Human rights hearing told sex should be scrapped entirely from birth certificates

A pangender person fighting to have gender neutral birth certificates issued in Manitoba made their case to be recognized who they are on paper Monday at a human rights hearing.

'I find it very uncomfortable to function in a society that has such a division'

Documents such as birth certificates can now be requested online. (Meagan Fiddler/CBC)

Dressed sharply in a suit and tie, a former Manitoban told a human rights hearing that they live their life being constantly misgendered.

T.A. is a trans pangender person who doesn't identify as either male or female and uses the 'they' and 'them' pronouns. They are fighting to have the required current male or female sex designation taken off birth certificates issued by the province's Vital Statistics Agency.

While T.A.'s appearance Monday could resemble what a man would wear, that assumption is wrong. They said when an independent human rights hearing into their complaint resumes on Tuesday, they could be dressed as a woman.

"I shop for clothing in both the women's and men's departments of clothing stores," T.A., whose identity and birth sex is protected by a publication ban, told the hearing, which started Monday morning in Winnipeg.

Toronto lawyer Susan Ursel has taken on the case pro bono. (Jeff Stapleton/CBC)

"These divisions of categories I don't find that they're really relevant to me. I actually find it very uncomfortable to function in a society that has such a division or segregation."

The Manitoba Human Rights Commission investigated a complaint from T.A. in 2015 and attempted unsuccessfully to mediate a resolution before referring the case to the adjudication panel in 2018.

Winnipeg lawyer Dan Manning is the independent adjudicator hearing T.A.'s case, which alleges the Manitoba government is violating its own human rights code, which protects gender identity.

"It's extremely difficult to go through the world being misgendered, to have no one respect your gender identity," Ursel said. "They might be harassed. They might be discriminated against. They might be accused of using a fraudulent document because there's a mismatch, an incongruence between what the paper says and who you are and presenting as," Toronto lawyer Susan Ursel told reporters outside the hearing.

Ursel has taken on T.A.'s case pro bono and likens the sex of a person listed on a birth certificate to someone's race being listed — something she said most countries phased out long ago. She said if the province is unwilling to take sex off birth certificates completely she would be OK with a letter such as X or word 'unspecified' appearing under the sex category.

"So there are options for the tribunal to consider if they're inclined."

Government lawyer breaches order during hearing

She spent much of Monday morning discussing the ground rules for the four-day hearing, which includes not saying T.A.'s name — an order Manning agreed to put into effect.

Lawyer Leslie Turner, who is representing the province, broke that order when she read a document aloud that had T.A.'s name in it. A stunned Ursel then asked "Counsel, why would you do that?" and the hearing was paused while Ursel took Turner out of the room to exchange words.

Watch a nonbinary advocate describe their struggle for equality with driver's licences

A non-binary Winnipegger is tired of not being able to identify themselves properly on ID in Manitoba. 0:59

Ursel and Turner came back in and Ursel asked for clarity on Manning's order saying there seemed to be a difference in opinion on what exactly the order was and he clarified T.A.'s name was not to be said to protect the person's privacy.

"That was an error on my part. I do apologize to T.A.," Turner told the hearing. T.A. said the sex designation on their birth certificate has led to many problems over the years.

Asking for $75,000 in damages

"I have frequently been subjected to invasive questioning. There have been occasions when individuals have stated that it's not my document. They're questioning whether or not I'm authorized to rightfully possess my own identity document."

They told the hearing this has led to mental health problems and misidentification is just one of many problems they face during their daily life as a pangender person.

"For example, accessing a public bathroom can be very difficult for me because that is a very segregated facility in society and that causes a lot of discomfort and distress and problems for me."

Ursel is asking the adjudicator to award T.A. $50,000 for injury to dignity for alleged breach of human rights and $25,000 for exemplary damages to make a statement the province's birth certificate policy is discriminatory.

Other provinces have X option

A press secretary for Manitoba Justice Minister Cliff Cullen said it would be inappropriate to comment on a matter before an adjudication panel.

"That being said, our government recognizes that gender identity and expression is an important issue, which is why we continue to have that dialogue as part of our participation in the Vital Statistics Council for Canada, an inter-jurisdictional advisory group composed of heads of vital statistics agencies from across Canada.

"Birth certificates are foundational documents that establish a person's identity, impacting many other forms of government issued ID. That is why we need to take the time to get this right and ensure appropriate consistency across jurisdictions," Caitlin MacGregor wrote in an emailed statement.

Newfoundland and Labrador activist Gemma Hickey fought successfully to have both a gender-neutral passport and birth certificate. (Submitted by Gemma Hickey)

Other provinces like Ontario, Newfoundland and Labrador, and the Northwest Territories already have non-binary birth certificates, which allow people to change the sex on the documents to have an X instead of male or female.

Turner, who declined an interview, is expected to cross-examine T.A. on Tuesday.

The hearing is scheduled for four days and then Manning will be left to decide whether gender-neutral birth certificates should be allowed in Manitoba.

About the Author

​Austin Grabish landed his first byline when he was just 18. He joined CBC in 2016 after freelancing for several outlets. ​​In 2018, he was part of a team of CBC journalists who won the Ron Laidlaw Award for the corporation's extensive digital coverage on asylum seekers crossing into Canada. This past summer, he was on the ground in northern Manitoba covering the manhunt for B.C. fugitives Bryer Schmegelsky and Kam McLeod, which attracted international attention. Email: