REGINA – Instead of focusing on discrimination, a lawyer is using the Charter of Rights and Freedoms as the basis for a lawsuit addressing transgender human-rights complaints.
“How one wants to express one’s self in the world should be up to you and nobody else. You shouldn’t have to justify that the anybody,” Saskatoon-based lawyer Larry Kowalchuk said.
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Kowalchuk and his clients, a number of parents of transgender children and a trans woman, argue needing a third party – a physician or psychologist – to verify your gender, the lack of option for having no gender, and preventing people under 18 from changing their gender markings – “M” or “F” – on documents violates their right to freedom of expression.
A second part of the suit accuses the province and Saskatchewan Human Rights Commission of violating their charter rights, through the current draft of the Vital Statistics Act.
This act is currently in the process of being reviewed by the Ministry of Justice.
In February, a consent order was issued by the Court of Queen’s Bench, making it so transgender people can correct their gender markings on documents like a birth certificate without confirming they’ve undergone gender reassignment surgery.
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Laura Budd became the first person in Saskatchewan to receive corrected ID under these rules on Feb. 26.
The Melville, Sask. woman had to get verification she is a woman from her family doctor. She doesn’t agree with the need for third-party verification though, saying it can be very damaging for people who have struggled with gender identity all their life.
“You’ve convinced your family that you are who you are, for those under 18 especially, and now you have to convince a third party in order for the government to recognize you as a person,” Budd said.
Budd works as a sexual and gender diversity consultant, and said identification is an often forgotten issue for those who don’t identify with a specific gender.
“Society generally tells them that they cannot exist. Not only do they not exist, but they cannot exist. We need to have this discussion, and we need to update this information,” she explained.
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Since Budd corrected her birth certificate, eHealth Saskatchewan has received eight more applications.
Currently, the agency uses interim regulations while the Justice Ministry reviews the Vital Statistics Act.
These regulations, which require third party support for the change, are based on what other provinces require for gender markings changes.
“I guess for individuals when they’re coming in to demonstrate that that intent is there, and that’s the process that they’re going through,” Alyssa Daku, eHealth Saskatchewan vice-president of strategy, quality and risk management ,said.
British Columbia, Alberta, Manitoba, Ontario, Quebec, Nova Scotia, Newfoundland, and Nunavut all require some form of third party support.
The Ministry of Justice won’t comment on the legal proceedings, but a spokesperson said now that the election is over they hope to begin consolations on the Vital Statistics Act soon, and introduce changes in the spring.
The Saskatchewan Human Rights Commission is sympathetic to the concerns of the plaintiffs. Chief Commissioner Judge David Arnot says these changes are usually incremental and are moving at the usual legislative speed.
However, he fears litigation could slow the positive change.
“There’s very nuanced complicated issues where expert witnesses would have to be called. The litigation in this could take four to five years quite easily I could predict that,” he said.