Contributed by Stephanie Kay
Introduction
In June 2017, Bill C-16 amended the Canadian Human Rights Act’s list of federally protected grounds to include “gender identity” and “gender expression.” At the time of Bill C-16’s enactment, virtually every provincial and territorial jurisdiction in Canada already provided explicit human rights protections for transgender people. Bill C-16 aimed to “protect individuals from discrimination within the sphere of federal jurisdiction” due to their gender identity or expression, including within health care settings. However, over five years later, transgender and non-binary people in Canadian jurisdictions continue to experience a multitude of complex and discriminatory legal barriers.
According to a recent research report published by the Department of Justice Canada, identity documents (ID) that do not correspond with a person’s identity can significantly affect their overall health and well-being. Providing transgender and non-binary people with access to accurate IDs is an essential step in protecting them from discrimination and treating them with dignity and respect. This article explores the need for legislation in Canada to go beyond the legal recognition of transgender and non-binary people through accurate IDs (e.g., passports, health cards). These laws should also advocate for comprehensive and accessible gender-affirming health care for these communities.
Québec’s Bill 2 & Legal Recognition through Identity Documents
Initially introduced in October 2021, Québec’s Bill 2 was met with backlash from many transgender advocates. Others highlighted a lack of consultation with members of the 2SLGBTQIA+ community who this piece of legislation would directly impact. The amended version of Bill 2, adopted in June 2022, addressed these criticisms by removing the requirement for proof of gender-affirming surgery to modify one’s gender marker on official identity documents. Bill 2 also allows people to select the non-binary gender marker X, instead of F or M.
It is well-established that having access to IDs that match an individual’s gender identity can seriously impact their overall quality of life. Given this, all provinces and territories have committed to allowing transgender and non-binary people to change their gender markers. In Ontario, non-binary gender markers have been available for provincial documents, such as birth certificates and driver’s licenses, since 2017. Federal documents in Canada have allowed citizens who do not identify as either female or male to list their gender as “X” since 2019. However, the reality is that each jurisdiction across Canada has “different onerous, elaborate application requirements and processes,” for changing gender markers and names. Navigating these time-consuming and resource-intensive processes can pose a significant barrier to transgender and non-binary people.
Additionally, when an individual’s IDs do not reflect their name or gender identity, it is more than a mere inconvenience. IDs are a structural determinant of health because they impact a person’s ability to access adequate health care and other social services (e.g., banking). In fact, accurate IDs promote positive mental health amongst transgender and non-binary people. While legislation like Bill 2 has laid the groundwork for improved legal recognition of transgender and non-binary people in Québec through IDs, more progressive legislation is still needed to address the systemic barriers these communities face in accessing health care.
What is Gender-Affirming Health Care?
Transgender and non-binary people experience inequities when accessing all forms of health care in Canada. Many gender non-conforming folks report mistreatment, neglect, and abuse by health care professionals, which can prevent or dissuade them from seeking essential health care services in the future. Gender-affirming health care is crucial for members of the transgender community as it “holistically attends to transgender people’s physical, mental, and social health needs and well-being while respectfully affirming their gender identity.” Gender-affirming health care goes beyond just transition-related care and focuses on providing transgender and non-binary people with an affirming experience in all health care encounters.
Similar to how processes differ for IDs across jurisdictions, the ability of Canadians to access gender-affirming health care depends greatly on their province or territory and whether they live in urban or rural areas. The coverage and funding for gender-affirming health care, such as surgery and medications, vary significantly across Canada. The disparity between jurisdictions in terms of the quality and availability of gender-affirming care further perpetuates the barrierstransgender and non-binary Canadians face within the health care system. These barriers would decrease if provinces and territories committed to improving overall access and coverage of medically necessary gender-affirming health care. Except for Yukon, most jurisdictions in Canada place an “undue burden” on transgender and non-binary populations who often require gender-affirming health care.
Yukon Case Study: The Need for Comprehensive Coverage across Canada
In March 2021, the Yukon government announced changes that would significantly improve access to gender-affirming health care. Yukon’s newly expanded health care insurance coverage was heralded as the “gold standard” for members of the transgender and gender-diverse communities. This comprehensive coverage aligns with the World Professional Association for Transgender Health’s internationally recognized standards of care for effectively supporting individuals undergoing gender-affirming health care. The policy announcement highlights that gender-affirming procedures such as voice therapy and facial feminization surgery are “not cosmetic and are life-saving for transgender people.” Yukon’s announcement also acknowledges the delay or denial of “transition-related health care can cause significant harm.”
In Canada, Yukon’s gender-affirming care policy is the most comprehensive of its kind. However, transgender and non-binary Canadians as well as advocates are calling on the federal government to implement better gender-affirming health care coverage across the country. In recent years, the evidence regarding the importance of gender-affirming care for transgender and non-binary people has grown exponentially. The data supports the connection between gender-affirming health care and improvements in mental health outcomes and overall well-being. However, it is not enough for just one of Canada’s thirteen provinces and territories to adopt a progressive gender-affirming health care policy. In order to ensure equitable health care access for all transgender and non-binary Canadians, other provinces and territories should follow Yukon’s lead.
Conclusion
In 2017, Canada’s Bill C-16 intended to provide equal protection under the law to transgender and non-binary people. Five years later, Québec’s Bill 2 introduced ‘X’ gender markers. While both are steps toward the inclusion of transgender and non-binary people, legislative work is still required to support these communities in Canada effectively. Transgender and gender-diverse people in Canada continue to experience substantial barriers to accessing gender-affirming health care.
From difficulty changing gender markers on health cards to inadequate public health coverage for gender-affirming care, these marginalized communities often have few viable administrative and legal remedies to tackle barriers within the Canadian health care system. Canadian policymakers and legislators should go beyond creating laws and policies that legally recognize the existence of transgender and non-binary people. Instead, policymakers and legislators should work to reduce the significant burden placed on transgender and non-binary people by the health care system they rely on to access various forms of gender-affirming health care.Word Count: 1138 words
Stephanie Kay is the Senior Online Editor of the McGill Journal of Law and Health. She is currently in her second year of the BCL/JD program at McGill University’s Faculty of Law. Before starting law school, Stephanie completed a Bachelor of Health Sciences (Honours) at McMaster University and worked in communications.
McGill Journal of Law and Health 