On January 28, 2021, in Center for Gender Advocacy v. Attorney General of Quebec, 2021 QCCS 191, Hon. Gregory Moore, J.C.S., the Superior Court of Quebec rendered a landmark human rights decision, invalidating a number of provisions of the Civil Code of Québec [CCQ] that were found to violate Charter rights to dignity and equality of transgender and non-binary people. The decision gives the legislator until December 31, 2021 to amend the relevant provisions to comply with the judgment.
Drawing from the testimony presented at trial, the Superior Court summarized the discrimination faced by transgender and non-binary people resulting from the existing legislative and regulatory framework that required the Court’s intervention:
| [16] These articles lead to the misidentification of transgender and non-binary people and create confusion about their true identity. [17] Confusion, misunderstanding and intolerance of transgender and non-binary people can lead to persecution and violence, which some try to avoid by withdrawing from situations that require the presentation of a government-issued identity document, such as registering for school, applying for a job, or seeking medical help. Being under-educated, under-employed, and unhealthy can create new, exponential problems for transgender and non-binary people. They frequently turn to suicide to end the suffering caused by living in a world that does not acknowledge their identity and that fights their attempts to affirm it. |
The Registrar of Civil Status and Gender Identity of Non-Binary People
Certain provisions[1] were invalidated insofar as they did not allow non-binary people to change their designation of sex on acts or certificates of civil status to correspond to their gender identity, thus violating their Charter rights to dignity and equality. Those who do not identify with the male/female gender-binary will henceforth have the right to a designation that is non-binary. Furthermore, the Court took formal notice of the Registrar of Civil Status’s undertaking to issue certificates of civil status that do not include a designation of sex, upon request.
A Win for Trans and Non-Binary Parents
In addition, those provisions of the CCQ[2] that require a newborn’s parents to be identified by the gendered terms “mother” and “father” on attestations and declarations of birth, were found to be in violation of the dignity and equality rights of non-binary parents:
| [184] By declaring that they are the “mother” and “father”, parents claim the child as their own and announce that they will guide the child through life. Both have important legal and personal consequences. On the other hand, forcing people who have the same bond and want the same responsibilities to declare that they are “mother” or “father” when they cannot identify with either term, diminishes the roles that they play in their children’s lives. Being a parent is a fundamental aspect of one’s identity. Being properly identified on a child’s act of birth is a benefit that non-binary parents do not have but that every other parent does. [Our emphasis] |
As such, non-binary parents will have the right to be identified as “parent” on the birth certificates of their children.
The Court further declared that parents who have changed their name or designation of sex shall be authorized to have such changes also made on the birth certificates of their children. This is an important shift from past practices that often led to parents’ misidentification as well as inconsistencies on their children’s official documents.
Trans and Non-Binary Youths’ Rights
The decision had important implications for transgender and non-binary minors aged fourteen to seventeen (fourteen being the youngest that a minor can apply themselves for a change of designation of sex). Such minors were previously required to obtain and submit a declaration from a health professional stating that the change was “appropriate” in support of their application for a change of designation.[3] Taking into consideration the impact on young persons who cannot “find, afford, meet with or confide in a health professional who is knowledgeable about transgender issues” [par 277], the Court invalidated this legal requirement as it was found to be in violation of the dignity and equality rights of trans and non-binary youth.
Trans and Non-Binary Non-Citizens’ Rights
The requirement to be a Canadian citizen in order to seek a change of name[4] or change an act of birth to reflect one’s gender identity[5] was also found to violate the dignity and equality rights of non-citizens domiciled in Quebec. This requirement prevented, for example, trans and non-binary refugees, permanent residents and immigrants domiciled in Quebec from having their gender identity accurately reflected on the identity documents they needed to engage in the life of their adopted society, trapping them in what the Court described as “a legal ambiguity that the legislator did away with thirty years ago” [par 332].
Concluding Remarks
The majority of the above-described declarations of invalidity have been suspended until December 31, 2021, giving the legislator the opportunity to make the required changes to comply with the Judgment.
Moreover, this decision is likely to have wide-reaching impact on many other parties not directly concerned. For instance, schools and colleges who maintain student records will have to consider making changes to their forms and procedures. Businesses may wish to review the customer information that they keep. Employers may have to review and modify certain internal policies.
Our Family Law team shall be closely monitoring the forthcoming legislative amendments and remain available to advise and assist its clients in navigating the process of changes of name and designation in light of this decision.
[1] Art 71 and 146 CCQ.
[2] Art 111, 115 and 116 CCQ
[3] S 23.2 par 2 of the Regulation respecting change of name and of other particulars of civil status.
[4] Art 59 CCQ.
[5] Art 71 CCQ.
