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Employment & Labour, Human Rights

'X' on government ID reflects 'lived gender'

An individual’s application to identify as gender-neutral, or X, on government identification represents a new movement toward treating people according to their “lived gender,” says Toronto human rights lawyer Nicole Simes. Currently there is no ability to express a pangender identity on documents in Ontario, Simes says.

In T.A. v. Ontario (Transportation), 2016 HRTO 17 (CanLII), the applicant was seeking the ability to identify on government documents with an X, rather than an M for male or F for female.

In an interim decision in this case, the respondent sought medical documentation demonstrating the applicant’s ‘lived gender.’ The associate tribunal chair Yola Grant wrote the respondent argued that it was relevant to have evidence regarding whether the applicant is “making inconsistent statements to public bodies.”

“The respondent asserted that this is a novel claim resting on a non-traditional assertion of gender,” Grant wrote. “The applicant has not provided any statement regarding lived identity as a pangendered person as is required for transgendered persons. The respondent urged the tribunal to require the applicant to provide a proper basis to establish lived gender identity over a period of time, as pangender, male or female.”

Meanwhile, the applicant submitted that medical records were not relevant “as there is no medical aspect to this claim regarding gender identity, as opposed to a claim of disability.” Gender reassignment surgery was “irrelevant,” they argued.

Grant ordered the medical documentation to be produced.

Simes, a lawyer with MacLeod Law Firm, says the Ontario Human Rights Tribunal is sensitive to issues around ordering the production of medical documentation.

“The applicant was suggesting that medical documentation is not necessary to prove lived gender and that is probably true as there may be many other types of evidence that could show lived gender,” Simes, who is not directly involved with the case, tells AdvocateDaily.com

However, says Simes, “if the applicant does not produce other types of evidence, medical documents may become relevant.”

Simes notes that the interim decision requiring the individual to produce medical documentation to back up their application to identify as pangendered could have a “chilling effect” on future applications for transgendered or pangendered persons.  

While this case is unique, the issue around gender identity on government documents has gained traction in Europe.

Germany recently became one of the first countries to allow the parents of babies without "clear gender-determining physical characteristics" to register them with a third blank box, rather than male or female, the Guardian reports.

Ontario currently has a “binary gender system," Simes says. “It is difficult for individuals who do not identify within the parameters of what we currently have, which is male and female.”

Simes says she will be following the T.A. decision closely as “it could have wide-reaching implications in Ontario.”

“If the applicant is successful in this case, it could affect all Ontario ID documents and could be relevant to the federal system for ID like passports and birth certificates.”

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