An Ontario-born filmmaker and writer is ​filing a human rights application after a four-month delay in obtaining a non-binary birth certificate.

As CBC Toronto first reported back in May, Joshua M. Ferguson — who uses the pronouns they, them, and their — is the first person in the province to publicly apply to use a third gender option on their birth certificate, rather than male or female.

But with the application still pending, the Vancouver resident has hired legal represntation to file the application with the Human Rights Tribunal of Ontario.

"It's been very disappointing ... there's been no clear timeframe," Ferguson said on Wednesday.

The Ministry of Government and Consumer Affairs told CBC Toronto in June that they are working to develop a gender-neutral option, with a spokesperson saying that since a birth certificate is the foundation for many other forms of identification, "we need to make sure we get this right for Ontarians."

birth certificate

Joshua M. Ferguson, an Ontario-born writer and filmmaker, is hoping to change the sex designation on their birth certificate from male to non-binary. (Joshua M. Ferguson)

The delay, however, is unacceptable, according to NDP MPP Cheri DiNovo, a supporter of Ferguson's request who previously pushed for the adoption of Toby's Law.

The law amended the Ontario Human Rights Code in 2012 to ensure "gender expression" and "gender identity" are protected from discrimination.

"That was about seven years of trying," DiNovo said.

What it now means is Ferguson and others have an "absolute right" to a non-binary birth certificate, she added.

"And clearly, for those who are trans, who are non-binary, they don't have equal rights — even though it's encoded in law."

NWT, Newfoundland to offer third gender option

Ferguson's ongoing fight follows recent changes in several other Canadian regions.

On a federal level, new rules introduced this summer mean Canadians across the country will have a third option to identify their gender on passports.

Also this summer, the Northwest Territories introduced a third gender option on birth certificates, without requiring gender reassignment surgery.

Then, earlier this month, the Newfoundland and Labrador government announced it will also introduce legislation to allow individuals to change their designation on a birth certificate to female, male or non-binary.

That proposed change came after St. John's activist Gemma Hickey filed an application in the Supreme Court in June 2017 to challenge the province's Vital Statistics Act under the Canadian Human Rights Act and Canadian Charter of Rights and Freedoms.

"I'm kind of shocked that Ontario is behind other provinces in this respect," said Ferguson.

"I would've expected them to be on the forefront of trans human rights."