Justice and Public Safety
December 8, 2015
The following is being issued at the request of the Human Rights Commission of Newfoundland and Labrador:
Human Rights Commission Comments on Decision of Chief Adjudicator
On December 3, 2015, Kimberly Horwood, Chief Adjudicator of the Newfoundland and Labrador Human Rights Board of Inquiry, released her decision in S.B. and C.A. v. Her Majesty the Queen in right of Newfoundland and Labrador as represented by the Minister of Service Newfoundland and Labrador. A copy of the decision can be found at: www.justice.gov.nl.ca/hrc/publications/decisions/2015_decision_ca_and_sb.pdf
The complainants in this case, both transgender women born in Newfoundland and Labrador and now residing in another province, wished to change their gender designation on their birth certificates. Each request was denied by the Registrar of Vital Statistics pursuant to section 26 of the Vital Statistics Act which required the complainants to have undergone ï¿½gender reassignment surgery,ï¿½ verified by statutory declaration from a medical practitioner, in order to change their gender markers on their birth certificates.
S.B. and C.A. filed separate complaints with the Human Rights Commission claiming discrimination based on the prohibited ground of gender identity and gender expression pursuant to section 11 of the Human Rights Act. Chief Adjudicator Horwood accepted the Agreed Statement of Facts as presented by the Human Rights Commission and Service NL and made the following order:
- Service NL shall cease requiring transgender persons to have gender reassignment surgery in order to obtain a change in sex designation on their birth certificate;
- Within thirty (30) days of the date of this Order, Service NL will revise the criteria for changing sex designation on a birth certificate, up to the point of undue hardship, so as to remove the discriminatory effect of the current system on transgender persons;
- Within a further thirty (30), Service NL will take reasonable steps to publicize the revised criteria to change sex designation on a birth certificate so that transgender persons are aware of them; and
- Any applications by transgender persons who have already undergone or are in the process of undergoing gender reassignment surgery will be administered in the normal course.
"We welcome this decision by the Board of Inquiry to promote trans individuals' improved access to public services, and thank everyone for their collaborative approach to enhancing services for individuals in Newfoundland and Labrador."
"The commission is available to provide advice to individuals, government departments and agencies, employers, labour organizations, and community groups on implementing policy and program updates to create a more inclusive and respectful workplace, community, and province.ï¿½
- Remzi Cej, Chair of the Newfoundland and Labrador Human Rights Commission
The Provincial Government stated its intent in July 2015 to make a legislative amendment to the Vital Statistics Act during the next sitting of the House of Assembly to address concerns in this regard. The Board of Inquiry order is a public interest remedy which does not set aside or strike down legislation. Rather, the order directs Service NL not to follow the offending legislation, not only with respect to the two complainants in this case, but with respect to those similarly situated.
The Provincial Government department of Service NL oversees Vital Statistics. The department advises that Section 26 of the Vital Statistics Act will remain until amended, however, the provision requiring an individual to undergo gender reassignment surgery before changing their registration of birth will not be followed, in compliance with the Board of Inquiryï¿½s order. In addition, the department advises that it will post information by end of day tomorrow, (Wednesday, December 9) regarding how individuals can change their gender designation on their birth certificates. The information will be posted at: www.servicenl.gov.nl.ca/birth/changing_your_sex_designation/index.html
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Carey Majid, LLB
Human Rights Commission of Newfoundland and Labrador
2015 12 08 4:40 p.m.