Non-binary Canadians still fighting for justice

Prime Minister Justin Trudeau's apology to the LGBTQ community was heartfelt, but until non-binary Canadians are legally recognized there won't be any hope of eradicating discrimination based on gender identity, says Katy MacKinnon.

Birth certificates in most provinces don't recognize those whose identities aren't strictly male/female

After non-binary trans activist Gemma Hickey challenged Newfoundland and Labrador's Vital Statistics Act in June 2017, legislation was tabled to offer non-binary birth certificates provincewide. Manitoba's Vital Statistics Agency still fails to recognize people who identify as non-binary. (CBC)

Prime Minister Justin Trudeau's apology to the LGBTQ community contained a pledge: "Discrimination and oppression of LGBTQ2 Canadians will not be tolerated anymore."

It was a heartfelt proclamation, but the ongoing tolerance of discrimination against non-binary people in Canada, including those who also identify as transgender and/or intersex, questions the truth behind that statement.

As Trudeau waxed poetic about shame felt due to past injustices, non-binary people are left wondering when modern injustices will end.

Prime Minister Justin Trudeau pauses while making a formal apology on Nov. 28 to individuals harmed by federal legislation, policies, and practices that led to the oppression of and discrimination against LGBTQ people in Canada. (Adrian Wyld/Canadian Press)

Non-binary is a term used by those whose identities do not fit into a strictly male/female binary.

Many non-binary people, including those who identify as intersex, consider the label as relating to both an individual's sex (biological anatomy of one's reproductive system and other secondary sex characteristics) and their gender (a personal, internal awareness of one's identity that may or may not align with one's sex).

Legal recognition not yet Canada-wide

With non-binary people still not legally recognized on identification documents in most of Canada, save for the Northwest Territories and Newfoundland and Labrador, activists are forced to battle provincial governments for their legal right to be free from discrimination.

Though protection of gender identity and expression were added to the Canadian Human Rights Act and the Criminal Code in June 2017 in the form of Bill C-16, the federal government wasn't the first to take this step.

Five years after the Ontario government added gender identity to that province's Human Rights Code, non-binary trans activist Joshua M. Ferguson, who uses the pronoun they, applied for an "X" designation on their Ontario birth certificate, but was denied.

Ferguson's application for a non-binary birth certificate remains in limbo, with the Ontario government only recently promising legislation by spring 2018. This promise came retroactively in response to Ferguson's human rights application filed in September 2017.

Joshua M. Ferguson, right, has applied for a non-binary birth certificate in Ontario, with partner Florian Halbedl, left. (Joshua M. Ferguson)

In Newfoundland and Labrador, it wasn't until non-binary trans activist Gemma Hickey challenged the provincial government's Vital Statistics Act in June 2017 that legislation was tabled to offer non-binary birth certificates provincewide.

Manitoba Vital Statistics doesn't recognize non-binary identities

Five years prior to Bill C-16, gender identity was added to Manitoba's Human Rights Code as a protected characteristic.

Today, Manitoba's Vital Statistics Agency still fails to recognize people who identify as non-binary. The current application form for change of sex designation offers only two options: male or female.

It follows that the only possible route for non-binary people in Manitoba (or any other jurisdiction outside of Newfoundland and Labrador and the Northwest Territories) wishing to change their sex designation on their birth certificate is to file an application for a change of sex designation, manually add a third "X" gender box, be subsequently denied by the government, then file a human rights complaint against the Manitoba Government.

Human rights complaints take time, energy and sometimes money, if a lawyer is involved. With trans people experiencing high rates of unemployment, a lack of resources can make processing a human rights complaint a non-option.

It is harmful for individuals who are already experiencing marginalization by gender to be forced to go up against the government that purports to protect them in order to be legally recognized.

Government wrongdoing not only in the past

Legal recognition for non-binary people has far-reaching implications. Without the option for an "X" marker on all government identification, discrimination based on gender identity remains rampant.

"For forcing you to live closeted lives, for rendering you invisible, and for making you feel ashamed — We are deeply sorry. We were so very wrong," Trudeau said in his apology.

Trudeau makes LGBT apology

5 years ago
Duration 1:07
The Prime Minister apologizes to LGBT people who lost their careers in the military and security services because of the sexual orientation

But these wrongs are not only in the past. Without legal, visible recognition of non-binary trans people, it is far too easy for employers, insurance companies, the health-care system, the education system, the justice system and more to get away with discriminatory practices that silence our identities and treat us as burdens.

Non-binary people are not necessarily a singular voice on this issue. Activists with the Gender-Free ID Coalition have advocated for the removal of gender markers entirely from identification documents. Their opinions are worth consideration. Non-binary people are a diverse group.

Still, the gender marker on identification should remain an individual's decision. As non-binary people, we are not "equal" to our cisgender (those who identify with the gender they were assigned at birth) counterparts when we do not even have the option of getting identification documents that accurately reflect our genders with an "X" marker.

We have just as much legal right to an "X" gender marker as a cisgender man has to an "M" and a cisgender woman to an "F."

Non-binary trans people are still living closeted lives. We are still rendered invisible and are still made to feel ashamed of our identities due to systemic discrimination.

It is not until we are legally recognized that there will be any hope of eradicating discrimination based on gender identity. Provincial governments must work to correct the dissonance between their human rights codes and their application.

It shouldn't take more than five years to change a form.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.


Katy MacKinnon is a queer, non-binary freelance writer in Winnipeg. Their work has appeared in CBC Manitoba, Maclean's, Daily Xtra and, before its closure, Outwords magazine.