Does Gender Identity/Expression impact the option for Trans persons to get married/divorced?
Following the passage of the federal Civil Marriage Act, marriage in Canada is defined as the lawful union of two persons to the exclusion of all others (s 2), and a marriage is not “void or voidable by reason only that the spouses are of the same sex” (s 4). Divorce is available to two persons who are married to each other, regardless of their sex. The Divorce Act was changed following two court rulings, one in British Columbia (S.(J.) v F.(C.)) and one in Ontario (M (M.) v H (J.)), which found that the Divorce Act’s definition of “spouse” (which at the time defined spouse as “either of a man or a woman who are married to each other”) was unconstitutional. Though both statute and case law often discuss the sex (as opposed to gender identity) of the applicants seeking marriage or divorce, the language of statute referring to “persons” presumably does not preclude any two people, regardless of their gender identity, from seeking to marry or divorce.
Does Gender Identity/Expression Impact Custody Proceedings?
When determining custody, the main concern of the courts is to decide what is in the child’s best interests. Arbitration also exists for custody settlement, where arbitrators are likewise bound by Canadian family law and to decide always in the best interests of the child. Courts have considered gender identity in custody proceedings. Courts have affirmed that “transsexuality in itself” would not be considered a negative factor in custody determination (Forrester v Salida), and “gender dysphoria is not relevant to the issue of custody” (Boyce v Boyce). Instead, a parent making an application for custody must show their willingness and ability to provide a stable, loving home, regardless of their gender identity (s 24(2) of Children’s Act). Typically, a court would be required to consider the bond between the child and each parent (and their respective parenting abilities), in addition to any biological or legal connection between a parent and child.
Sources: Children’s Law Reform Act; CLEO – “Separation and Divorce”; Forrester v Salida,  WDFL 714 at para 19, 99 ACWS (3d) 99 (Ont Ct J); Boyce v Boyce, 131 ACWS (3d) 272 at para 26,  OJ No 2251 (Ont Sup Ct); Joanna Radbord, “Same-Sex Parents and the Law” (2013) 33 Windsor Rev Legal & Soc Issues 1 at 14.
Assisted Reproduction: Statutory Regime
In 2004, the Federal government passed the Assisted Human Reproduction Act. The validity of this legislation was later upheld in a contentious split decision from the Supreme Court. The goal of the act is to prevent commodification of assisted human reproduction technologies, and in doing so regulates activities such as surrogacy and the sale of sperm and eggs. Part of this act explicitly requires that persons seeking to undergo assisted reproduction procedures cannot be discriminated against, including on the basis of their sexual orientation or marital status. This section has not received any additional judicial consideration, so at this point it is unclear whether this specific non-discrimination clause would cover gender identity and gender expression, which is covered by the Ontario Human Rights Code but is not listed as a prohibited ground of discrimination by the Canadian Human Rights Act. For a uterus-possessing person seeking sperm, they can do so through a sperm bank or through a known donor. A sperm donor cannot donate sperm into the regulated supply without compliance with regulations and permission from the federal Health department, and these regulations prohibit “men over the age of 40” and “men who have had sex with another man, even once, since 1977” (though this can be overridden through seeking Ministerial permission only in cases of known donors). Given the prohibitions on insemination practices in non-regulated environments, commentators have pointed out that the prohibition on self-insemination threatens known donor and hared parenting arrangements, more common in non-traditional relationships.
In order for a trans person to donate sperm to a surrogate, they are limited due to the above restrictions on sperm donation and they must find a surrogate who will carry the child for free and be able to reimburse for pregnancy-related expenses, though “compassionate” (uncompensated) surrogacy arrangements are possible.
Academics have noted that though the Assisted Human Reproduction Act is neutral in wording, it is in effect discriminatory against queer and trans persons given the heavier reliance of these groups on assisted reproduction for making a baby, coupled with the heavy regulation of those activities based on a gender binary model. Indeed, even if the “problematic provisions are not regularly enforced, it is still problematic from an equality standpoint to have laws on the books that discriminate against a particular group.”
Doctors themselves can face penalties for aiding in surrogacy arrangements if those arrangements are not in compliance with the AHR Act. Even in compassionate surrogacy arrangements, doctors cannot be assured that their patients will abide by non-compensation provisions of the Act, and so could be reticent to participate fully in non-traditional forms of donation/surrogacy more common among trans parents. The complexity of the Act and its regulations, the language that often refers to biological “men” and “women”, as well as the noted failings of the AHR Act to respond to non-traditional family arrangements in a comprehensive way, means that there still exists significant barriers to accessing assisted reproduction for trans parents.
Sources: Assisted Human Reproduction Act, SC 2004, c 2; Reference re Assisted Human Reproduction Act, 2010 SCC 61,  3 S.C.R. 457; Ontario Human Rights Code, RSO 1990, c H.19; Canadian Human Rights Act, RSC 1985, c H-6, s 3; Processing and Distribution of Semen for Assisted Conception Regulations, SOR/96-254, ss 19-20; Health Canada Directive: Technical Requirements for Therapeutic Donor Insemination (Ottawa: Health Canada, 2000), s 2.1(c)(i); Angela Cameron, “Regulating the Queer Family: The Assisted Human Reproduction Act” (2008) 24 Can J Fam L 101 at 114 [Cameron]; Lisa Feldstein, “Access to Assisted Contraception: A Call for Legislative Reform in Light of the Modern Family” (2010) 26 Can J Fam L 201.
There are several different methods for persons to adopt in Ontario, depending on the relationship between the adopting parent and the child.
- Declaration of Parentage: Though distinct from adoption for a number of reasons, declaration of parentage is meant to recognize the intended parent(s) for children born through surrogacy. There is precedent in Ontario that allows for a sole parent to be recognized when the child is born through surrogacy, for the recognition of more than two parents, and for two people of the same sex to be recognized.
- Second-Parent Adoption: Second-parent adoption is the adoption of a child by the spouse of the child’s already legally recognized parent. The Ontario Family Law Act defines spouse as two persons who are married to each other, unmarried but have lived together for three years or more, or unmarried but have lived together while in a relationship of some permanence (if they are the natural or adoptive parents of the child). Second-parents adoptions are typically permitted where all parties are in agreement and it is in the best interests of the child. Independent legal advice and consent are required in order to complete the adoption.
- Public, Private or International Adoption: If a person wishes to adopt a child that they have no prior connection to, they can pursue one of three avenues to adopt a child:
- Public: Performed through Children Aid Societies, children available for public adoption have been placed there through their birth parents making an adoption plan or a Court has ordered permanent removal from their birth parents. As a public service, it is likely that provisions of the Ontario Human Rights Code apply, ensuring that gender identity and gender expression would constitute protected grounds in adoption. Adoption has been held to be covered as a “service” in other provincial human rights codes. Potential adopting parents can seek approval through a two step process of homestudy and parent training.
- Private: Parent(s) seeking to adopt can also seek adoption through a ministry-approved practitioner, licensed agency, or licensed individual. Following the same two-step process of homestudy and parent training, birth parents of prospective children will send a proposal through the licensee.
- International: Using a ministry-licensed adoption practitioner and international adoption agency, parent(s) can also seek to adopt internationally. Following the same two-step process of homestudy and parent training, an application is sent to the country that is the source of the adoption. The decision to approve an application and issue a proposal rests with the authorities in that country. Thus, Canadian and Ontario law protecting individuals from discrimination on the basis of gender identity and gender expression is not enforceable on those decisions.
Adoption for trans persons can be further complicated in Ontario by a discrepancy between the Children’s Law Reform Act and the Vital Statistics Act. This discrepancy means that parents who give birth are distinguished from persons who become parents through other means, as the language used to protect paternal rights excludes lesbian couples and trans men who give birth. A Charter application has been filed in the Ontario Superior Court challenging the constitutionality of this discrepancy. The application will be moot if Bill 137, presently before at the committee stage having passed second reading, gains assent from the Ontario Legislature.
Sources: Ontario Human Rights Code, RSO 1990, c H.19; A. (A.) v B. (B.), 2007 ONCA 2 at para 14, 83 OR (3d) 351; D. (K.G.) v P. (C.A.),  OJ No 3508, 2004 CarswellOnt 8819 (Sup Ct); M. (A.W.) v S. (T.N.), 2014 ONSC 5420, 247 ACWS (3d) 589; Family Law Act, RSO 1990, c F.3, s 24; LGBTQ Parenting Network “Second Parent Adoption in Ontario” (June 19, 2015); Ministry of Children and Youth Services “I’m Thinking About Adopting – Types of Adoption”; A. (A.) v New Brunswick (Human Rights Commission),  NBHRBID No 4 at para 29, 2004 CarswellNB 395 (NB Labour & Employment Bd); Ashley Csanady, “Ten years later, Ontario heading back to court to defend law LGBT advocates say is discriminatory” National Post (April 11, 2016); Cy and Ruby’s Act (Parental Recognition), 1st Sess, 41st Parl (introduced 3 Nov 2015).
Abusive Intimate Relationships
Partner abuse or spousal abuse can involve physical, sexual, or emotional abuse committed by:
- Spouse or ex-spouse
- Current or former common-law partner
- Current or former girlfriend or boyfriend
- Current or former person in a dating relationship
In an emergency situation, it is recommended by the RCMP that a person suffering from partner abuse should call the police and possibly seek medical attention. In a crisis situation, a person suffering partner abuse is recommended to dial a crisis line or counseling agency, or to seek assistance from a domestic violence shelter, a community health group, or a family physician.
Despite the recommendation of the RCMP to access medical and/or policing services, as well as their legal protection in accessing those services, trans persons continue to experience high levels of discrimination and adverse treatment from both medical professionals and police services. This continues despite prohibition of discrimination on the grounds of gender identity and gender expression in the provision of services. Though “services” is not defined in the Code, the term has typically been given broad and liberal interpretation, in accordance with the principle that human rights statutes should be given broad and purposive interpretation with a view towards protecting rights. There has been judicial consideration indicating that services connected with fleeing an abusive relationship, such as policing and provision of health care, are covered by human rights legislation. When there are eligibility criteria for the public to access a service, those criteria are likewise subject to human rights scrutiny and must conform to principles of non-discrimination.
Sources: Community Legal Education Ontario “Abuse and Family Violence – Partner Abuse” Your Legal Rights; Royal Canadian Mounted Police “Intimate Partner Violence and Abuse – It can be stopped”; Ontario Human Rights Code, RSO 1990, c H.19; Greta Bauer and Ayden Scheim, “Transgender People in Ontario, Canada: Statistics from the Trans PULSE Project to Inform Human Rights Policy” (London, Ontario: 1 June 2015); A. v B., 2002 SCC 66 at para 44,  3 SCR 403; Canadian National Railway v Canada (Human Rights Commission),  1 SCR 1114 at para 24, 40 DLR (4th) 193; Gomez v Edmonton (City) (1982), 3 CHRR D/882; Kahsai v Saskatoon Regional Health Authority (2005), 55 CHRR D/192, 2005 CarswellSask 960; Berg v University of British Columbia,  2 SCR 353 at para 70, 102 DLR (4th) 665.
Public Decency Grounds as a Barrier
It is possible a trans person will face statutory barriers in accessing some services, in particular shelters for domestic violence. Pursuant to s. 20(1) of the Human Rights Code, a person’s rights are held not to be infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency. Thus, if a person’s gender identity or expression is perceived to be in conflict with their biological sex, they may not be able to access some sex-specific shelters, depending on the policy of that shelter. For example, a pre-operative trans woman may be denied access to a women-only shelter on the basis that the biological sex of the pre-operative trans woman is still male.
This section has received little judicial consideration in Ontario; it was referenced, but not considered, in only two cases. One case dealt with a Mayor’s refusal to issue proclamation to gay rights organization, and the other case was an employment issue regarding staffing of a single-sex bathroom in a casino. Neither case provides useful clarification for what might constitute public decency.
Other jurisdictions with similar provisions that allow for discrimination for the sake of the maintenance of public decency have received judicial consideration. The analogous provision of the British Columbia Human Rights Code was subject to review in the BC Human Rights Tribunal case Sheridan v Sanctuary Investments Ltd. In that case, a pre-operative trans woman was repeatedly refused use of the women’s washroom at a bar. The Tribunal held at para 103 that “transsexuals in transition who are living as members of the desired sex should be considered to be members of that sex for the purposes of human rights legislation”, and thus there rises a duty to accommodate trans persons in general to the point of undue hardship. How that may interact with the maintenance of public decency, however, was unanswered because the respondent did not lead any evidence to establish interfering with maintenance of public decency.
Other cases have noted that “public decency” is an ill-defined concept, but is understood to be engaged when there are “others of a different gender in varying states of undress or while…individuals were engaged in private activities such as using the washroom. In these cases, it was appropriate to consider the defence of public decency.” In Saskatchewan, when someone relies on the objective of promoting the inherent dignity and autonomy of the individual, the justification will be met if the exemption sought promotes public decency and privacy.
Federally, the Canadian Human Rights Tribunal in Kavanagh v Canada (Attorney-General) addressed the accommodation of a pre-operative trans woman in the federal corrections system. In that instance, the Tribunal found that the holding from Sheridan ought to be distinguished due to the close living conditions for inmates, as well the vulnerability of the female inmate population. For that reason, the Tribunal found it was not possible to house pre-operative male to female trans persons in women’s prisons.
No case law has been found to answer this question definitively in the context of shelters. However, based on Kavanagh, it is likely a court would find that given the close living quarters and vulnerability of resident populations in shelters, public decency grounds could be used to deny a person access to a sex-specific shelter that matches their gender identity.
Sources: Ontario Human Rights Code, RSO 1990, c H.19; Oliver v Hamilton (City) (1995), 24 CHRR D/298, 26 MPLR (2d) 278 (Ont Bd Inq); Great Blue Heron Charity Casino v Ontario (Human Rights Commission) (2008), 299 DLR (4th) 548, 169 ACWS (3d) 6 (Ont Sup Ct); RSBC 1996, c 210, s 8(2)(a); Sheridan v Sanctuary Investments Ltd,  BCHRTD No 43, 33 CHRR D/467; Stopps v Just Ladies Fitness (Metrotown) Ltd, 2006 BCHRT 557 at para 152,  BCWLD 2320; North Central Health District Board v SEIU, Local 333 (1997), 151 Sask R 264 at para 43, 25 CCEL (2d) 273 (QB); Kavanagh v Canada (Attorney-General), 41 CHRR D/119 at para 160, 2001 CanLII 8496 online (CHRT).