A Victory for Non-Binary, Intersex and Trans People Means Changes to the Civil Code of Québec

A Victory for Non-Binary, Intersex and Trans People Means Changes to the Civil Code of Québec

A Victory for Non-Binary, Intersex and Trans People Means Changes to the Civil Code of Québec

By Barbara McClintock, MA, Certified Translator

“All human beings are born free and equal in dignity and rights.”

– Universal Declaration of Human Rights

It is now generally recognized that sex and gender are different concepts and the federal government has been replacing references to sex with gender identity or gender designation in its legislation to reflect this change for some time. There has also been a modernization of related wording in federal laws, such as changing he and his to the singular they and their. It is now the province’s turn. Quebec should take the opportunity to reclaim its position as one of the jurisdictions with the most progressive family legislation – a position it held in 2002 with its legislation for gay civil unions.[1]

Charter challenges to the Civil Code of Québec regarding the designation of sex on the register of civil status

On February 9, in Center for Gender Advocacy v. Attorney General of Quebec, the Quebec Superior Court ordered the Government of Quebec to amend certain articles of the Civil Code of Quebec by December 31, 2021.[2] The plaintiffs are and represent trans, intersex and non-binary people. The principal plaintiff was the student-funded Centre of Gender Advocacy at Concordia University. Trans people, who do not have the same gender as when they were born, and non-binary people, who do not identify as a man or a woman, will now be able to indicate their correct gender identity on official documents and therefore be “legally visible.” Justice Gregory Moore found that the impugned articles of the Civil Code of Québec (CCQ) violate the dignity and equality rights of trans, intersex and non-binary people, e.g., the designation of sex on an act of birth or act of death. The decision recognizes the right of non-binary people to change their designations to something other than male and female.

Justice Moore declared that articles 111, 115 and 116 of the Civil Code of Québec violate the dignity and equality rights of non-binary parents because they oblige them to be identified as a mother or father instead of as a parent. Specifically, the plaintiffs wanted to be identified as parents because one of the plaintiffs complained of being referred to as the father on the birth certificate of their first child and then as the mother on the birth certificate of their second child.[3] On this topic, the judgment reads in part as follows:

[342] DECLARES that article 132 of the Civil Code of Québec must be interpreted and applied to authorize the registrar of civil status to draw up of new acts of civil status for a person whose parent has changed their name or their designation of sex;

[343] DECLARES that article 146 of the Civil Code of Québec, because it requires a designation of sex on certificates of civil status, violates the dignity and equality rights of non-binary people and is invalid and of no force or effect and SUSPENDS this declaration of invalidity until December 31, 2021.

Justice Gregory Moore rejected the plaintiffs’ request to declare a parent’s right to object to their child’s request for a name change unconstitutional. On the other hand, he struck down an article of the CCQ that requires an underage person to submit a letter from a physician, psychiatrist or social worker when applying to change their gender designation.

Why not make other changes to modernize Quebec laws at the same time?

The word handicapé in French may not carry the same stigma as it does in English, but it is considered very offensive[4] in English. Despite this fact, Quebec continues to use the term and even uses in the name of an act, the Act to secure handicapped persons in the exercise of their rights. “Handicapped person” (personne handicapée) is also used in other Quebec laws, including the CCQ. Also note the use of the masculine pronoun “his” in article 1921 CCQ:

  1. Where a handicapped person significantly limited in his mobility occupies a dwelling, whether or not that person is the lessee, the lessor is bound, at the request of the lessee, to identify the dwelling in accordance with the Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration.

1991, c. 64, a. 1921; 2004, c. 31, s. 71; I.N. 2014-05-01.

[emphasis added]

In conclusion, Quebec legislation needs a lot of amendments to catch up with all the changes in other jurisdictions, e.g., changing “he” in the English version of laws to the singular they or simply avoiding it by repeating “the person” to harmonize with federal laws. It is very unfortunate that people have to go to court to force the Quebec government to modernize its legislation.

More information: The following organizations were interveners in the proceedings: Egale Canada Human Rights, the LGBT+ Family Coalition and Gender Creative Kids Canada. Egale Canada is involved in informing public policy, and promoting inclusion, awareness, access to justice and legal advocacy. LGBT+ Family Coalition is a Quebec community rights organization that advocates for the social and legal recognition of sexual and gender-diverse families. Gender Creative Kids Canada – started by a group of Montreal parents in 2012 – got actively involved in ensuring the implementation of Bill 103 to improve the situation of underage trans people in 2016.

[1]. Le Soleil, Le Québec, un havre pour la communauté gaiehttps://www.lesoleil.com/actualite/le-quebec-un-havre-pour-la-communaute-gaie-74e2efe21cda9cd3356e131bd358e911.

[2]. Note: The style of cause contains a spelling mistake in the name of the Centre. CanLii https://www.canlii.org/en/qc/qccs/doc/2021/2021qccs191/2021qccs191.pdf

[3]. Canadian Lawyer https://www.canadianlawyermag.com/practice-areas/litigation/quebec-superior-court-ruling-is-historic-win-for-trans-rights/337449

[4]. USDA Forest Service, Technology and Development, Disabled or handicapped or ??? Which terms should be used? https://www.fs.fed.us/eng/toolbox/acc/acc02.htm#:~:text=It%20is%20also%20important%20to,person%20who%20has%20a%20disability.&text=But%20because%20the%20story%20has,as%20%22handicapped%22%20is%20offensive.



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