Manitoba must allow non-binary sex designation on birth certificates: adjudicator

The Manitoba government discriminated against a transgender person when it refused to allow a sex designation that wasn't male or female on a birth certificate, an independent human rights adjudicator has ruled. 

The government must start allowing non-binary designations within 180 days, according to the ruling.

In a decision written Nov. 5, adjudicator Dan Manning ordered the government to pay $50,000 in damages to T.A., a trans pangender person who filed a complaint with the Manitoba Human Rights Commission in 2015.

"I am of the view that the policy of the respondent constitutes systemic direct discrimination," Manning said. 

T.A., who doesn't identify as either male or female and uses the pronoun they, tried to change the sex designation on their birth certificate in 2012 but Manitoba's Vital Statistics Agency denied that request. A publication ban protects T.A.'s identity. 

Recognition of discrimination

Manning awarded $50,000 to be payable to T.A. in 60 days for injury to dignity, feelings and self-respect. 

But Manning ruled against giving T.A. an additional $25,000 for exemplary damages because he was satisfied there was no malice or recklessness on the agency's part. 

"I'm still delving through all the details of the decision but I am very grateful for it and will definitely be celebrating this ruling," T.A., a former Manitoban, said when reached by phone in Ontario Tuesday morning.

"It's important for me in that I have received a recognition of the discrimination that I faced from the Vital Statistics Agency in their refusal to issue me a birth certificate with either no sex designation or a sex designation that is consistent with my gender identity which is pangender, non-binary gender identity."

Manning said in his view, the seriousness of the conduct in this case was on the high end. 

Government refused to acknowledge personhood: adjudicator 

"Gender identity is a part of our concept of selfhood. The [vital statistics] director's practice to not allow non-binary designations of sex designation and only permit male or female designations was effectively the government refusing to acknowledge T.A.'s agency and personhood."

The government had argued that since no Manitoban can get a birth certificate without a sex designation or with a non-binary designation, there was no differential treatment or discrimination.

Manning disagreed and wrote "with respect, this argument confuses the issue to be decided." 

"In my view the respondent discriminated against the complainant by denying them a gender congruent birth certificate. This is a service otherwise offered to people who identify as male or female."

Manning said it didn't matter that T.A. didn't move forward with the application to change their sex designation. T.A. was later able to get a driver's licence issued outside of Manitoba with an X designation.

"The fact that T.A. did not proceed with a hopeless application does not alter the analysis. To put it concretely, a business that posts a sign that says, "No Irish Need Apply" cannot claim there was no discrimination because in fact, no Irish person applied." 

'Fantastic news' for trans and non-binary people

The former Manitoba resident said the decision will have far-reaching implications for other non-binary people in the province who are living without birth certificates that reflect their identity. 

"I'm also very thrilled for all of the other non-binary and transgender individuals in Manitoba who will be able to make use of the new policy once it becomes available."

Trans advocate Charlie Eau, 32, who is also non-binary, said they have been trying to get a non-binary designation for years to no avail.

"This is fantastic news. We are so excited to hear about this outcome and it is going to have a positive impact on so many trans and non-binary lives."

Eau said the change will let them showcase their true identity to the world.

"It means that I will be counted as a regular Manitoban in our population and that my community will be visible and identified for the first time." 

Toronto lawyer Susan Ursel took on T.A.'s case pro bono and had likened the sex of a person listed on a birth certificate to someone's race being listed — something she said most countries phased out long ago. She couldn't immediately be reached for comment Tuesday. 

A government spokesperson said the province has received the adjudicator's decision and will now carefully review it to determine next steps.

Other provinces like Ontario, Newfoundland and Labrador, and the Northwest Territories already have non-binary birth certificates, which allow people to change the sex on the documents to have an X instead of male or female.