Gender expert tells human rights hearing sex markers on birth certificates are harmful

A sex and gender expert told a Manitoba human rights hearing Tuesday the province's requirement to have male or female markers on birth certificates is putting non-binary people at risk.

"If [the marker] was incongruent, that puts that person at risk," Reece Malone testified under oath at the hearing.

"What I mean by risk is that person may live a particular identity that is incongruent with their identification. That might inadvertently out personal health information about who they are."

Malone is the first expert to testify at the adjudication hearing, which is being held to determine if the Manitoba government's requirement to have male or female markers on birth certificates violates the province's human rights code, which protects gender identity.

A former Manitoban known as T.A. is fighting to have the required sex designation taken off birth certificates issued by the province's Vital Statistics Agency.

Markers lead to false assumptions: expert

T.A., who uses the pronouns "they" and "them," is being backed by the Manitoba Human Rights Commission and Toronto lawyer Susan Ursel.

The commission investigated a complaint from T.A. in 2015 and unsuccessfully attempted to mediate a resolution before referring the case to the adjudication panel in 2018.

Malone said that in his professional opinion as a sexologist, the policy not only creates stigma but also reveals unnecessary information.

"If there's an 'F' on a person's birth certificate, I'm going to assume that person has a clitoris, a labia, a vagina. I don't need to know that information. No one needs to know that information. That's contained elsewhere," he said.

Malone, who works as sex therapist, testified there are different schools of thought on sex markers on ID, and that having only male and female boxes is outdated.

"That doesn't adequately reflect what we know in science today — that there are those who aren't M's or F's from a sex-identity point of view."

He said in his opinion, there is no justified reason for having the markers on identification that people need in order to access health care.

"What's problematic about that is that [sex] designation is based upon visual inspection," he said.

"That assumption of what that person's body is may shift and change over time," Malone said in reference to people who are intersex — defined as a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn't fit the typical definitions of "female" or "male."

He said as many as seven in every 1,000 people might be intersex and often those people may not find that out until later in life, because surgery at birth had been hidden from them.

"This isn't uncommon," he said.

Other provinces have non-binary options

T.A., whose identity is protected by a publication ban, showed up to the second day of the hearing wearing a dashiki with a blazer and dress, and black dress shoes. The outfit was in sharp contrast to the suit and tie they wore Monday when the hearing started, and reflects their trans-non-binary identity, which they said Monday they would display during the hearing.

T.A. testified Tuesday they had sent letters to different Manitoba agencies in December 2013 asking to have their identification changed.

The requests to have an X marker, instead of M or F, included one sent to Vital Statistics, which is in charge of birth certificates. Those requests were unsuccessful.

However, when T.A. moved out of province, they were able to get non-binary identification in 2016 and 2017. Several other provinces offer non-binary options on ID.

"It was such a boost to my mood and my sense of confidence and pride and willingness to interact with other people, because I had this affirmation — and for many months afterwards that continued to be the case," an elated T.A. said on the stand Tuesday morning.

"Even now when I think about the conclusion of those cases, I am still so happy and so proud and so amazed that I was able to achieve that result, not only for myself but on behalf of other transgender, non-binary and intersex people."

Birth certificate key to getting other documents

Lawyer Leslie Turner is representing Vital Statistics in the case and spent most of her cross-examination asking T.A. technical questions.

Turner hasn't given the government's arguments for the policy yet, but said Monday in opening remarks she plans to show T.A. has not suffered any discrimination and that getting a birth certificate is a service.

Turner said she would bring in the head of Vital Statistics to testify.

Trans advocate Charlie Eau will also be called to the stand to testify about what life is like as a non-binary person trans person living in Winnipeg with ID that isn't congruent with who they are.

Eau told CBC they have spoken to both Manitoba Public Insurance and Manitoba Health about getting new documents. Both agencies refer their requests to Vital Statistics, which provides the birth certificates needed to change driver's licences and health cards.

"It's distressing to know that when someone looks at my identification … that they're not getting any sort of accurate information about me in terms of what it means to treat me medically," or to properly identify them, Eau said in an interview Tuesday.

"Everything goes back to your birth certificate," they said.

"So we need an option that authentically represents all of the people that hold Manitoba birth certificates, including transgender and non-binary people, including intersex people, including anybody who is finding that their birth certificate is not congruent with other forms of ID or gender identity."

The Human Rights Commission hearing, which is open to the public, is scheduled to resume Wednesday at 9:15 a.m. at 363 Broadway.