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Human Rights, Transsexed Bodies, and Health Care in Canada: What Counts as Legal Protection?

Published online by Cambridge University Press:  02 January 2013

Lane R. Mandlis
Lane R. Mandlis
Affiliation:
Department of Sociology 5–21 HM Tory Building, University of Alberta, Edmonton, AB T6G 2H4, Canada
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Abstract

Antidiscrimination legislation is the vehicle most commonly used by communities to demand equality, but how should such law best be employed? In this article, the Ontario Human Rights Tribunal decision in Hogan v. Ontario (Health and Long-term Care) is examined in relation to the removal of sex reassignment surgery from the Alberta Healthcare Insurance Plan in order to better understand the legal strategies designed to remedy different kinds of discrimination. This article argues that trans issues (involving people who identify as transgender, transsexual, or trans) ought not to be seen as additions to gay and lesbian issues legally or politically. Moreover, this article demonstrates that the fight for formal inclusion in legislation as a discrete or insular minority should be rejected by trans activists, as other legal strategies are better positioned to combat the processes of transphobia, thus potentially offering important steps towards substantive equality.

Résumé

La législation sur l'antidiscrimination est le véhicule le plus couramment utilisé par les communautés pour demander l'égalité, mais comment une telle législation pourraitelle être employée le mieux possible? Cet article examine la décision prise par le Tribunal des droits de la personne de l'Ontario dans Hogan c. Ontario (Santé et Soins de longue durée)en ce qui concerne le retrait de l'inversion sexuelle chirurgicale du Régime de l'assurance-maladie de l'Alberta afin de mieux comprendre les stratégies juridiques conçues pour remédier aux différentes sortes de discrimination. Cet article soutient que les questions de trans (incluant les personnes qui s'identifient comme transgenre, transsexuelle ou trans) ne devraient pas être considérées comme des ajouts à celles concernant les gais et les lesbiennes, juridiquement ou politiquement. De plus, cet article montre que le combat pour une inclusion officielle dans la législation en tant que minorité distincte ou isolée devrait être rejeté par les activistes trans, car il existe d'autres stratégies juridiques davantage en mesure de combattre les processus de transphobie, ce qui constituerait ainsi une importante avancée vers une égalité réelle.

Keywords

transgender rightstranssexual rightsgender identity and lawdroits des personnes transgenresdroits des transsexuelsidentité sexuelle et la loi
Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 26 , Issue 3 , December 2011 , pp. 509 - 529
Copyright
Copyright © Canadian Law and Society Association 2011

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References

1 Rose, Nikolas, Powers of Freedom: Reframing Political Thought (Cambridge: Cambridge University Press, 1999), 79CrossRefGoogle Scholar.

2 Kennedy, Duncan, “The Critique of Rights in Critical Legal Studies,” in Left Legalism/Left Critique, ed. Brown, Wendy and Halley, Janet (Durham, NC: Duke University Press, 2002), 188Google Scholar.

3 The Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being schedule ? of the Canada Act 1982 (UK), 1982, c.11 [Charter].

4 I use the term “trans” as an umbrella term encompassing many different forms of gender-crossing embodiments including (but not limited to) cross-dresser, gender-queer, transgender, and transsex. When I am specifically referring to people who engage in forms of medically assisted transition (such as the use of hormone therapy and/or surgery) I use the term transsexed. For further explanation of the differences between different embodiments under the “trans” umbrella see Mandlis, Lane R., “Whose Crazy Investment in Sex?” Journal of Homosexuality 58, 2 (2011), 234CrossRefGoogle ScholarPubMed; Dixon, Krista Scott, “Introduction: Trans/forming Feminisms” in Trans/Forming Feminisms: Trans-Feminist Voices Speak Out, ed. Scott-Dixon, Krista, 12–15 (Toronto: Sumach Press, 2006)Google Scholar.

5 Young, , “Why Rights Now? Law and Desperation,” in Poverty: Rights, Social Citizenship, and Legal Activism, ed. Young, Margot, Boyd, Susan B., Brodsky, Gwen, and Day, Shelagh (Vancouver: UBC Press, 2007), 322Google Scholar.

6 Spade, Dean, “Documenting Gender,” Hastings Law Journal 59 (2008): 731Google Scholar; Findlay, Barbara et al. , Finding Our Place: Transgendered Law Reform Project (Vancouver: High Risk Project Society, 1996)Google Scholar. See especially Canada (A.G.) v. Canada (Canadian Human Rights Commission) 2003 FCT 89, 228 FTR 231; Kavanagh v. Canada (A.G.) [2001] CHRD No. 21; Kimberly Nixon v. Vancouver Rape Relief and Women's Shelter, [2002] BCHRTD No. 1; Magnone v. British Columbia Ferry Services and others (No. 3), 2008 BCHRT 191; Montreuil v. National Bank of Canada, 2004 CHRT 7, 48 CHRR 436; Sheridan v. Sanctuary Investments Ltd. (1999), 33 CHRR D/467; Mamela v. Vancouver Lesbian Connection, [1999] BCHRTD No. 51; Ferris v. OTEU, Local 15, [1999] BCHRTD No. 55; Vancouver Rape Relief v. British Columbia (Human Rights Comm), 2000 BCSC 889.

7 Findlay et al., Finding Our Place.

8 Ibid.

9 An important and timely example of this is the Private Members bill, Bill C-389 (An act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression), 40th Parl., 3rd Sess., 2010), which passed readings in the Senate but was not passed into law prior to the election call in 2011. This bill was designed to add gender identity and gender expression to both the criminal code (for inclusion as a ground for hate crimes) and to federal human rights legislation. The bill was reintroduced as Bill C-276 in Parliament in September 2011.

10 Findlay, et al. , Finding Our Place, p. 27Google Scholar.

11 For an in-depth examination of documentation difficulties in the US see Spade, “Documenting Gender.” For Canadian examples see Namaste, Viviane K., Invisible Lives: the Erasure of Transsexual and Transgendered People (Chicago: University of Chicago Press, 2000)Google Scholar; Namaste, Viviane K., Sex Change Social Change: Reflections on Identity, Institutions and Imperialism (Toronto: Women's Press, 2005)Google Scholar; Noble, Jean Bobby, Sons of the Movement: FtMs Risking Incoherence on a Post-Queer Cultural Landscape (Toronto: Women's Press, 2006)Google Scholar; Findlay et al., Finding Our Place.

12 See Namaste, Invisible Lives; Namaste, Sex Change; Spade, “Documenting Gender”; Spade, Dean and Arkles, Gabriel Z., “Deregulating Gender: Transgender Rights in the U.S.,” Society for the Psychological Study of Lesbian, Gay and Bisexual Issues Newsletter (2005), 18–19Google Scholar; Findlay et al., Finding Our Place.

13 SRS is also sometimes referred to as gender reassignment surgery (GRS). References to either are considered within the scope of this article to be referring to the same thing. Although academically there have been discussions about the most appropriate terminology (see Hausman, Bernice, Changing Sex: Transsexualism, Technology, and the Idea of Gender (Durham, NC: Duke University Press, 1995Google Scholar); Heath, R.A., The Praeger Handbook of Transsexuality: Changing Gender to Match Mindset (Westport, CT: Praeger, 2006)Google Scholar), these debates are not relevant to the larger discussion of the requirement of surgery for documentation and/or the access to surgery through public health-care funding considered here. Access to surgical intervention is not the only barrier to health care, nor is it necessary or desired by all members of the community. It is, however, important to recognize that it is necessary and desired by some members of the community, and it is not readily available for many who need it. Moreover, the linking of citizenship documents and other government-issued ID with surgical status for trans people makes surgical access an important, although insufficient, point in any consideration of trans equality.

14 Canada Health Act, RSC 1985, c. C-6, s.3.

15 See, e.g., Cameron v. Nova Scotia (A.G.) (1999), 177 DLR (4th) 611, [1999] NSJ No. 297; [1999] NSJ No. 33; leave to appeal refused (2000), [1999] SCCA No. 531, 259 NR 397, [2000] 1 SCR viii; reconsideration refused (2001), SCC; Brown v. British Columbia (Minister of Health) (1990), 48 CRR 137, 66 DLR (4th) 444.

16 As of 2010, British Columbia, Saskatchewan, Ontario, Quebec, and Newfoundland and Labrador provide funding on a discretionary basis; Alberta, Manitoba, Prince Edward Island, Nova Scotia, and New Brunswick do not fund surgeries. Data for the Territories is not available. “Provincial Updates” Canadian Professional Association of Transgender Health, http://www.cpath.ca/resources/provincial-resources/.

17 R. v. Morgentaler, [1988] 1 SCR 30, Dickson CJ, Lamer J [Morgentaler].

18 Ibid. at 32.

19 Ibid. at 33.

20 See Brown, George R., “Autocastration and Autopenectomy as Surgical Self-Treatment in Incarcerated Persons with Gender Identity Disorder,” International Journal of Transgenderism 12 (2010), 31CrossRefGoogle Scholar; Baltieri, Danilo Antonio, Cortez, Fernanda Cestaro Prado, and De Andrade, Arthur Guerra, “Ethical Conflicts over the Management of Transsexual Adolescents—Reports of Two Cases,” Journal of Sexual Medicine 6 (2009), 3214CrossRefGoogle Scholar; Gehi, Pooja S. and Arkles, Gabriel, “Unraveling Injustice: Race and Class Impact of Medicaid Exclusions of Transition-Related Healthcare,” Sexuality Research & Social Policy 4 (2007), 7CrossRefGoogle Scholar; Gorton, R. Nick, “Transgender Health Benefits: Collateral Damage in the Resolution of the National Health Care Financing Dilemma,” Sexuality Research & Social Policy 4 (2007), 81CrossRefGoogle Scholar.

21 Morgentaler at 39, McIntyre and LaForest JJ, dissenting.

22 See Gehi and Arkles, “Unraveling Justice”; Gorton, “Transgender Health”; Spade, “Documenting Gender.”

23 Spade, “Documenting Gender.”

24 The Vital Statistics Act, RSA 2000, c. V-4, s. 22.

25 It is also important to recognize the problems inherent with suggesting that individuals be forced to move provinces in order to access health care or ID. Particularly when considering the barriers to legal employment already faced by many within this community, suggesting a move to another province only compounds the financial burden faced by those unable to access gender-confirming health care. Moving provinces also means moving away from family and social supports, increasing both psychological and financial stress for individuals. Moreover, all of the Canadian provinces require some form of legitimizing surgical intervention for gender re-classification. CED (West 3rd), “Vital Statistics,” at § 141–146. Vital Statistics Act, RSNS 1989, c. 494, s. 25. Vital Statistics Act, SNB 1979, c. V-3, s. 34. Vital Statistics Act, SN 2009, c. V-6.01, s. 26. Vital Statistics Act, SPEI 1996, c. 48, s. 12.

26 Hogan v. Ontario (Health and Long-Term Care) 2006 HRTO 32 [Hogan].

27 Ontario Human Rights Code, RSO 1990, c. H.19.

28 Alberta Human Rights Act, RSA 2000 c. A-25.5.

29 Hogan at para. 17.

30 Ibid. at para. 125. The partially dissenting opinion did not contest this point.

31 Spade, “Documenting Gender.” See, e.g., Chambers, Lori, “Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People,” Canadian Journal of Women and the Law 19 (2007), 305Google Scholar; Mathen, Carissima, “Transgendered Persons and Feminist Strategy,” Canadian Journal of Women and the Law 16 (2004), 291Google Scholar; Currah, Paisley and Minter, Shannon, “Unprincipled Exclusions: the Struggle to Achieve Judicial and Legislative Equality for Transgender People,” William & Mary Journal of Women & Law 7 (2000), 37Google Scholar; Lamble, Sarah, “Unknowable Bodies, Unthinkable Sexualities: Lesbian and Transgender Legal Invisibility in the Toronto Women's Bathhouse Raid,” Social & Legal Studies 18 (2009), 111CrossRefGoogle Scholar.

32 Lang, Michelle, “Sex Change Funding Cut to Spark Rights Complaints,” Calgary Herald (April 14, 2009)Google Scholar.

33 Audette, Trish, “Alberta to Fund 50 Sex-Change Operations,” Dawson Creek Daily News (April 15, 2009)Google Scholar.

34 Lang, Michelle, “Chiropractor Treatment Funding Draws Fire; Sex Change Surgery also Affected,” Calgary Herald (April 8, 2009)Google Scholar.

35 “Alberta Provincial Budget 2009,” Government of Alberta (last updated April 24, 2009), http://budget2009.alberta.ca/albertans/index.html.

36 Ibid.

37 Ibid.

38 The two psychiatrists charged with overseeing the Alberta Healthcare GRS programme were not contacted. No other psychiatrists in Alberta are able to provide an initial diagnosis leading to funding for GRS under the previous programme or the current grandparenting scheme; therefore, no other psychiatrist in the province should be considered to be a qualified expert in this area.

39 Audette, “Alberta to Fund.”

40 One example of this is Alberta's repeated and deliberate choice not to include sexual orientation in provincial human rights legislation, as commented upon by Cory, J. in Vriend v. Alberta [1998]Google Scholar 1 SCR 493, at para. 62 [Vriend].

41 Hogan at para. 73.

42 Young, “Why Rights.”

43 Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 SCR 927 at 989–990 [Irwin Toy]. In this case the Supreme Court of Canada found that the proper allocation of acutely limited resources requires the government to make difficult decisions regarding the balancing of competing interests, and how that balance is struck. This, the court found, is an imperative in which the government, as an elected, representative body, is in a better position to mediate these choices than the courts or tribunals.

44 Hogan at para. 103.

45 Ibid. at para. 104; Irwin Toy at 93.

46 Hogan at para. 260, Hendriks Vice-Chair, dissenting.

47 Ibid. at para. 263.

48 Ibid. at para. 379.

49 Ibid. at para. 378; Irwin Toy at 989–90.

50 Hogan at para. 380, Hendriks Vice-Chair, dissenting; Vriend at para. 126 [references omitted].

51 Hogan at para. 106.

52 Ibid.

53 This phase-out program was communicated via private correspondence. The information as presented here has been funnelled through medical channels to individuals affected by the change. The first public suggestion of such a program (but with no details as to scope or requirements) came about during question period in the Legislature when Liepert suggested first that there were 26 people waiting for surgery, and then amended that to add 20 more (Audette, Trish, “Sex-Change Surgery List Doubles; Liepert Expands Funding After Media Reports Highlight Concerns,” Edmonton Journal (April 15, 2009)Google Scholar). The source of Liepert's numbers is unknown, and seems to bear little, if any, resemblance to actual numbers of transsexed Albertans seeking SRS.

54 The lone unsuccessful claimant in Hogan was unsuccessful because the majority found that he was not aware of Ontario's SRS program until after the funding had been cut, and that he had not begun treatment or transition prior to the delisting of SRS in 1998 (these are two of the criteria mentioned in the Alberta phase out). The six-year time frame specified in Hogan was based on actual documented timeframes for completion of SRS under the Ontario format. Alberta's timeframe appears to be based solely on that, with no consideration of whether the timeframes for Albertans are similar or not. As the referral system in Alberta functions differently from the Ontario system for medical transition, it should not be assumed that the timeframe for completion of SRS in both provinces is the same.

55 Spade, , “Documenting Gender,” 770Google Scholar.

56 Although, ostensibly, antidiscrimination legislation is designed to protect people from exactly these kind of discriminations, it is unable to do so for a number of reasons. This point has been made by many scholars in many contexts and is not limited to a trans context. Spade, , “Documenting Gender,” 777Google Scholar. See, generally, Iyer, Nitya, “Categorical Denials: Equality Rights and the Shaping of Social Identity,” Queen's Law Journal 19 (1993–1994), 179Google Scholar; Fudge, Judy, “What Do We Mean by Law and Social Transformation?” Canadian Journal of Law and Society 5 (1990), 485CrossRefGoogle Scholar; Glasbeek, Harry J., “Some Strategies for an Unlikely Task: The Progressive Use of Law,” Ottawa Law Review 12 (1989), 387Google Scholar; Gotell, Lise, “The Ideal Victim, The Hysterical Complainant, and The Disclosure of Confidential Records: The Implications of the Charter for Sexual Assault,” Osgoode Hall Law Journal 40 (2002), 251Google Scholar; Fudge, Judy, “Evaluating Rights Litigation as a Form of Transformative Feminist Politics,” Canadian Journal of Law ana Society 7 (1992), 153CrossRefGoogle Scholar; Spade, Dean, “Compliance is Gendered: Struggling for Gender Self-Determination in a Hostile Economy,” in Transgender Rights, ed. Currah, Paisley, Juang, Richard M., and Minter, Shannon Price (Minneapolis: University of Minnesota Press, 2006), 217Google Scholar; Fudge, Judy, “The Public/Private Distinction: The Possibilities of and the Limits to the use of Charter Litigation to Further Feminist Struggles,” Osgoode Hall Law Journal 25 (1987), 485Google Scholar.

57 Mandlis, Lane R., “Art Installation as Method: ‘Fragements’ of Theory and Tape,” Qualitative Inquiry 15 (2009), 1353–54CrossRefGoogle Scholar.

58 Spade, “Documenting Gender.”

59 Crenshaw, , “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” Harvard Law Review 101 (1988), 1341CrossRefGoogle Scholar.

60 Ibid., 1342.

61 Ibid., 1346.

62 Spade, , “Documenting Gender,” 777Google Scholar.

63 This is what Private Members' Bill C-389 is trying to achieve.

64 This was the case prior to the inclusion of sexual orientation within legislation. Courts dismissed cases brought by gay men under grounds other than sexual orientation precisely because the discrimination occurred under the ground of sexual orientation—a ground that was in fact not covered. See, e.g., Damien v. Ontario Human Rights Commission (1976), 12 OR (2d) 262 (HCJ); A.-G. Canada v. Mossop, [1993] 1 SCR 554, aff'g [1991] 1 FC 18, (1990), 71 DLR (4th) 661 (FCA), rev'g (1989), 10 CHRR D/6064 (Can. HR Trib).

65 Vriend.

66 Newfoundland (Treasury Board) v. Newfoundland and Labrador Association of Public and Private Employees (NAPE), [2004] 3 S.C.R. 381.