Bill C-16 protects transgender people but getting government IDs still a struggle

[Rachel Lauren Clark and other trans people share stories about their hurdles to have their gender officially changed on government IDs, such as passports and birth certificates.]

After immigrating to Canada from the United States in January 2003, Rachel Lauren Clark says she spent more than 12 years feeling like a prisoner.

Her detention centre was, as the trans woman describes it, a small, mundane and unremarkable 20 square kilometre perimeter around her home in downtown Toronto. She was prohibited from getting on a bus and travelling to another province, or boarding a plane to visit her mother, who still lived in New York state. She was, as she calls it, “a prisoner of area.”

“I was stuck because I had no ID to prove who I was,” Clark says. “When you don’t have ID, you become a non-person and it is almost impossible to live. I couldn’t get my documents because the government was unwilling to accept that I was transgender.”

Clark is one of several trans people who spoke to Yahoo Canada News about the many significant hurdles they have encountered when dealing with the federal government.

This laundry-list of complaints vis-a-vis federal policy includes: the inability to acquire a full-term passport, the struggle to have one’s gender officially changed on a birth certificate and the simple absence of being counted on the national census, amongst many others.

Morgane Oger, the chair of the Vancouver-based Trans Alliance Society, has also faced many of the same difficulties as Clark.

She says that the repeated roadblocks thrown up in her way have a harmful impact on Canadians who, like her, identify as transgender.

“I’ve had to struggle to get my government documents just to reflect who I really am,” Oger says. “That’s incredibly frustrating when your national government puts up walls and doesn’t accept you.”

After a decade of battling against the Harper government to improve transgender rights, Oger is cautiously optimistic that change could be on the horizon.

Her reason for careful optimism is Bill C-16.

Tabled in the House of Commons last month by federal Justice Minister Jody Wilson-Raybould, the bill would, if passed, amend the Canadian Human Rights Act and the Criminal Code to protect trans people based on the grounds of gender identity and gender expression.

This means that not only would trans people be protected from crimes, such as hate speech, but the federal government would also, in theory, have to change its policies, internally and externally, in order to be more sensitive to the needs of transgender Canadians.

David Rayside, a professor emeritus of political science at the University of Toronto, says he is confident this bill will pass and become law.

Although previous versions of this bill have been put forward (and defeated) in past sessions of Parliament, Rayside says the fact the legislation, this time, is being put forward by the sitting government carries considerable weight.

What Rayside says is worth watching, however, is how the changes the bill promotes will play out on the front lines — long after it has been given the rubber stamp in Parliament.  

“There is always a difference between the formal policy announcement and the objectives of a bill and the realities on the ground,” Rayside says.

A good example of this gap between law and reality, he says, can be seen in relation to issues of race and indigenous peoples in Canada.

“Certainly [these criticisms] do not mean that the change in law isn’t significant,” he says. “It just means that [federal] institutions need to be ready to review and change their policies in order to be more sensitive to the needs of trans Canadians.”

If anyone can testify to the chasm that exists between government policy and its practical application, it’s Jan Buterman, president of the Trans Equality Society of Alberta.

In 2008, Buterman was fired by his Edmonton-area school board after he transitioned from female to male even though, he argues, provincial statutes say that gender identity is not a valid reason upon which to fire a public servant, such as a teacher.

“They just plain disregarded that,” Buterman says. “And it has fallen to me to try to defend my rights in court.”

While it is important to note that C-16, as a federal law, would not have protected Buterman’s job, it’s a case study, he says, in how the rhetoric of government and how policies are implemented and carried out on the ground are not always working in perfect synchronicity.

Should C-16 become law, Buterman says he hopes to see significant changes in how several federal departments and agencies, such as Immigration, Refugees and Citizenship Canada and Statistics Canada, conduct business. In short, he says they need to change to be less “transphobic.”

“Statistics Canada’s obligation is to collect statistics that reflect the condition of Canadian people,” Buterman says. “But at no time have they ever tracked how many people stopped being men or women or neither.”

In an email to Yahoo Canada News, a spokeswoman for Statistics Canada said that the agency “endeavours to adapt their surveys […] to ensure they continue to remain relevant and reflect demographic and societal changes observed in Canada. For the 2016 Census, Statistics Canada established a process that will assist transgender people in responding to the questionnaire […] and instructions have been proved to Statistics Canada employees to assist Canadians.”

Similarly, a spokesman for the Department of Immigration, Refugees and Citizenship Canada said, in an email, that: “the passport program works regularly on updating policies and procedures as part of our ongoing efforts aimed at improving service delivery […] security, integrity, and increasing program efficiencies.”

Despite these statements of assurance, Buterman remains skeptical about whether or not the changes mandated by C-16 will be positively enforced or whether they will be implemented voluntarily.

For example, he says he is concerned about whether citizens would have to first complain about a federal policy that they deem violates the protections on the grounds of gender identity and/or gender expression.

“I hope the law’s implementation would be proactive,” Buterman says. “It would not be fair to trans people to have to go to court to ensure that more fair practices are brought in.”

While the potential implementation process is still currently in its infancy, early indications are that the federal government appears poised to ensure that any law is fully implemented and enforced, says Gabrielle Bouchard, the trans advocacy co-ordinator with the Montreal-based Centre for Gender Advocacy.

She says she believes this will be the case because the Canadian Human Rights Commission has already embarked on a coast-to-coast consultation tour to hear from stakeholder groups on changes they would like to see implemented, should C-16 become law.

In a statement emailed to Yahoo Canada News, Marie-Claude Landry, chief commissioner of the Canadian Human Right Commission echoed Bouchard’s sentiments.

“Nobody should have to live in fear because of who they are,” she says.

“Transgender rights are human rights and we will protect these rights by effectively processing complaints, encouraging better policies and practices, and supporting education.”

In addition, Bouchard says she hopes that federal justice department will play a role in helping to shepherd the bill’s implementation throughout the federal government.  

In many ways, the federal government would be wise to take stock of Ontario’s experience in implementing its own version of C-16, which was called Toby’s Act. That bill passed in June 2012.

“The experience of how that bill rolled itself out has been remarkably strong,” says renowned trans activist Susan Gapka. “It is, in many ways, the benchmark for how for these kinds of laws should operate in theory and in practice.”

Gapka says Toby’s Act has been effective because it has done two things.

First, it has gotten buy-in from provincial ministries, and second, it has also helped incorporate the strengths of civil society groups to help teach civil servants about how trans Ontarians have been historically marginalized by government policy.

A recent win that Gapka says epitomizes a different way of policy implementation is the Ontario government’s new Correctional Services Policy surrounding trans inmates.

Still, Cheri DiNovo, the Toronto MPP who brought forward Toby’s Act in Ontario, says that even if C-16 becomes law at the federal level, it will only be a first step.

That’s because the bill will only cover areas that fall within federal jurisdiction. As such, many major areas of life, such as healthcare, employment and housing will all still require provincial action to ensure human rights safeguards for transgender Canadians.

“The provinces still have to do their work,” DiNovo says. “The good news is that federal action is hugely symbolic and it will put incredible pressure of the provinces that don’t have transgender human rights safeguards to put them in place immediately.”

For Clark, Oger, Buterman and Gapka, the federal legislation currently before Parliament, serves as a focal point for a movement that has lurked in the shadows and on the margins for decades. It’s a rallying cry, they say, to reinforce the idea that trans rights are now part of Canada’s collective consciousness — and that no one should be purposefully left behind.