Sunday, 20 November 2011
Well All Right JJ!
Two posts in one day? Are you mad, man? Who are you, Stephen King!? Internet, I am sure that is what you are saying. Ok, you are probably not saying that. Or maybe you are. Internet, you are such a bloody enigma.. I just can't figure you out!
Anyhoo, according to noted Master of Zen Alex's FB status its "International Transgender Day of Remembrance", which memorializes each transgender person known to have been murdered in the past year. Which of course is ridiculously and tragically high.
But it got me thinking back to law school days. Don't know if ole' JJ (JJ!) has done too many things worthy of a golf clap, but in law school I took a class called something like medical issues and the law? (E, help me out! We took it together? One class I made you laugh so hard you had to leave the classroom? Barney Sneiderman (RIP)?) It was a "paper course". Meaning the only evaluation was a paper you wrote and submitted at the end of the course.
Taking the class of course was not worthy of anything, but what I decided to write about, for a reason I swear I cannot really remember, was transgendered issues. So I did some research and even interviewed a local transgendered person ("Wow! Going all out!"), and set about my work. Admittedly, it's not particularly good.
But, after I wrote it, I sent a copy to the woman I interviewed. She asked if she could post it on the Manitoba transgendered support website, in the hopes that it could be of some assistance. I was like "cool! You bet!" Didn't give it a second thought. Afterwards I remember telling someone else in law school about it and they were like "is the great big business law firm you are going to work for next year on board with this?" And, to my discredit, I was not like "I have totally considered that angle and discounted it." Instead, I was like "Hmmm, I never really thought about it."
But I didn't ask for my paper to be taken down. And I am dang glad I didn't. I mean, don't get me wrong, helping corporations pay less income tax has its own rewards! But providing something that could be a resource (albeit admittedly very slight) to one of the most vulnerable groups in society...well, it just be feelin' good.
Although I would say...once you post something on-line...its out there. You never know who is going to read it. And possibl cite it. Every couple of years I google it. So I just did again. This time I noticed I was cited here. And here. And my whole paper is here! On a website called prison talk!
So anyways, I am going to post it here. Internet, I am not expecting you to read it. But the truth is, I didn't even have a copy of it anymore, so I figured if I post it myself, I will always know where to find it! Ha ha!
Legal issues for transgendered people - Canada and USA
By Jeff Johns
University of Manitoba
Probably the best place to start in a paper discussing transgender legal issues, is by setting out definitions of the words involved in any study of these issues.
"Sex" refers to the biological determination of male and female, while "gender" is the socially constructed identity of a person, and is described by such words as "femininity" and "masculinity." Sexual characteristics that typically differentiate between males and females are attributes such as an Adam's apple or heavy facial hair growth in males. This is contrasted by gender differences, such as that most men do not wear dresses, yet many women do.
A "transvestite" is usually defined as a male who receives arousal sexually from wearing women's clothing, and has an episodic, compelling desire to do so, while a "cross-dresser" can be either a man or woman dressing as the opposite sex, without the sexual stimulation. "Intersexuals" (once known as "hermaphrodites"), are people born with physical characteristics of both sexes, which can be of varying degrees. "Transsexuals" are people who feel they were born the opposite sex from their gender and wish to live as that sex. "Transgender" is a term that encapsulates all of the above and others who do not fit in to them but do participate in a blending of sexagenarian identities. "Gender Dysphoria" is defined as being unhappy with the sex one was born as, and is also referred to as "Gender Identity Disorder."
The probability that someone will be transgendered, in relation to the rest of the population, has been stated as 1 in 24,000 men to 1 in 103,000 women. Scientists have as yet been unable to identify a common biological thread that transgendered people share, however a recent study has found the brain structure of male to female transsexuals is closer to females than they are to other males.
Due to the breadth of the topic, this paper will limit itself to looking at transsexual cases, but some of the issues can be generalized across to include more categories of transgendered people.
In this paper, I will look at how transsexuals in Canada and Manitoba obtain treatment, and the mechanisms involved for obtaining a sex reassignment surgery and other treatment first. Next, I will look at some of the legal issues facing transgendered people in the United States and Canada. This will be divided up into changes of name and birth certificates, marriage, employment discrimination, and prison rights of transgendered people. In researching these issues I looked at a number of articles published on the subject, including a discussion paper published in 1998 by the Ontario Human rights Commission, talked with representatives at Manitoba Health, and spoke with a transgendered person living in Winnipeg.
I Mechanisms For Obtaining Treatment in Canada
The number of people who seek Sex Reassignment Surgery (SRS) is estimated at 1 in 30,000 men and 1 in 100,000 women. This is approximately twenty percent of people who have been diagnosed as gender dysphoric. The first widely publicized case of SRS occurred in 1952 when an American born as George Jorgensen flew to Denmark and returned as Christine Jorgensen. The first gender clinics began appearing in the 1960's. There are three gender dysphoria clinics in Canada: The Clarke Institute of Psychiatry in Toronto, the Montreal General Hospital's Sexuality Clinic, and the Vancouver Hospital's Gender Dysphoria Clinic.
Sex reassignment surgery costs from $5 000 to $15 000 for male to female surgery while female to male surgery costs $50 000 to $100 000. Whether the actual procedure of SRS is covered by Government health care is constitutionally in the control of the province and their health care plan. It is covered , to an extent, in British Columbia, and was covered in Ontario from 1970 up until October 1998, when the Ontario Government removed it from the services covered by the Ontario Health Insurance Plan. This may change however, as a transsexual by the name of Michele Josef is planning to take the Ontario Government to court in an effort to reverse the decision.
Manitoba Health informed me that SRS can be covered in this province, if referred by a psychiatrist and the assessor assigned to the case feels it is warranted. They require that the surgery must be performed in Canada, and the costs incident to the procedure will only be covered if the SRS is done in a hospital. I was able to find only three doctors that perform SRS in Canada, one in New Brunswick (Editor's note: This surgeon stopped doing surgery in the spring of 2000) and two in Montreal. The surgery in New Brunswick is performed in hospital, but in Montreal the procedure is done in a clinic, so the costs of the stay are not covered. Typically one or two cases a year are referred from Manitoba.
The transsexual woman I spoke to, who is scheduled for SRS later this year, described the general process that is used as follows: a person seeking to have the surgery would approach a general practitioner, that practitioner would refer that person to Manitoba Health and The Clarke Institute in Toronto. Then the person will be sent to the Institute for an assessment by four clinicians there. This expense is covered by Manitoba Health, including airfare. If the person is approved, a meeting with an endocrinologist will be set up and hormones will be prescribed. Also at this time the person will most likely begin receiving electrolysis for their beard and other body hair, if they are transitioning from male to female. While hormones do have some effect on body hair in making it more fine they do not stop it from growing. Usually, after about a year the person will be able to start "passing" and many will approach their boss about beginning to attend work as the opposite sex. The Clarke Institute requires prospective SRS candidates to live as the opposite sex for a period of two years to allow the person to acclimatize themselves to the other sex and verify that it is the appropriate procedure.
The costs of some things are covered but not the hormones or the electrolysis. If someone has a comprehensive insurance plan with their employer, these things may be covered, or, if the candidate is on welfare, the costs of the hormones will be covered. The end result of this is that with hormones working poor people are put in a difficult position, while electrolysis places a difficult financial burden on any candidate who is not secure financially. The woman I spoke to estimated that she had spent approximately 8,000 dollars on electrolysis over the past four years. The inability of a male to female transsexual to retain this treatment can result in the unfortunate physical appearance of "a truck driver in drag," which can inflict severe mental stress on the transgendered person.
The path to switching one's sex is not an easy or quick one. It involves years of treatment and learning to transform into the sex opposite from your birth. With this in mind, it is not surprising that the woman I spoke to saw the actual SRS as more of one step in a long journey than any culmination of events. She is maybe looking forward to being able to co-exist in a changing room without calling attention to herself, more than anything else.
II Legal Issues Facing Transgendered People
A. Change of Name and Birth Certificate
1. Changing Names
In the common law, the rule regarding changing one's name is that "absent fraud or prejudice to others, a person has the right to adopt or use any name." This rule has been supplanted in most jurisdictions with statute based rules that add their own requirements.
In Manitoba, Name Changes are regulated by the Change of Name Act. Section 2(3) of the Act states regarding the application for a change of name:
The application shall be refused where
a. the requirements of this Act are not met; or
b. the Director is of the opinion that the proposed name might reasonably cause mistake or confusion to any other person; or
c. the Director is of the opinion that the change of name is sought for an improper purpose or is on any other ground objectionable; or
d. the Director is of the opinion that the applicant has made frequent changes of name and the Director shall notify the applicant of the reasons for refusal and of the right to appeal.
The "Director" mentioned in the Statute is the Director of Vital Statistics for Manitoba and it would appear, possesses a large amount of discretion in allowing or refusing a name change, although section 2(4) does allow an appeal of the decision to the Courts.
The woman I interviewed said she did not face any resistance when she applied to have her name changed.
In the United States the theme of most name change statutes is basically in line with the common law rule; the change will be allowed if it is not done to avoid financial obligations. The difficulties faced by transsexual people in the U.S. regarding name changes have, for the most part, not been faced by post-operative transsexuals but rather ones in a pre-operative state. In cases in Pennsylvania and New York, although name changes were eventually allowed, the courts required that the applicant provide corroborating evidence that he or she wanted to live permanently as a member of the opposite sex.
However, cases in Ohio and New Jersey did follow the common law rule stating in the Ohio case "so long as there is no intent to defraud creditors or deceive others and the applicant has acted in good faith, then the petition should be granted." As well, in 1998 another Transsexual applied for a name change in Pennsylvania and in granting the change, the court abandoned the requirements of corroboration and asked only the common law requirements.
1. Changing designation on a Birth certificate
In their Discussion Paper: Toward a Commission Policy on Gender Identity, the Ontario Human Rights Commission adopts the following statement of the Canadian Task Force for Transgendered Law Reform statement:
The current practice of demanding that an individual declare their gender on public and private requests for services or other forms and applications is a subtle form of harassment that affects all Canadians. There is no need for gender to be declared on a driver's license, for example. Where gender must be declared all Canadians should have a third neutral option, which allows them to express that they do not wish to be identified as either female or male.
The prompting of this statement no doubt arises in part from the statutory requirements regarding alteration of the sex designation in Ontario. The Ontario Vital Statistics Act provides for a sex designation change on a birth certificate, but only allows the application after sex reassignment surgery and requires a letter from a doctor who either performed the procedure or who has physically examined the applicant, that verifies that surgery has taken place. This leaves pre-operative transsexuals, intersexed people and other transgenderists in the difficult position of having their documentary identification at odds with their gender identity.
Unfortunately, the Manitoba Vital Statistics Act essentially mirrors the Ontario statute, also requiring the application to be post SRS. Section 25(1) states:
The Director may upon application by any person who has undergone transsexual surgery and upon payment of the prescribed fee make a notation changing the designation of that person so that it will be consistent with the results of the surgery.
Section 25(2) contains the requirements for medical certificates.
The woman I talked to was not born in Canada so she does not need her birth certificate changed but will change her sex on her Canadian citizenship records once she has had surgery. This way she will be able to produce a doctor's letter to minimize the possible hassle. She has been living as a woman full time since 1996 and all her identification has her female name but retains the M of male sex. This has not been a problem for her most likely because the designation is usually not too pronounced on her identification, and because her appearance would not make anyone suspicious of her birth sex.
B. Marriage Issues
One of the more widely known cases involving a transsexual was Corbett v. Corbett, a case tried in England in 1970. The case involved a man who married a woman who had SRS. The marriage soured after a period of weeks and the man asked for an annulment on the grounds that his wife was a man and she had refused to consummate the marriage. The decision of the judge was that the marriage was void ab initio as Mrs. Corbett was born a man and that biological sex was defined at birth by ones chromosomes, gonads, and genitals, and could not be changed. This case has laid the groundwork for most common law countries and is only now beginning to change.
Canada has given inconsistent results in its jurisprudence on this subject. In C. v. C., a female to male transsexual's marriage to a woman was invalidated on the grounds that he had not surgically altered his genitalia, although the person had received a hysterectomy. This can be contrasted to M. v. M. in 1984, which voided the marriage between a male and a female who self-identified as a male. The court felt the woman had an inability to engage in heterosexual sex. The result of this case may be to allow transsexuals to marry members of the sex opposite of their gender identity, as if this is not allowed they will be prevented from marrying anyone.
In the United States, four different states have looked at the sex of transsexuals for the purpose of marriage. In New York and Ohio the courts held that post-operative transsexuals remain their previous sex, including a case where a male to female transsexual was allowed to marry another woman, despite the fact she lives as a woman and plans to have SRS. These states contrast with California and New Jersey, which have both ruled that the post-operative sex of transsexuals is the sex relevant to marriage. In M.T. v. J.T. in New Jersey, the court, in ruling that a marriage between a male and a male to female transsexual was valid, the court stated that the most humane and accurate test for "true sex" was an analysis of both anatomy and gender, and added that if the genitalia conform with the gender, that will be that person's sex. The court limited this test to marriage and also included the requirement that genitalia must be capable of intercourse.
In looking at the marriage requirements in the courts of four other countries and in the European Court of Human Rights, a recent article found that only one recognized marriages between transsexuals and members of that transsexuals former sex. In Singapore, South Africa, Australia and in the European Court of Human Rights, marriages have not been recognized. However, in New Zealand, a case by the name of Attorney General v. Otahuhu Family Court, did find that post operative transsexuals acquire their new sex for marriage purposes.
C. Employment Discrimination
As of today, there are no Canadian provincial human rights codes that explicitly protect transgendered persons. Indeed, only two human rights tribunals in Canada have had occasion to make a decision on transsexual based issues: British Columbia and Quebec.
In M.L. and Commission des droits de la personne et des droits de la jeunesse du Québec v. Maison des jeunes, heard in Quebec in 1998, a street worker with youth alleged that her termination was a direct result of her sex reassignment surgery. The Commission there found in favour of M.L. and, in doing so, widened the ground of sex discrimination in Quebec's Charter of Human Rights and Freedoms to include transsexuals. On this point the Commission made the following statement:
Drawing upon the aforementioned principles of interpretation of human rights, especially the inherent dignity of the human being, we can say that a transsexual person who is a victim of discrimination based on his being a transsexual may benefit from provisions against discrimination based on sex, once his transformations have been completed or, if you like, once his identification is perfectly unified. What is more, discrimination, even based on the process of the unification of disparate and contradictory sexual criteria, may also constitute sex-based discrimination while sex is at its most vaguely defined.
In British Columbia, a decision of the B.C. Human Rights Commission was handed down in Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.'s Lounge). It involved a male to female pre-operative transsexual and a lounge that catered to a gay and lesbian clientele. The lounge prohibited her entry on one occasion and prohibited her from using the women's washroom on another occasion. In his decision denying the barring of entrance claim as not because of "sex" or "disability", but allowing the second ground, B. Humphreys embraced both "sex" and "physical or mental disability" as grounds that protect transgendered people.
This decision has now been followed up and widened with the decisions in Mamela v. Vancouver Lesbian Connection, and Ferris v. Office and Technical Employees Union, Local 15. In Mamela, a male to female transsexual was expelled from a centre that acts as a support site for the lesbian community in Vancouver. Mamela spent a good amount of time volunteering there and making use of the services offered. In the decision, volunteering was not seen as analogous to "employment" for the purposes of discrimination, but the excluding of Mamela from the Centre and its services was discrimination under s. 8 of the British Columbia Human Rights Code, prohibiting "discrimination against persons … regarding any accommodation, service or facility customarily available to the public 133;.."
As well, in Ferris a claim of discrimination was allowed against a union pursuant to s. 13 and 14 of the Code, stating that neither a person or a trade union, employers' organization or occupational association can discriminate against any person or member because of their sex or a physical or mental disability. In Ferris a male to female transsexual's rights were sorely neglected by the trade union supposedly protecting her, when a question arose about her use of the women's washroom.
A point argued in the Ferris Case was that "sex" should be the only ground of discrimination that transsexual people are provided relief for and that "physical or mental disability" should be dropped. It was argued that "treating discrimination because a person is a transsexual as a form of sex discrimination rather than as a form of discrimination on the basis of disability is necessary to promote the dignity of transsexual and transgendered persons." In addition, it was argued that "transgendered persons who do not experience a conflict between the physiological and the psychological aspects of their gender and who do not seek medical treatment might not be protected under the ground of disability." The Commissioner declined to rule on this point as it was not relevant to the actual finding. The motives behind this argument lie in the idea that transgendered people are not "aberrations .... transgendered people do not consider themselves disordered or disabled (yet) must endure treatment by society which is often disabling in its harshness, and may have psychiatric problems as a result of trying to come to terms with an identity the world does not acknowledge."
With the publication of the Ontario Human Rights Commission's discussion paper Toward a Commission Policy on Gender Identity, it would seem that if a decision is made regarding transgendered persons, the complaint would be heard under the heading of "sex," although the Commission suggests a new heading of "Gender Identity" to eliminate any doubt that transgendered people are protected. In other provinces I was unable to find any references to protections for transgendered people or transsexuals through publications, Web sites, or reported decisions.
In Manitoba, the Manitoba Human Rights Code does not specifically list transgendered people in a protected ground , but does state as a ground, discrimination on the basis of " gender-determined characteristics or circumstances other than those included in clause (f)" (clause (f) is sex, including pregnancy). There has not been a decision going to the Manitoba Commission, but, in a survey of human rights commissions in 1991, there had been complaints from transgendered people in Manitoba, and they had been classified under "sex" and "disability."
When I asked the Winnipeg woman I spoke to whether she had faced any discrimination in her employment, she commented on the positive reaction of most of her co-workers. She made the transition from male to female while during her employment and has been fortunate to hold a position and be employed in a place where management and fellow employees have been both accommodating and supportive. Something she pointed out to me was that in her experience, many transsexuals making a transition can have difficulty if they're not already employed. If an employer is reluctant to hire a transsexual, there is little a potential applicant can do.
In the United States, there is both federal and state employment protection. Federally, there is Title VII of the United States Code, prohibiting an employer to "fail or to refuse to hire any individual, or otherwise to discriminate against any individual with respect to … compensation, terms, conditions, or privileges of employment because of ... sex" Federal courts have steadfastly refused to include transgendered persons in this definition of "sex." The case that set the precedent that has been consistently followed was Ulane v. Eastern Airlines in 1984. The case involved a male to female transsexual who had been hired as a male pilot by Eastern Airlines but was fired after undergoing SRS. The case was won at trial but on appeal the court found that the term "sex" in Title VII applied only to one's status as male or female, and found for the Airline.
In State Courts, the results of cases like these are similar to the federal ones. As many state statutes are based on Title VII's wording, judges tend to hold that the same definitions of sex should apply. The only exception, as of yet, is in New York, where two recent cases have seen fit to widen the net cast by employment discrimination statutes. In Maffei v. Kolaeton Industry, Inc., in 1995, a court heard the case of a female to male post operative transsexual under a city ordinance against gender discrimination. The person was being harassed at work and the court agreed with him and stated that a postoperative transsexual has the same protection against harassment regarding secondary sex characteristics as does any other female or male.
The other case of note is Rentos v. Oce-Office Systems, a 1996 case where a pre-operative male to female was fired when she requested time off to undergo SRS. The Court found for Rentos, including her situation in the grounds protected by New York City and State civil rights laws.
C. Transgendered Rights in Prison
While the percentage of transgendered people incarcerated is not extremely high, the treatment of such individuals is seen by advocates of transgendered people as very poor.
The general practice of correctional facilities in Canada is to allow post-operative transsexuals to be moved to facilities of their reassigned sex, while pre-operative or other transgendered people are placed in their birth-sex prison, in a segregated area. In quoting from a prison rights group's brief to the Solicitor General of Canada, the Ontario Human rights Commission, in their discussion paper noted above, states that 29 of 64 correctional facilities polled in a survey indicated that they would continue hormone therapy if it had been prescribed before incarceration. In addition 62 facilities replied that clothing appropriate to the institution was required regardless of inmate's felt gender, and 53 indicated that SRS would never be considered. The Commission adopted the Quote:
Of the 64 corrections departments that responded to our survey, only 20% reported any kind of formal policy in the housing or treatment or incarcerated transsexuals with another 20% reporting an informal policy. Perhaps in itself this should not be surprising since the incidence of transsexualism within the general population is relatively small. However, given the complexities of dealing with such inmates within a prison population, one would have to wonder at the lack of formal policy planning.
This approach to transgendered people may have to be revised by these respective institutions with the human rights complaint filed by Synthia Kavanagh with the Canadian Human Rights Commission. Ms. Kavanagh is a male to female transsexual inmate in British Columbia serving a life sentence for murder. The basis of the complaint was that she desired to be placed in a woman's prison and to receive hormone treatment and SRS. Corrections Canada settled the claim with Ms. Kavanagh, allowing the transfer to a woman's prison and agreeing to cover a portion of the procedure. As a follow up to this there are eleven other inmates seeking SRS across Canada, with at least three having lodged a formal complaint with the Canadian Human Rights Commission.
In the United States, the situation is similar to that in Canada, before the challenge by Ms. Kavagnagh. The dangers of being a transsexual in a male prison causes prison officials to place transgendered people in segregation to ensure their safety. In addition, prisons in the U.S. are required to treat transsexualism as a serious medical disorder, but are not restricted in what treatment is given for that disorder. As a result, many institutions provide only psychotherapy for their transsexual inmates or even, in one case, prescribing testosterone replacement as a treatment. Prisons are still able to find material to cite in defense of these treatments, although the majority and more accepted view now is that psychotherapy and counseling alone is a futile treatment. As well, the denial of treatment can have effects on the mental well being of the transsexual prisoner and can result in "self-mutilation and suicide." In addition the psychological effect that prolonged segregation can have on the inmate must be considered. Transgender advocates feel that the best place for transsexuals is the facility of the sex they are transitioning into.
A case where this view won out was Crosby v. Reynolds, a case in Maine in 1991, where a female inmate protested the moving of a transsexual inmate to a women's prison. There the court ruled that there was no indication the transsexual inmate would be a danger to anyone in the prison and that her right to survival outweighed the other inmate's right to privacy.
In 1993, a 21-year-old woman from Nebraska was living as a male, and suffered catastrophic consequences because of it. When two of her male friends discovered her biological sex, they severely beat and raped her. Two weeks later the same men went to her house and murdered her. Incidences such as these are very rare but perhaps signifies the very extreme of the reaction some people have to transgendered people in our society. It seems that in a society so intent on labelling things as "this" or "that," transgendered people are ones who fit in no sexual mould. When confronted with this, it is the reaction of many to not recognize the problems transgendered people have or attempt to sympathize in any way. It is with this in mind that the law must move towards protecting transgendered people and allowing them the same rights as anyone else. To be married, to be employed, and to be safe are all rights we cherish and to deny anyone these rights cannot be supported in a society of which we wish to be proud.