Human rights tribunal orders province to add non-binary option on birth certificates

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This article was published 05/11/2019 (2536 days ago), so information in it may no longer be current.

Forcing people to identify as “male” or “female” when applying for a birth certificate discriminates against those who identify as non-binary, a Manitoba Human Rights Commission tribunal has ruled.

The decision involves a former Manitoban known only as T. A., who identifies as pangender.

T.A. filed a complaint with the commission in 2015, naming the provincial government, Vital Statistics Agency and Manitoba Justice as respondents. T.A. alleged the requirement that birth certificate applicants identify as either male or female breaches a section of the Human Rights Code respecting discrimination based on gender identity.

“I find the seriousness of the conduct to be the high end,” tribunal adjudicator Dan Manning said in a written decision released Monday. “Gender identity is a part of our concept of selfhood… (The) practice to not allow non-binary designations of sex designation and only permit male or female designations was effectively the government refusing to acknowledge T. A.’s agency and personhood.”

Manning ordered the province revise its sex designation criteria to include recognition of a non-binary option on Manitoba birth certificates within the next six months, take “reasonable steps” to publicize the change within the next month, and award T.A. $50,000, payable within the next month.

T.A. now lives in another province and is seeking citizenship in South Africa. Forcing T.A. to deny their gender identity and identify as male or female deprives them of a “foundational document” necessary to secure other identity documents, such as a passport, T.A.’s lawyer told the tribunal at a hearing last month.

T.A. had been “severely ill” and experienced periods of homelessness when, in 2012, T.A. decided to pursue changing the sex designations on all their identify documents, the tribunal heard.

Not being allowed to express their true gender identity has resulted in “adverse impacts” for T.A., including discomfort in sense of self, anxiety, and exposure to ridicule, the tribunal was told.

T.A. wrote to the Vital Statistics Agency in December 2013, requesting to remove the sex designation from their birth certificate, and included a supporting letter from a psychologist. The director responded, advising the only sex designations available were “male” or “female.”

“The effect of this practice is that non-binary individuals are either denied a birth certificate or denied an accurate birth certificate,” Manning said.

“In my view, the respondent discriminated against the complainant by denying them a gender congruent birth certificate,” he said. “This is a service otherwise offered to people who identify as male or female.”

Manning said there is no barrier to the Vital Statistics Agency providing an “X” designation for those who identify as non-binary.

While the Vital Statistics Agency is not directly responsible for the discrimination T.A. faced by third parties, “the plight of trans and non-binary individuals is and was well-known in 2013-14,” Manning said.

“The respondent knew or ought to have known that people living as trans or non-binary are already facing multiple barriers in society.”

T.A.’s lawyer could not be reached for comment Tuesday.

Manitoba Finance Minister Scott Fielding, whose portfolio includes responsibility for the Vital Statistics Agency, was not made available for an interview.

A government spokesperson said “the province has received the adjudicator’s decision, and will now carefully review it to determine next steps.”

dean.pritchard@freepress.mb.ca