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Submission of the Ontario Human Rights Commission
to the Ministry of Government and Consumer Services regarding
storing and sharing name and sex designation change information
May 23, 2016
Introduction
The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide a submission to the Ministry of Government and Consumer Services (MGCS) regarding how it handles information relating to name and sex designation changes.[1]
The OHRC believes that MGCS’ current system for storing and sharing information relating to name and sex designation changes discriminates against trans people in violation of Ontario’s Human Rights Code, insofar as it fails to protect privacy and confidentiality relating to transgender status and transition history. Disclosing information of such a sensitive nature not only harms dignity, but also can expose people to significant barriers, disadvantage, and even health and safety risks.
This submission addresses two main concerns with MGCS’ current system. First, trans people are ‘outed’ in any situation requiring them to provide a certified copy of their birth registration, as this document displays both historical and current name and sex designations. Second, while trans persons are able to opt out of publishing their name changes in The Ontario Gazette to protect confidentiality, any member of the public is nonetheless able to obtain this information from a search of MGCS’ change of name index, or by requesting a change of name certificate.
The OHRC recommends that MGCS take the following steps to ensure that it is handling information about name and sex designation changes in a manner that protects trans people’s right to be free from discrimination under the Code:
Recommendations
- Provide a form of official government documentation for birth registrations that will display only a person’s current name and sex designation, and not disclose if either of these have been changed.
- Protect privacy relating to gender identity and expression-related name and sex designation changes by limiting public access to this information in the change of name index or other published information;
- Implement interim accommodation measures to protect trans people’s privacy regarding name and sex designation changes; and
- Provide members of the trans community and other stakeholders with an opportunity to review and publicly comment on any proposed measures to protect trans people’s privacy regarding name and sex designation changes.
The Ontario Human Rights Commission
The OHRC is a provincial statutory agency responsible for advancing human rights and preventing systemic discrimination in Ontario. The OHRC has a number of powers under the Code, including policy-making, delivering public education, conducting inquiries, initiating applications to the Human Rights Tribunal of Ontario (HRTO), and intervening in human rights cases. The OHRC has the authority to monitor and report on anything related to the state of human rights in Ontario.[2]
The OHRC has been involved in various efforts to address ways that Ontario’s system for official name and sex designation changes discriminates against trans persons. In 2006, following advice from the OHRC, Ontario’s Change of Name Act was amended to provide trans people with the option of not having name changes published in The Ontario Gazette.[3] The OHRC also intervened in XY v. Ontario, an HRTO case that led to the removal of the requirement for people to complete sex reassignment surgery in order to change the sex designation on their birth certificates.[4] In addition to participating in the consultations following the HRTO’s 2012 XY decision, the OHRC also urged the government to allow the sex designation to be changed on the birth registrations of minors,[5] which became possible in December 2014.[6]
Discrimination and Ontario's Human Rights Code
Ontario’s Human Rights Code is a provincial law that requires the government to provide services without discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.[7]
The Code applies to all of MGCS’ policies, procedures and practices. The Code is also quasi-constitutional, and has primacy over other legislation, except when that legislation explicitly states that it applies despite the Code. This means that if there are provisions in the Vital Statistics Act or Change of Name Act, or their related regulations, that violate the Code, then the Code prevails.
Discrimination on the basis of gender identity or expression occurs when these characteristics are a factor in a person experiencing adverse treatment or impact – whether intentional or not. Direct discrimination involves situations where someone is treated negatively because of their gender identity or expression. Adverse effect or constructive discrimination occurs when all people are treated the same way – often because of practices, policies, rules or standards that appear to be neutral – but the treatment has a negative effect on persons with certain Code characteristics.
There may be situations where it is possible for a service provider to establish that a practice or requirement that discriminates against trans persons does not violate the Code because of being “reasonable and bona fide”. However, in order to do this, the service provider must be able to show that the needs of trans persons cannot be accommodated without incurring undue hardship.[8]
Human rights concerns with the current system for storing and sharing name and sex designation change information
This submission specifically addresses two areas where MGCS’ practices adversely affect trans people, in violation of the Code:
a)Name and sex designation changes on birth registrations; and
b)Public access to the change of name index and certificates.
In both areas, information about name and sex designation changes is disclosed in a manner that can ‘out’ people as trans, reveal information about their transition history, and expose them to further discrimination and harassment.
a) Name and sex designation information on birth registrations
People born in Ontario can obtain two types of official government documents providing information about their birth circumstances: a short-form birth certificate (also known as a “wallet birth certificate”) and a certified copy of their birth registration, which includes additional information.
A certified copy of a birth registration is currently the only official document available in Ontario that provides information about parentage, including the identity, place of birth and citizenship of an individual’s parents. People may be asked to provide a certified copy of birth registration in situations relating to citizenship applications, estate matters, family travel/passport requirements, etc.
Method for recording name and sex designation changes
According to the Vital Statistics Act, when a person in Ontario applies for a name or sex designation change, a notation reflecting the change is made on that individual’s birth registration.[9] The person’s previous name or sex designation information is not deleted or removed from the birth registration, but retained for the purpose of maintaining a historical record.
Notations are made in a way that allows a person’s previous name and sex designation to still be seen.[10] When a change is made, the new information is entered, and parentheses are placed around the person’s previous name or sex designation.
The birth registration also includes a “List of Annotations” recording the dates that name and sex designation changes were made.
Information displayed on official documents after name and sex designation changes are made
After name and sex designation changes have been made, short form birth certificates are issued showing only a person’s current name and sex designation.[11]
In contrast, certified copies of birth registrations display both a person’s former and current name and sex designations.
This system negatively affects those who have changed their name or sex designation in relation to their gender identity or expression
First, having to present a certified copy of a birth registration has a disparate effect on trans people, because they are ‘outed’ by the name and sex designation change information that appears on the document. In contrast, when a name is changed because of a reason like marriage, having that name change information appear on the document does not result in harm in the same way.
Second, the notations of name and sex designation changes can also reveal private information about a person’s medical and transition history. Prior to the HRTO’s 2012 XY v. Ontario decision, only those who had undergone sex-reassignment surgery were eligible for sex designation changes. This means that if a person’s birth registration shows that a sex designation change was made prior to 2012, it reveals that the person has undergone sex-reassignment surgery.
Third, the method of recording changes – entering new information and placing parentheses around the old information – may be unclear to downstream services users. There is no explanatory note indicating that bracketed information is historical, and the presence of multiple names and sex designations on the document could be confusing. This could ultimately result in trans people facing additional scrutiny, not having their documentation accepted, or being denied certain services.
Finally, disclosing information that reveals trans status and history can expose trans people, one of the most disadvantaged groups in our society, to further discrimination, harassment, disadvantage, and even health and safety risks.[12] For example, trans people could be asked invasive questions about their gender identity or medical history, have people refuse to respect their self-identified gender identity, or experience heightened fear and anxiety if ‘outed’ in a social climate that may be hostile.
b) Access to the change of name index and certificates
The Office of the Registrar General maintains a change of name index for all name changes made in Ontario.[13] Currently, as set out in the Change of Name Act, any member of the public, upon payment of a fee, can apply to have the change of name index searched, and receive information about another person’s former name.[14] Similarly, any person, upon payment of a fee, can obtain another person’s change of name certificate, which sets current and former names, the date of the registration, and the registration number.[15]
As mentioned above, disclosing information about a previous name can ‘out’ a trans person, and expose them to further discrimination or harassment.
In 2006, following advice from the OHRC and the Information and Privacy Commission of Ontario, MGCS took the important step of making legislative changes to the Change of Name Act to allow trans applicants to opt out of having their change of name information published publicly in The Ontario Gazette.[16] The legislative changes, however, did not address another concern raised at that time: the fact that there is public access to trans people’s name change information through searches of the change of name index, or requests for change of name certificates.
The OHRC also notes that MGCS may be providing incomplete information about the confidentiality of name changes. A Service Ontario posting titled “Will my name change information be available to the public?” refers only to the publication of name changes in The Ontario Gazette, and does not disclose that the change of name index and change of name certificates can be publicly accessed.[17]
Addressing Code concerns with storing and sharing name and sex designation change information
As described above, MGCS’ current scheme for handling information relating to name and sex designation changes negatively affects trans people: it can ‘out’ them as trans, reveal information about their transition and medical history, and expose them to further discrimination and harassment.
In order to meet its legal obligations under the Code, MGCS must ensure that its system for recording and sharing information about name and sex designation changes does not discriminate on the basis of gender identity and expression. As set out in the OHRC’s Policy on preventing discrimination because of gender identity and gender expression, this must include protecting any information indicating a person’s trans status, whether directly or indirectly, as confidential.[18]
In order to address the discriminatory affect of the current system on trans people, the OHRC recommends that MGCS do the following:
1) Provide a form of official government documentation for birth registrations that will display only a person’s current name and sex designation, and not disclose if either of these have been changed.
MGCS has indicated that it is considering developing a polymer long-form birth certificate which, unlike current certified copies of birth registrations, would only display an individual’s current name and sex designation. While not available in Ontario, such long form birth certificates are issued in other Canadian jurisdictions.[19] In order to ensure that such a long-form birth certificate would adequately meet the need currently served by certified copies of birth registrations, it may be helpful for MGCS to survey individuals and downstream services to ascertain the myriad of reasons that birth registrations are requested.
Also, as the OHRC has previously recommended, serious consideration should be given to removing the sex designation field on birth certificates altogether.[20] If deemed bona fide and reasonable to reflect sex designations on birth certificates, however, MGCS should consider including this information in coded form or allowing the sex designation field to remain unspecified. Such options have been implemented in other countries. For example, in Australia, individuals are given the option of selecting “X (Indeterminate/Intersex/Unspecified)” for sex or gender information on any government record.[21]
2) Protect privacy relating to gender identity and expression-related name and sex designation changes by limiting public access to this information in the change of name index or other published information;
Although MGCS has taken the important step of allowing trans people to opt out of having their name changes published in The Ontario Gazette, name and sex designation information is still visible on birth registrations, and change of name information is publicly accessible through searches of the change of name index and requests for change of name certificates.
One option for addressing the ongoing privacy concerns would be for MGCS to seal records of gender identity and expression-related name and sex designation changes. MGCS has already implemented systems for sealing records to protect confidentiality in certain circumstances. In situations relating to witness protection, s. 8(2) of the Change of Name Act permits name changes to be sealed if the Attorney General or designate certifies, on a case by case basis, that the name change is intended to prevent significant harm.[22] Similarly, Section 28 of the Vital Statistics Act provides that when a person is adopted, the person’s original birth registration is withdrawn and kept in a separate, sealed file, and replaced with a new birth registration.[23]
Another option could involve conducting assessments as to the reasons for change of name information requests that would reveal gender identity or expression-related name changes. Again, a similar system is already in place with respect to other types of information: the Vital Statistics Act requires that any person requesting information about births, deaths and marriages first be able to satisfy the Registrar General as to the reason for the request.[24]
The OHRC acknowledges that the Registrar General may have legitimate objectives relating to how it records and releases vital events data, including a responsibility to provide such information to some parties in situations relating to debt, child support, or legal or criminal proceedings. However, MGCS must be able to clearly identify its policy objectives, and demonstrate that its requirements are reasonable and bona fide and that it cannot change them to protect trans people’s privacy without incurring undue hardship. In light of the fact that MGCS has been able to meet its objectives – yet still maintain privacy – in situations involving witness protection and adoption, or access to other types of vital event data relating to births, deaths and marriages, it is difficult to see how it would be able to demonstrate that doing the same to protect trans people’s privacy would result in undue hardship.
3) Implement interim accommodation measures to protect trans persons’ privacy and confidentiality regarding name and sex designation changes.
As described above, many of the concerns raised in this submission relate to the discriminatory effect of provisions in the Change of Name Act and Vital Statistics Act on trans people. While addressing the discriminatory requirements in the legislation directly is the most systemic and appropriate response, the OHRC recognizes that the process for such changes may take time. Thus, while legislative changes should ultimately take place, MGCS should ensure that interim accommodation measures are implemented in the meantime – and in a timely fashion.
4) Provide members of the trans community and other stakeholders with an opportunity to review and publicly comment on any proposed measures to protect confidentiality regarding gender identity and expression-related name and sex designation changes.
MGCS has stated that it is currently in the process of reviewing various options for how it can better protect trans people’s privacy and confidentiality. In order to ensure that any options MGCS ultimately pursues are as responsive as possible to trans people’s needs, any proposed changes should be provided to trans community members and stakeholder groups for review and comment.
[1] This consultation occurred as part of the process set out in K.M v. Ontario (Ministry of Government and Consumer Services), 2015 HRTO 1603. The applicant, K.M., represented by the Human Rights Legal Support Centre, has alleged that the disclosure of historical name and sex designation information on certified copies of birth registrations discriminates on the basis of gender identity and expression.
[2] Human Rights Code, R.S.O. 1990, c. 19, s. 29.
[3] Bill 152, An Act to modernize various Acts administered by or affecting the Ministry of Government Services, 2nd Sess., 38th Leg., Ontario, 2006 (assented to 20 December 2006).
[4] XY v. Ontario (Government and Consumer Services), 2012 HRTO 726.
[5] Ontario Human Rights Commission, “OHRC submission regarding MGS Consultation: Change of Sex Designation on a Birth Registration of a Minor” (22 August 2014), online: http://www.ohrc.on.ca/en/ohrc-submission-regarding-mgs-consultation-change-sex-designation-birth-registration-minor#_edn22
[6] Ontario Human Rights Commission, “OHRC welcomes new procedures for changing sex designation on birth registration for minors” (15 December 2014), online: http://www.ohrc.on.ca/en/news_centre/ohrc-welcomes-new-procedures-changing-sex-designation-birth-registration-minors
[7] Human Rights Code, supra note 2 at s. 1.
[8] Ibid. at s. 11; Ontario Human Rights Commission, Policy on preventing discrimination because of gender identity and gender expression, at p. 27, online: http://www.ohrc.on.ca/sites/default/files/Policy%20on%20preventing%20discrimination%20because%20of%20gender%20identity%20and%20gender%20expression.pdf [“Gender Identity Policy”]
[9] Vital Statistics Act, R.S.O. 1990, c. V.4 at ss. 31(1) and 36(4).
[10] XY v. Ontario, supra note 4 at para. 36.
[11] Vital Statistics Act, supra note 9 at ss. 31(3) and 36(6).
[12] Ontario Human Rights Commission, Gender Identity Policy, supra note 8.
[13] Change of Name Act, R.S.O. 1990, c. 7 at s. 8(1)(b).
[14] Vital Statistics Act, supra note 9 at s. 48 (1). While searches for information relating to other circumstances such as births, deaths, marriages require the person requesting the search to satisfy the Registrar General as to reason for the request, s. 48(2) specifically exempts persons applying for a search of the change of name index from having to satisfy the Registrar General as to the reasons for the search.
[15] Ibid at. ss. 44(4) and 43(4).
[16] Bill 152, supra note 3.
[17] Service Ontario, “Will my name change information be available to the public” (10 March 2015), online: https://www.ontario.ca/faq/will-my-name-change-information-be-available-public
[18] Ontario Human Rights Commission, Gender Identity Policy, supra note 8 at p. 58.
[19]British Columbia, “Birth Certificates”, online: http://www2.gov.bc.ca/gov/content/life-events/births-adoptions/births/birth-certificates; Service Alberta, “Birth Certificates and Documents”, online: http://www.servicealberta.ca/birth-certificates.cfm; Manitoba, Vital Statistics Agency, “Identity Certificates”, online: http://vitalstats.gov.mb.ca/certificates.html; Newfoundland Labrador, Service NL, “Application for Birth Certificate”, online: http://www.servicenl.gov.nl.ca/birth/birth_certificate/application_for_birth_certificate.pdf; New Brunswick, Service New Brunswick, “Application for a Birth Certificate”, online: https://www.pxw1.snb.ca/snb7001/e/1000/CSS-FOL-35-5246e.pdf.
[20] Ontario Human Rights Commission, “OHRC submission regarding MGS Consultation: Change of Sex Designation on a Birth Registration of a Minor”, supra note 5; Ontario Human Rights Commission, “Re: Consultation document – revised criteria for change of sex designation on an Ontario birth registration” (25 July 2012), online: http://www.ohrc.on.ca/en/re-consultation-document-%E2%80%93-revised-criteria-change-sex-designation-ontario-birth-registration. Human rights claims have also been filed in several Canadian provinces challenging the inclusion of sex/gender fields on birth certificates. See: James Armstrong, “B.C. group wants gender removed from birth certificates in Canada”, Global News (27 May 2015), online: http://globalnews.ca/news/2020374/b-c-group-wants-gender-removed-from-birth-certificates-in-canada/ and Chris Purdy, “Does gender no longer work on birth certificates?”, Global News (6 April 2014), online: http://globalnews.ca/news/1253902/does-male-or-female-no-longer-work-on-birth-certificates/
[21] Australian Government, “Australian Government Guidelines on the Recognition of Sex and Gender” (July 2013; updated November 2015), online: https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.PDF
[22] Change of Name Act, supra note 13; Ontario Ministry of the Attorney General, “Submissions to the Senate Standing Committee on Legal and Constitutional Affairs Regarding Bill C-51, An Act to Amend the Witness Protection Program Act And to Make a Consequential Amendment to Another Act” (13 June 2013), online: http://www.parl.gc.ca/content/sen/committee/411/LCJC/41apa-e.htm
[23] Vital Statistics Act, supra note 9 at s. 28(2).
[24] Ibid. at s. 48. Section 48(2) specifically exempts persons applying for a search of the change of name index from having to satisfy the Registrar General as to the reasons for the search.