If you are arrested, you have the following rights:
- To be placed in a facility that corresponds to your gender identity or expression where there are no overriding health or safety concerns
- To choose the gender of the person who strip searches or frisks you
- To have your correct name and pronouns used in written and oral communications
- To have confidentiality and privacy in relation to your gender identity, and to have that information only shared on a need-to-know basis
The Correctional Service of Canada (CSC) is still updating their policies for Two Spirit, trans, non-binary and gender non-conforming people. More details about future changes can be found here.
Source: CSC Interim Policy Bulletin 584
Citizenship and Migration
When choosing or updating your gender identifier on your Canadian travel documents, you will need to provide supporting documents. This can include proof of citizenship, proof of immigration status, or a previous passport. Your marker can be F, M, or X. More detailed info can be found here.
Gender Marker Changes
If you are seeking citizenship, permanent residence, temporary residence, or are a refugee claimant, you can submit a request form to change your sex or gender identifier on IRCC documents, regardless of what is indicated on your supporting documents. Supporting documents from the issuing authority (i.e. your country of origin) are not required. More information can be found here.
Permanent residents and foreign nationals will need to have their foreign passport or other national authoritative documents changed first in order to then change their name in Canadian records. You will have to provide a linking document to use as evidence of a change of name, and that document will be copied or scanned to keep in your file.
For Canadian citizens who changed their name abroad and reside in Canada, Immigration, Refugees and Citizenship Canada (IRCC) will rely on a document that links the previous name to the new name, such as a marriage certificate or a legal change of name document, and a document issued in Canada that displays your new name. More information can be found here.
Marriage in Canada is defined as the lawful union of two persons to the exclusion of all others, which specifically includes same sex couples.
Divorce is available to any two people married to each other, regardless of gender. Language in the Divorce Act often refers to sex instead of gender, but it does not preclude anyone regardless of gender identity from marrying or divorcing.
Sources: Civil Marriage Act; Divorce Act; S. (J.) v F. (C.), 2005 BCSC 1011, 43 BCLR (4th) 371; M (M.) v H (J.) (2004), 73 OR (3d) 337, 136 ACWS (3d) 319 (Sup Ct).
As of March 2019, the Canadian Armed Forces has issued new directives regarding Two Spirit, trans, non-binary and gender non-conforming personnel. These documents are not publicly available and information is limited, but according to the CBC they state that every member has a right to determine their own gender identity, that they have a reasonable right to accommodation, that a collaborative approach is to be used to develop accommodations, that respect for Two Spirit, trans, non-binary and gender non-conforming peoples’ private and medical life is to be maintained, and that leadership must ensure members are free from harassment and discrimination.
New sexual misconduct policies as of 2020 include “actions or language that devalues people on the basis of gender identity and expression” in the definition of sexual misconduct. It also includes discrimination based on gender identity and expression as factors to consider when officers decide if matters need to be reported to authorities, and gives health care providers responsibility to consider a gender sensitive lens for survivors of sexual misconduct.
Sources: DAOD 9005-1, CBC
You will need to submit different documents to change your gender marker on your Canadian passport depending on your age. The fee for this change is the same as general passport application fees. You will be allowed to change your gender marker even if you have not or do not plan on undergoing any gender affirmation surgery. You can change your gender marker to F, M, or X.
You will not need to provide any other documentation if your previous passport or status document has the X observation sticker, or if your proof of citizenship, proof of immigration status, or previous passport has the same gender identifier as what you want.
If your supporting documents do not show the gender marker you want on your passport, you will have to fill out a form. Adults (16 or older) should fill out this form, and children (15 or under) should fill out this form.
Once this additional form is filled out, follow the regular steps to apply for a passport. For adults this can be found here, and for children this can be found here.
More instructions on changing your gender marker or name on your passport can be found here.
The Protection of Communities and Exploited Persons Act (PCEPA) was introduced on June 4, 2014 and came into force on December 6, 2014. The Act was a reaction to Bedford v Attorney General of Canada, a Supreme Court of Canada case that struck down the old sex worker provisions as unconstitutional because they infringed the Charter right to security of the person.
PCEPA’s main objectives are to reduce the demand for sex work, to protect communities from the harms inherently caused by sex work, and to protect sex workers themselves from the harms inherently caused by sex work. PCEPA attempts to achieve these objectives by criminalizing sex work for buyers of sexual services but not sex workers themselves.
In PCEPA’s preamble, the government of Canada denounced sex work as an inherently dangerous activity that harms both communities and sex workers. Under this view, purchasers and facilitators of sex work necessarily exploit sex workers, and sex workers are exploited victims who require support and assistance.
Reflecting PCEPA’s three main objectives, the Act’s provisions can be divided into three topics: criminalizing the sex work market, protecting sex workers, and criminalizing harms to communities.
Sources: Bedford v Attorney General of Canada, 2013 SCC 72; Protection of Communities and Exploited Persons Act.
1. Criminalizing the Sex Work Market
PCEPA criminalizes the sex work market by making it an offence to do the following: purchase sexual services, receive material benefit from the sex work of others, procure or pimp another person to perform sex work, and advertise the sale of sexual services. These provisions criminalize the practice of sex work and other related activities in the sex work market in order to attempt to reduce demand for sexual services.
Section 286.1 of the Criminal Code makes it an offence to purchase sexual services for consideration or to communicate in any place for that purpose. This offence requires a contract or agreement for a specific sexual service in return for some form of compensation, such as money or gifts. Purchasers of sexual services can face maximum penalties of 5 years imprisonment by indictment, or 18 months by summary conviction, as well as escalating mandatory minimum fines.
Sources: Criminal Code.
2. Receiving Material Benefit from the Sex Work of Others
Section 286.2 of the Criminal Code makes it an offence to receive material benefit from the sexual services of another person. Importantly, sections 286.2(4) and 286.2(5) outline exceptions to this offence, allowing sex workers to provide material benefits to non-exploitive parties. These parties include co-tenants, family members, dependants, certain protective employees such as bodyguards, and certain public firms such as Internet Service Providers. Purchasers of sexual services can face a maximum penalty of 10 years imprisonment, with a mandatory minimum sentence of 2 years.
Sources: Criminal Code.
3. Procuring or Pimping Another Person to Perform Sex Work
Section 286.3 of the Criminal Code makes it an offence to procure or pimp another person to perform sex work for consideration. This section also makes it an offence to facilitate sex work by recruiting, concealing, or harbouring sex workers, as well as to exercise a degree of control, direction, or influence over the movement of sex workers. Purchasers of sexual services can face a maximum penalty of 14 years imprisonment.
Sources: Criminal Code.
4. Advertising the Sale of Sexual Services
Section 286.4 of the Criminal Code makes it an offence to advertise the sale of sexual service. This offence requires knowingly placing these advertisements in any media, such as in person, in print, or online. Advertisers of sexual services can face maximum penalties of 5 years imprisonment by indictment or 18 months by summary conviction.
Sources: Criminal Code.
Protecting Sex Workers
The PCEPA does not explicitly punish sex workers who engage in their own sex work. Section 286.5(1)(a) prevents sex workers from being prosecuted for receiving a material benefit, such as money or gifts, for their own sex work. Section 286.5(1)(b) prevents sex workers from being prosecuted for advertising their own sexual services. Section 286.5(2) prevents sex workers from being prosecuted for aiding or abetting acts under sections 186.1 to 186.4 if it is for their own sexual services.
Sources: Protection of Communities and Exploited Persons Act.
Criminalizing Harms to Communities
PCEPA criminalizes harms to communities by making it an offence to do the following: stop or impede the flow of pedestrian or vehicular traffic for the purpose of purchasing or selling sexual services in public, communicate for the purpose of selling sexual services in certain community locations that are used by children, and own or reside in a “common bawdy-house” for the practice of “acts of indecency.”
Purchasing Sexual Services in Public
Section 213(1)(a) of the Criminal Code makes it an offence to stop or attempt to stop motor vehicles in a public place or in any place open to public view for the purpose of purchasing sexual services. Section 213(1)(b) makes it an offence to impede the flow of pedestrian or vehicular traffic in a public place or in any place open to public view for the purpose of purchasing sexual services. This provision reflects the government’s stance that only the purchasers of sexual services should be punished; sex workers who engage in these activities to sell sexual services will not be punished. Offenders can face fines of up to $5,000 or 6 months imprisonment or both.
Selling Sexual Services in Community Locations
Section 231(1.1) of the Criminal Code makes it an offence to communicate for the purpose of selling sexual services in a school ground, playground, or daycare centre, or in a public place that is next to these community locations. This provision, consequently, directly affects those in the sex work industry. This provision also reflects the government’s stance that sex work is inherently dangerous and exploitive, in that it would be harmful for children to view such activity. However, acknowledging the need to also protect sex workers, the provision allows for sex workers to sell sex work in other public areas. Offenders can face fines of up to $5,000 or 6 months imprisonment or both.
Owning or Residing in a “Common Bawdy-House”
Section 210(1) of the Criminal Code makes it an offence to own or reside in a “common bawdy-house.” Section 197(1) defines a “common bawdy-house” as a place meant for the practice of “acts of indecency.” Under this definition, sex work is not inherently indecent, legally allowing sex workers to keep a house for prostitution.
Sources: Criminal Code; Protection of Communities and Exploited Persons Act.
How PCEPA Affects Current Sex Workers
Sex work is criminalized in Canada through PCEPA, making it an offence to participate in the practice for all parties involved in the transaction except for sex workers themselves. On a policy level, this decision further stigmatizes the practice of sex work by necessarily associating it with illegal activity and exploitation.
Despite exemptions from criminal prosecution, this approach to addressing sex work in Canada may negatively and directly affect the practice of sex work for both sex workers in general and Two Spirit, trans, non-binary and gender non-conforming sex workers in particular.
General Sex Workers
Broadly, the criminalization of sex work will likely negatively affect how Johns and other third parties interact with sex workers. Given the possibility of criminal sanction, these parties may be hesitant to interact with sex workers or be forced to interact with sex workers underground, increasing safety risks.
Purchasing Sexual Services
Johns will likely be driven underground in order to elude police detection. This movement may worsen conditions for sex workers because these underground interactions with clients will likely be in isolated locations where sex workers cannot rely on police for protection. Sex workers may also find it difficult to properly screen potential clients in these locations or when these clients want to rush the screening process to better elude the police.
Receiving a material benefit from sex work
Although PCEPA provides exceptions to the provision that criminalizes receiving a material benefit from sex work, the terms may be enforced improperly due to vagueness and uncertainty of the terms. Some non-exploitive relationships may share some characteristics with those that do, such as the existence of a commercial element. There may be barriers to creating reasonable and professional relationships that enhance safety or provide services due to this uncertainty.
Selling sexual services in community locations
Sex workers cannot “communicate for the purpose of selling sexual services” in or next to school grounds, playgrounds, and day cares, potentially harming sex workers who practice on the street. Not only does this provision further marginalize sex workers by positioning them outside of communities; they may also be driven to underground and isolated locations, where they face increased barriers to safety.
Two Spirit, trans, non-binary and gender non-conforming sex workers
Although there is currently no research on how PCEPA affects Two Spirit, trans, non-binary and gender non-conforming sex workers, research from the pre-Bedford regime may be illustrative. Two Spirit, trans, non-binary and gender non-conforming sex workers faced intersecting challenges due to the stigma associated with both their occupation and their gender identity. That is, these sex workers not only had to contend with the marginalization of being in the sex industry and of being transgender separately, but they also experienced further violence through sex work clients who learned that they were Two Spirit, trans, non-binary or gender non-conforming.
PCEPA’s provisions will likely do little to address these systemic barriers for Two Spirit, trans, non-binary and gender non-conforming sex workers. The provisions explicitly denounce sex work as an inherently dangerous and exploitive activity, and they do not address the particular needs of vulnerable populations who also practice sex work. Consequently, the stigma associated with both practicing sex work and being transgender is not addressed, and will likely allow the experiences from the pre-Bedford regime to persist.
Sources: Protection of Communities and Exploited Persons Act; Bedford v Attorney General, 2013 SCC 72; Chris Bruckert and Frédérique Chabot, “Challenges: Ottawa sex workers speak out”; Ibid at 100.