part of the time and either intentionally or unintentionally. While everyone transgresses gender norms at some time or other, this definition generally encompasses those people who are viewed negatively or who are discriminated against because of their gender identity or gender presentation.
3. Encompasses both definitions above and also includes transsexual people, or those who have made changes to their physical body to bring the body into alignment with the gender identity.
Trans* An umbrella term that refers to all of the identities within the gender identity spectrum. The asterisk makes special note in an effort to include all non-cisgender gender identities.
Trans (without the asterisk)
Short for transgender, transsexual, or both. Because of variations in the definitions of transgender and transsexual, it is sometimes easier and more appropriate to use “trans” as a general term.
1969- Private sexual acts between two people over the age of 21 are decriminalized.
1977- Quebec becomes the first province in Canada to amend its provincial charter of human rights to include sexual orientation as a prohibited ground for discrimination.
1978- Canada introduces a new Immigration Act. Under the new act, homosexuals are removed from the list of inadmissible classes.
1996- The Canadian Human Rights Act is amended to include Bill C-33, which states that sexual orientation as a prohibited ground for discrimination in all provinces and territories.
2000- Bill C-23, the Modernization of Benefits and Obligations Act, is passed. This gives same-sex couples the same social and tax benefits as heterosexuals in common-law relationships.
2005- The Civil Marriage Act is passed. This allows same-sex couples to get married in all provinces and territories in Canada.
2015- Bill C-279 is passed. This act amends the Canadian Human Rights Act to include gender identity as a prohibited ground of discrimination. The act also amends the Criminal Code to include gender identity as a distinguishing characteristic protected under section 318 and as an aggravating circumstance to be taken into consideration under section 718.2 at the time of sentencing.
2017- Canada adds the option to identify as gender neutral (“X”) on passports.
LGBT2Q+ Rights in Canada
A Brief Timeline
Scenario: Nina, a transgender Canadian, was travelling to Dubai and detained at the airport as a result of suspicions arising from the ‘X’ under the gender designation section of her passport.
Problems With This Policy
While some advocacy groups have applauded this as a progressive policy change, others note that individuals who carry ‘X’ designated passports will encounter problems when travelling abroad. As Adrienne Smith, a Toronto-based immigration lawyer notes:
“I’m really worried that in countries like Uganda and Jamaica, where being LGBT is illegal and there’s laws on the books that prosecute people for identifying as trans*, that this could leave people open to arbitrary detention, it could leave them open to scrutiny at airports, degrading treatment” [5]
The problem is that the new ‘X’ marker will essentially amount to broadcasting trans* and non-binary persons gender identity, even in countries like Russia or the United Arab Emirates where identifying as trans* could be a significant threat to the individual’s safety.
Under the current system, non-binary or trans* people are faced with a choice of picking a traditional gender marker that does not align with their own identity, or traveling with an ‘X’ marker on their passports which essentially puts a target on their head in countries that are hostile to LGBT people.
Benefits of Removing Gender from Passports
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Prevents border officials dealing with travel documents that display a gender that does not reflect the holder’s identity or appearance and reduce the risk of trans* and non binary people encountering problems while travelling or avoiding travelling entirely because of the associated risk factors [6]
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Reduces the number of travel documents with incorrect biodata issued as the gender field is not always a reliable way to confirm an identity as a holder’s gender can change [7]
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Allows issuance offices to avoid the time and cost required to collect gender information about applicants [8]
What Should Canada Do?
While giving people the ability to choose a gender neutral ‘X’ s a great first step, ultimately more needs to be done if Canada wants to “set a standard” for treatment of transgender people abroad. There is an overwhelming sentiment among trans* and non-binary Canadians that the inclusion of sex markers on the Canadian passport, and other government issued identity documents, is a barrier to their ability to travel freely and safely. [12] However, Canada is not in a position to unilaterally stop including sex markers on passports. This is because Canada is signatory to the United Nations International Civil Aviation Organization (ICAO) that requires Canada to follow the international rules set for passport which, currently, requires a sex field to be filled with either “F,” “M,” or “X.” [13] Under these regulations, passports are literally defined as “unreadable” if they do not include a field for sex. In light of this, there are 3 potential paths that Canada can take to develop a more equitable passport regime.
Canadian officials could expand the ‘X’ designation for all Canadian citizens applying for passports from now on. The ICAO standards do not prescribe a criteria for who can be designated under the ‘X’ option. [14] This means that anyone, regardless of their anatomical or self-identified sex, could select the "X" category as the sex identifier on their passport. It is recommended that, while the ICAO standards remain unchanged, Canada take advantage of this option by applying an ‘X’ on all Canadian passports going forward. This would counter the problem of trans* and non-binary people being singled-out at airports in foreign countries for identifying with an “X” and give a plausible deniability to trans* Canadians travelling abroad if they are confronted with hostility. Also, this action could inspire like-minded countries to follow suit, therefore normalizing the practice and reducing the associated stigma.
“If we took the universal X, we would send a strong message saying we won’t compromise Canadian values of inclusivity just to accommodate international regulations that put trans people in harm’s way,” - Rory Vandrish, trans* activist at the Gender Free ID Coalition
In a position paper from 2012, New Zealand appeared before the ICAO to review the requirement to display gender on travel documents. [15] The position the paper took was that the cost of the change would be too great for border authorities and it may be a potential inconvenience for travellers, therefore the cost outweighed the benefits. However, the position paper also noted that the tangible benefits of the change meant that there was still a significant opportunity for the ICAO to look towards changing this requirement in the future. [16] The time for this change is now, especially considering that changing identity documents is gaining momentum in all levels of Canadian government. It is time that Canada take this action to the international stage by reopening the discussion at the ICAO and exploring how the benefits and costs of removing gender from passports may have changed in light of recent technological developments.
It is important, when considering each of the policy options, to take into account the current political climate and how each of these options will be received within it. For instance, one might want to consider the rise of the alt-right and the potential for homonationalist backlash in relation to these policy options.
“Governments need to keep up with changing times. Birth certificates once listed a baby’s race and a father’s occupation . . . and a sex designation is just as archaic.” - mother of Six-year-old Renn Forsberg, a trans* girl who filed for the removal of sex as a category from Saskatchewan’s birth certificates
Trans* and non-binary Canadians repeatedly call on the Canadian government to offer increased support when travelling abroad. Currently, allowing Canadians to put an “X” on their passport without the assurance of government support seems more like a branding exercise than actually improving human safety for trans* people. Given the widespread discriminatory attitudes and hostility towards gender diversity, none of the above policy recommendations will fully ensure the safety of trans* and gender diverse persons travelling abroad. For instance, only six countries have included gender identity and/or gender expression within their human rights legislation, with Canada joining this ranks in June of 2017 by updating the Canadian Human Rights Act and the Criminal Code. [17] Overall, given the threat of discrimination, harassment, and bodily harm trans* and non-binary people face when travelling abroad, they are in need of assurance from the Canadian government that they will receive equitable support and assistance travelling abroad, in order the mitigate some of the shortcomings of ‘X’ marked passports. At a minimum, Canada could provide an emergency hotline for trans* people experiencing discrimination travelling abroad. As well, under the current system. the Canadian government places the onus on the individual to determine if their destination country is safe, claiming that it is their responsibly to contact the embassy. [18] To improve this, individualized travel advisories for each country could go a long way towards ensuring trans* people are aware in advance of the potential risks of travelling to a certain country.