Gender Identity and Equality Under the Law

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The law bestows rights upon people. The law denies rights to other people. We have a problem when the law arbitrarily deprives people of their deserved rights.

Upon inspection it becomes clear that the law marginalizes transgendered individuals through archaic policies and by turning a blind eye to overt discrimination.

The television show I Am Cait explores the obstacles that transgendered individuals encounter everyday: from finding jobs to getting into school to communicating with loved ones.

After watching I am Cait, I was inspired to read Jenny Boylan’s book She’s Not There (2003) about her own journey as a transgendered male-to-female. In her book, she remarked that:

Professor Lynn Conway at the University of Michigan estimates that there are forty thousand transgendered male-to-females in this country [United States of America], and that counts only the ones who have already had the surgery…that makes the condition more common than cleft palate and multiple sclerosis… So why don’t we see more transsexuals in our daily travails? …Simply because most transexuals look unremarkable.

Given the prevalence of transgendered individuals, it is absurd that government policies regarding gender and sex seem to be stuck on a bi-polar continuum. And even worst, discriminatory policies seem to be ameliorated only after legal action is taken and not upon the government’s own initiative, which further illustrates the marginalized status of transgendered Canadians.

For example, in the Human Rights case XY v. Ontario (Government and Consumer Services), 2012 HRTO 726, XY challenged the process regarding changing one’s sex on a birth certificate. Fortunately, the adjudicator saw the injustice in the process:

[15] I further find that the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had “transsexual surgery” is substantively discriminatory because it exacerbates the situation of transgendered persons as a historically disadvantaged group, and thus perpetuates their disadvantage. In the alternative, the requirement that Ontario birth certificates reflect the sex assigned at birth unless a person has and certifies to the respondent that he or she has had “transsexual surgery” is substantively discriminatory because it perpetuates stereotypes about transgendered persons and their need to have surgery in order to live in accordance with their gender identity, among other things.

XY case: http://bit.ly/1I2RPVL

“We act as if that being of a man or that being of a woman is actually an internal reality or something that is simply true about us, a fact about us, but actually it’s a phenomenon that is being produced all the time and reproduced all the time…”  – Judith Butler

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