We Still Have Genders Markers Because…Why?

KJIPUKTUK (Halifax) – Legislation introduced April 8 in the Nova Scotia House of Assembly nominally fulfills a campaign promise of the McNeil Liberals to enable trans and gender non-conforming Nova Scotians to more easily alter the official gender designation on personal documents issued by the provincial government, including birth certificates and driver’s licenses. The Bill also eases the change of name process for people as young as sixteen, removing requirements for parental consent.

Jessica Durling, President of King’s Pride and a University of Kings College student, initiated the legislative effort through personal advocacy and networking with The Youth Project, the Nova Scotia Rainbow Action Project (NSRAP), South House, and others.

A Bill briefing at Province House on the morning of April 8th clarified the intent of legislation, introduced for First Reading the same afternoon.

Of the Bill, we currently know this much:

• The Bill amends two Acts: The Vital Statistics Act (through which birth certificates are issued, for example, and official records of identity maintained, noting certain ascribed characteristics, including gender); and the Change of Name Act (governing change of legal name).

• Vital Statistics Act changes alter requirements for gender marker change from SRS (“sex reassignment surgery”, a/k/a GRS, “gender reassignment surgery”, both euphemisms for gender-affirming genital reconstruction surgery) to verification of gender status by health care practitioners, including (consistent with current international health care standards) Social Workers.

• Change of Name Act changes will enable individuals as young as sixteen to legally change their name. Currently, parental permission is required for individuals below the age of provincial majority (19). This eases the process of youth being recognized in their lived identities, even if they are opposed in their identity or transition by their parents or guardians. Change of gender status becomes part and parcel of the name change process under the proposed legislation.

Make no mistake: these are needed and important changes.

Advocates have praised the action and what changes are proposed certainly fulfill the promise of easing restrictions.

Easing for whom is less clear. For example, if my gender is neither male nor female, will that be recognized? Do I have to describe my gender – does anyone – in terms of a finite set of drop-down-box alternatives? Is the principle of self-determination respected and entrenched in the Bill?

When I think of people I know whose gender changes a couple of times in the course of an afternoon, I’m not really sure how these changes increase their autonomy or recognize their uniqueness. It seems to me they may, in fact, continue to face pressure to conform to a finite set of exclusive gender categories that do not, in fact, represent them, not least because the gender marker is a static designation. It assumes you have a gender, and that it stays the same unless you do something deliberate to change it. Such is not, in fact, the lived experience of gender. That is the problem with gender markers.

So, we are left with the fundamental question: Why do we even have gender markers (given they are so problematic and there are other much more definitive alternatives for establishing identity)? Why, in becoming the fifth province in Canada to ease name change and vital statistics requirements for people who are, essentially, legally recognized as trans, did the province not take the obvious opportunity to scrap the anachronism that is the gender marker? That fundamental question remains unanswered.

In failing to ask the question, another opportunity for Nova Scotia to show genuine leadership – good, solid, sensible government – is squandered. The Liberals did by voluntary amendment only what the courts would have forced them to do, eventually. That’s what started the dominoes of, now, five provinces making these changes – a court case in Ontario following its extension of human rights protection ordered the first such change. Provinces that have followed are, in effect, simply taking pre-emptive action against court challenges which, based on the Ontario precedent, they are likely to lose.

I hate to rain on parades. I hate especially to rain on parades I could be marching in. But I also hate like hell to fall all over myself congratulating a government for doing, belatedly, what has only been the right thing to do all along. It is a little tedious, particularly if what the government ends up doing doesn’t go far enough. And as long as we have to deal with the utter stupidity of official gender markers, whatever the government does, doesn’t go far enough.

The Bill will eventually go to the Law Amendments Committee, where any member of the public can comment on the principle and content of the Bill. The Committee can expect to face the question, why gender markers at all?

An anachronism that works, the Law Amendments Committee is a holdover from pre-Confederation days, now defunct in most other jurisdictions in Canada. After a Bill’s Second Reading – debate of intent and action proposed – and before the final clause-by-clause debate of Third Reading, Nova Scotian legislation is turned over to public comment before the all-party Law Amendments Committee. It remains a vital place where Nova Scotians with an interest in legislation can influence the final form of provincial legislation. It’s a place we can ask, why do we even have gender markers, anyway?