Transpeople and the Law in Canada in the 1970s and 1980s
Birth Certificate Changes
By 1979, it was possible to change a gender marker on a birth certificate in at least 6 Canadian provinces. Amended birth certificates would only be issued with medical proof of gender affirming bottom surgery, usually a letter from the surgeon who performed the operation or a letter from another physician who had physically examined the person applying for the gender marker change. This meant that a legal change was only available to those who could access these surgeries - primarily transwomen who were able to meet the stringent criteria of the gender clinics and who had financial resources. It would have been very difficult for transmen to legally change their gender marker since phalloplasties were rarely performed due to the complexity of the surgery and the low success rate. Quebec and New Brunswick would only amend the birth certificates of unmarried individuals presumably because changing the gender marker would change the marriage from a legally sanctioned marriage between a man and a woman to a not-yet-legal "same sex" marriage.
Discrimination
Although gender identity only became a prohibited grounds of discrimination under the Canadian Human Rights Act in 2017, discrimination based on "sex" has been illegal since the act came into force in 1977. The Ontario Human Rights Commission informed FACT that their lawyer believed that discrimination against trans people would be included in the category of "sex discrimination."
Writers for Gender Review sometimes had differing opinions about whether it was advisable to use the legal system to deal with discrimination. Ms. G.N. wrote to Gender Review asking if it was illegal for a landlord or hotel to refuse to rent her because she was trans. Karolyne (one of Gender Review's advice columnists) explained that denying services based on "sex" was illegal but that the legal definition of "sex" doesn't include gender identity. She encouraged Ms. G.N. to file complaints with both the federal and provincial human rights commissions arguing that such a case would establish a legal precedent. Karolyne suggests that Ms. G.N. attempt to rent a room again but this time take at least two people to act as witnesses in case the rental is denied again. Having witnesses would strengthen a case heard by a human rights commission. See article "Kyle & Karolyne's Korner" on page 5 of Gender Review, no. 3.
Two short anonymous articles in a feature called "You and Your Rights" were more ambivalent in their advice regarding filing complaints with human rights tribunals. While they provide information about making a human rights complaint they also caution readers that tribunals have a high standard of proof, may bring unwanted publicity, and that a hearing (even with a positive result) might not put a stop to the discrimination. See "Transsexualism Covered by Ontario Human Rights" and "Discrimination and the Canadian Human Rights Act" both on page 9 of Gender Review, vol. 2, no. 1. (The scan includes the first two pages of vol. 2, no. 2 and pages 3-12 of vol. 2, no. 1.)
Transpeople used the courts to challenge transphobic discrimination. These cases dealt with issues such as denial of health insurance benefits for gender affirming surgery, wrongful dismissal from employment, and discrimination in prison. Gender Review reported on a number of these court cases and devoted full articles to the cases of Karen Ulane and Inge Stephens. Ulane was an American pilot who was dismissed from her job with Eastern Airlines after surgery. The court ruled that she was not protected by civil rights laws and the US Supreme Court upheld the ruling. Stephens was denied private insurance coverage for surgery and consequently defaulted on a loan she had taken out to pay for it. She took her insurance company to court and was offered a settlement. The insurance company held its postion that being trans is not a disability or medical condition which meant that although they were willing to pay Stephens a settlement, they were not willing to cover her surgery. Stephens was also part of a class action lawsuit against the Québec government arguing that their public insurance should cover gender affirming surgeries performed in the US since they weren't available in Québec. Provincial health insurance did cover other out-of-province medical treatments that weren't offered in Québec. See the articles "Transsexual Oppression!" on pages 1-2 of Gender Review, no. 1 and "Transsexual Oppression (continued)" on pages 1 and 15 of Gender Review, no. 2.
Many court cases involving discrimination against transpeople centered on the question of whether or not transness was a disability or a medical condition and the secondary question of whether the transperson bringing the case met the medical criteria. This perpetuated the idea that transpeople are "sick". It often resulted in the invasion of transpeople's privacy - they were sometimes subjected to examination by physicians and their medical history and details about their bodies were shared publicly in court. In spite of these drawbacks, positioning transness as a medical condition was a strategic move by transpeople. They argued that medical transition was the best treatment for transsexualism because in the absence of a "cure", it increased transpeople's well-being. Medicalization also shifted the the narrative away from ideas about transness being criminal and/or deviant and started to establish the sense that someone's gender identity is beyond their control.
Prison Issues
Transpeople (especially women of colour, Indigenous women, and Two Spirit people) were (and continue to be) overrepresented in the prison population. Transpeople were often put in prisons according to their assigned gender (i.e. transwomen were usually assigned to men's prisons). Trans prisoners were at increased risk of assault (including sexual assault) from other prisoners and guards. They were frequently denied access to hormone treatment. Although there has been some improvement, many of the challenges that transpeople faced in prison in the 1970s and 1980s continue today.
The Elizabeth Fry Society and the John Howard Society (organizations supporting people in prison) recognized the need for services for transpeople in prison and those who had been recently released. Both Raj and Huxford worked with the Elizabeth Fry Society of Kingston* to help improve its services to trans clients. Transpeople in prison wrote to FACT for support and some of these requests were published in Gender Review. The published letters included a request for money to cover gender affirming surgery and a request for penpals.
Katherine A. Johnson wrote about her experiences in the prison system in "Life on the Inside" in Gender Review, no. 11 (pages 4-5). She was harassed by other prisoners and some of the guards. Johnson was required to make multiple formal requests to access hormones, women's clothing, and private shower facilities. These requests weren’t always granted. A prison doctor refused to provide Johnson with estrogen even though it had been prescribed to her at a gender identity clinic. Without access to hormones, Johnson became severely depressed. At times during her sentence, Johnson had someone smuggle black market hormones into prison for her. Johnson would later write a memoir with Stephanie Castle about her experience in prison called Prisoner of Gender: A Transsexual and the System (Perceptions Press, 1997).
"You and Your Rights: CSC Policy" is a short anonymous article in Gender Review, vol. 2, no. 3 (page 10) that outlines Correctional Services Canada’s policy for providing services to transpeople in prison. Although the article doesn’t state the nature of the services, it’s likely referring to access to hormones but may also include being housed in a prison appropriate to the person’s gender identity or other accommodations such as gender appropriate clothing or private showers. A transperson would be assessed by the prison psychiatrist who might recommend them to a regional correctional psychiatric centre which might in turn refer the person to the Gender Identity Clinic at the Clarke Institute for Psychiatry in Toronto. (For more information about the Clarke’s Gender Identity Clinic, see the Medical Transitions section of this exhibit). The Clarke would, in some cases, make a recommendation to the Commissioner of Correctional Services Canada. CSC might then allow the transperson access to services as long as the prison had the capacity to do so. The article ends with a suggestion that transpeople should "keep clear of the law so that the problem of treatment in jail may not arise" (emphasis in the original). This advice seems particularly naive given that the law did not "keep clear" of transpeople: transphobia created conditions that it more likely that transpeople would engage in criminalized activities such as sex work and drug use. Discrimination within the criminal justice system meant transpeople were more likely to be scrutinized, arrested and given harsher sentences. Conversely, they were less likely to be believed or taken seriously by police if they reported being a victim of a crime. Sometimes "crossdressing" could lead to an arrest for sex work or self-defence could lead to assault charges.
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*Kingston, Ontario is the home to multiple correctional facilities including two (since closed) maximum security facilities: the Kingston Penitentiary and the Prison for Women (P4W).