In a recent decision, T.A. v Manitoba (Justice), 2019 MBHR 12 (CanLII), the Manitoba Human Rights Board of Adjudication (the “Board”) took a major step by ordering the Government of Manitoba to revise the criteria for changing sex designation to include recognition of non-binary sex designations on Manitoba birth certificates. This was the first adjudication in Manitoba on gender identity since its inclusion in the Manitoba Human Rights Code (the “Code”) in 2012.

The case involved a complaint of discrimination against the Government of Manitoba, the Vital Statistics Agency, in the provision of a service based on the complainant’s gender identity and sex. The facts, which were uncontested, can be summarized briefly. In December 2013, the complainant, who was transgender and identified as pangender, submitted a request to the government to provide them with a birth certificate that was congruent with their gender identity. The request was supported by a letter from their psychologist confirming her opinion that the complainant’s gender identity did not accord with the sex designation on the birth certificate. The request therefore was that the birth registration be changed to “X”. The purpose of T.A.’s request was so that they could use the birth certificate as a foundation document to pursue changes in sex designations for their other identity documents, for example, their passport. In January 2014, the government’s response was that the only available sex designation was either male or female. T.A. was informed that there was no other available sex designation and, according to the laws of Manitoba, sex designations have to be displayed on all Manitoba birth certificates. The Complainant filed a complaint of discrimination.

In advancing its case, the government raised a few points. Among them were:

1. The Vital Statistics Agency shares information with other organizations, including Statistics Canada, which require data concerning sex to conduct various studies relating to population trends.

2. According to a document entitled: The Principles and Recommendations for a Vital Statistics System, sex refers to biological characteristics and is needed to describe, among other things, a newborn child. It stipulated that the data collected should be characterized as male or female.

A witness for the government further acknowledged that there is in fact a formal process, under the Manitoba Vital Statistics Act (VSA)¹ , that allows a person born in Manitoba to change their sex designation. However, in that process, an applicant can only change their designation to either male or female.

The process and policy in Manitoba was such that an applicant could not be issued a birth certificate with “X” as the sex designation, nor could the applicant receive a birth certificate with no sex designation at all, as the laws of Manitoba mandated that the sex of an individual be displayed on all birth certificates. ²

The case brought to the fore the historical and traditional understanding of the concepts of “sex” and “gender” and how that understanding permeates the practice and policies in systems and institutions. There is no question that gender identity has evolved, hence its inclusion in the Code as a protected ground. However, while it has been included as a protected ground, its inclusion arguably was not effective in furthering the discussion or understanding of the fast-evolving concept because it was left undefined. The Board in this case therefore took the opportunity to discuss the meaning of gender identity in the context of the Code.

According to the Board, sex and gender identity, though distinct, are so connected that at times they cannot be considered separately and the Board determined this case to be such an instance. In its discussion, the Board reiterated what has already been generally accepted, that gender identity and gender expression are new concepts and the unwillingness of society to accept them has resulted in trans and non-binary persons historically being subject to discrimination.

In making its contribution to the societal discussion, the Board confirmed that gender identity as a protected ground under the Code is intended to protect people of all genders, including non-binary, pangender, or gender diverse individuals from discrimination.

The Board therefore found that the government’s practice of only recognizing male or female designations constituted systemic direct discrimination for which there was no justification. The Board interpreted the practice as essentially saying “non-binary individuals need not apply for a birth certificate” because obtaining one which aligned with their gender identity was impossible.

Given its findings, the Board rendered a decision that, in my opinion, was aimed at achieving or at least beginning the process of not only systemic change but also a change in society’s mindset towards gender identity. The Board ordered that:

1. The government was to revise the criteria for changing sex designation to include recognition of non-binary sex designations and they were to do so within 180 days;

2. Within a further 30 days, the government was required to take reasonable steps to publicize the revised criteria; and

3. The government was to develop an interpretation guide or policy to aid their staff in understanding the new policy or interpretation of the VSA allowing the display of non-binary designations on birth certificates.

In addition to the above, the government was required to pay up $50,000 in damages to the complainant for injury to their dignity, feelings and self-respect. The decision was rendered on November 4, 2019, so the government is still in the process of transition. I anticipate that the government will have to take some time to consider the Board’s decision and the wider impact that it will likely have, once implemented. It will be interesting to see how the changes unfold.

The effects of this decision extend beyond the government of Manitoba and acts as a call on the society at large to adjust its thinking. Organizations and employers will now, if they were not already doing so, have to assess their internal processes and practices and consider whether any changes need to be made in order to respect and recognize the gender identities of those employed in their organization or members of the public with whom they interact.

A further point that the decision highlights is that in order to achieve systemic and cultural change, awareness and education are necessary. That education comes through policy revision and training. However, policy revision and training usually come when there is awareness. In a society where individuals are becoming more aware of their rights, it is incumbent on organizations, business owners and employers alike to inform themselves of their responsibilities. A failure to do so leaves them vulnerable to potential liability.