Gender Identity: Developments in the Law and Human Rights Protections

By Picard, Brenda | University of New Brunswick Law Journal, January 2018 | Go to article overview

Gender Identity: Developments in the Law and Human Rights Protections


Picard, Brenda, University of New Brunswick Law Journal


Introduction

To begin, ask yourself: How many times have you been asked to indicate your sex on an application form? Is it a difficult question to answer? Do you wonder why the information is necessary? How many of your identification documents indicate your sex?

Throughout history, men and women have held different rights; and, to enforce those rights, identifying a person as a man or woman was considered relevant. Today, while there are still imbalances between men and women, there should not be any discrepancies in benefits or opportunities available to a man or a woman; the purpose for gender identification is consequently diminished. (1)

Comparatively, if you had to list your race, religion, and sexual orientation on every form on which you indicate your sex, you would be more likely to object. Many of us do not hesitate to answer a question about our sex because it is not a difficult question to answer, but for people who identify as trans or for people who do not identify using binary terms, this question may bring about anxiety, fear, frustration and discrimination.

This article is designed to be a general education and interest article. It is intended to be a valuable education piece for law students, lawyers, judges, and the general public on the topic of gender identity in the law. In particular, this article will explore issues faced by people in the trans community relating to identification documents and access to health services and will explore case law and changes in legislation which have attempted to address discrimination related to these issues. This article is informed by my perspective and experience as the Executive Director of the Prince Edward Island ("PEI") Human Rights Commission and will draw on the PEI experience to illustrate these issues, while at the same time exploring them within the broader Canadian context.

Sex and gender are terms that are often used interchangeably in common parlance, but our understanding of gender has changed significantly over time. We now understand that gender is not binary. It is on a spectrum. Over the past five years I have had the privilege of learning and beginning to understand some of the challenges faced by people who do not identify with the sex they were assigned at birth. Some identify as trans male or trans female, while others do not identify with the binary concepts of male or female at all. I certainly do not profess to have a complete understanding of all of the legal or social challenges faced by people whose gender identity does not conform to what the majority of people understand to be the "norm". I have had the opportunity to review decisions of human rights tribunals and courts; I have had discussions with my colleagues at other human rights commissions; and, I have had the privilege of meeting individuals who are living with these challenges and others who support and advocate for and with them. This paper draws on all of those sources.

What is clear across these sources is that trans people experience discrimination in many areas of their lives, including services, employment, and housing. As a result, there is a need for the general public, employers, employees, service providers, landlords, lawyers, judges, doctors, other professionals and government personnel to have a better understanding of the experiences and rights of trans people in their communities.

Discrimination often occurs because people do not understand or accept other people whose life experiences or personal characteristics are different from their own. Sometimes it happens out of a lack of understanding of people's rights and responsibilities. Whether or not it is deliberate and intentional, the impact of the discriminatory behaviour is detrimental.

This paper is intended to bring awareness to some of the challenges, rights and responsibilities impacting people who identify as trans, two spirited, queer, nonbinary, gender non-conforming, gender fluid or something else entirely. …

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