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Do you really need to know that? Gender identity, personal employee information, and inclusive design

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In a decision earlier this year, considered a win for gender-diverse people, the Quebec Superior Court recognized the harms associated with the misidentification of non-binary and trans people on various forms of government issued identity documents (IDs). While the decision addressed legal barriers faced by these individuals in accessing IDs that reflect how they identify, the harms associated with gender non-concordant IDs are the basis for growing calls to have gender markers removed from IDs altogether.

The Quebec decision 1, issued on January 28, 2021, struck down several sections of the Civil Code of Québec as being unconstitutional for preventing individuals from obtaining legal IDs that reflects their gender identity.  Among other rulings in the decision, the Court recognized the existence of non-binary identity, meaning non-binary Quebecers now have the right to change their designations on legal documentation to something other than “male” or “female.”

In his decision, Justice Moore ruled that:

…[A] register of civil status that does not recognize the gender identity of transgender and non-binary people, or that limits their ability to correct the designation of sex […] to reflect their true identity, deprives them of the dignity and the equality that they are owed. Their inability to prove their true identity keeps them in a state of acute vulnerability that too often leads to suicide.

Canadian Jurisdiction

In Canada, policies and legislation pertaining to gender markers on IDs differ vastly across jurisdictions. Policies also differ within each jurisdiction depending on the type of ID. For example, in Ontario, as of June 2016, health cards no longer include gender markers of any kind whereas driver’s licenses can be obtained with the gender options of “X,” “M,” or “F.”  As of October 2020, Manitobans can further choose to leave the field blank.  The governments of Ontario, Manitoba, and the Yukon charge a fee (ranging from $10-$30) to change one’s gender marker, whereas in New Brunswick, there is no charge at all.  Many provinces, including Ontario, require people to have a medical professional sign off on their request for a gender marker change.

International Human Rights

For many gender advocates, the ability to select “X” instead of “M” or “F” on one’s ID or to correct one’s gender with minimal barriers does not go far enough to create equality and eliminate harms to non-binary and trans people.  The Gender Free I.D. Coalition explains that, “The ‘“X” solution’ helps overcomes bureaucratic hurdles for Canadians with non-binary genders and sexes, but would not alleviate the discrimination faced. Indicating an ‘X’, puts a target on already marginalized people.”

Some commentators have noted that the primary purpose of an ID is to ensure that the person presenting the ID is who they say they are, and that information about gender does not create additional clarity.2  Many jurisdictions have removed information about race, religion, or marital status from identification documents for the same reason. Further, where gender markers are required, the onus is placed on the individual to proactively change their gender markers, which can involve lengthy and stressful medical and administrative requirements.

Principle 31 of the “Yogyakarta Principles plus 10,” a set of principles on international human rights law relating to sexual orientation and gender identity, calls on states to:

Ensure that official identity documents only include personal information that is relevant, reasonable and necessary as required by the law for a legitimate purpose, and thereby end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality.3

In 2018, the United Nations Independent Expert on Sexual Orientation and Gender Identity stated that “legal systems must, on an ongoing basis, carefully review the reasoning behind the gathering and exhibition of certain data,” and expressed “significant doubts as to the real need for pervasive exhibition of gender marker in official and non-official documentation.”

In a move that signals a shift in thinking about the need for gender markers on IDs, the Dutch government announced their plan in June of 2020 to remove the category of gender from national identity documents altogether within five years, except for birth certificates.

Best Practices for Employers

As legal requirements and international thinking continues to evolve, and as part of a larger strategy to create trans- and non-binary-inclusive workplaces, employers should examine their policies and practices with respect to collecting and using data on sex and gender.

Collecting gender-related information, when not legally required or for a legitimate purpose, puts a gender-diverse employee in the position of unnecessarily revealing personal information which can invite discrimination and harassment in the workplace.  This puts the employer at risk for a human rights complaint, just as if they had collected irrelevant information about other personal characteristics such as disability, religion, family status, etc.

One example of a legitimate purpose for collecting gender-related data is to promote equity and diversity initiatives or to identify and remove systemic barriers in the workplace.  When done using accepted data collection techniques, this can be an important and effective tool in promoting trans- and non-binary-inclusive workplaces.4

Employers routinely collect legal name and gender information from employees during onboarding processes to enable payroll set-up and enrollment in insurance plans.  Human resource departments should have processes in place that account for the fact that employees may not have government IDs that accurately reflect their gender or chosen name. Best practices with respect to collection and management of data pertaining to gender includes steps by employers to ensure that:

  • requirements for an employee’s IDs or legal name and gender are legitimate and are accompanied by an opportunity for the employee to self-identify their gender identity, pronouns, and current name used. Where an employer is required by law to collect information respecting its employees’ legal name or gender, this should be made clear;
  • electronic databases and IT systems are modified, whenever possible, to recognize and record an employee’s self-identified gender, correct pronouns, and chosen name, so that appropriate terms will be used for personnel and administrative purposes, such as directories, email addresses, business cards, website, nameplates, e-profiles etc.;
  • employees who want to update their name, sex/gender info (if collected), and pronouns can easily do so and that the number of gatekeepers to this information is minimized;
  • all information is kept secure and exclusively with designated personnel (e.g., human resources).5

With respect to the recent Quebec decision referenced above, it is worth noting that two issues are currently under appeal.  Namely, the plaintiffs are appealing the Court’s decision to uphold a parent’s right to object to their child’s request for a name change, and the Quebec government is appealing the Court’s decision to remove the requirement that youth aged 14-17 provide a letter from a health professional when applying to change their gender designation on IDs. I will be on the lookout for the outcome of this appeal, and I will be watching as international thinking continues to evolve on whether gender identifiers belong on IDs at all.

1 2021 QCCS 191 (CanLII)

2 See: Neela Ghoshal, “Transgender, Third Gender, No Gender: Part II – Rights Perspectives on Laws Assigning Gender,” OpinioJuris (September 2020), online:  https://opiniojuris.org/2020/09/04/transgender-third-gender-no-gender-rights-perspectives-on-laws-assigning-gender-part-ii/

3 Principle 31: The Right to Legal Recognition, “Yogyakarta Principles Plus 10” (November 2017), online: https://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-2.pdf.

4 See the Ontario Human Rights Commission’s guide, “Count me in! Collecting human rights-based data.”

5 These best practices have been adapted from the following resources: the Ontario Human Rights Commission’sPolicy on preventing discrimination because of gender identity and gender expression, pages 58-60, the 519’s Creating Authentic Spaces: A Gender Identity and Gender Expression Toolkit, pages 58 &59, and Canadian Gay and Lesbian Chamber of Commerce’s Trans and Non-binary Inclusion Guide, pages 17 &18.

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