In an open letter entitled “Assimilating gender and sex? Nadia El Mabrouk, Ghislaine Gendron and Johanne St-Amour protest against the government’s commitment to let trans and non-binary people change their sex designation, saying that this would amount to an anti-scientific assimilation between sex and gender. However, their open letter depends not only on a misunderstanding of the scientific consensus, but also of the legal concept of sex that has existed in Quebec for decades.
The letter conceives of sex as a purely biological question: sex is what you have between your legs when you are born and it is “materially impossible to change your sex”. Anything to the contrary would amount to “endorsing an unscientific conception of biological sex based on self-identification”.
This is a rather strange accusation, since the scientific authorities say precisely the opposite. The Trump administration’s effort to define sex on a purely biological basis was challenged by the American Psychological Association, the prestigious scientific journal Nature and, in an open letter, by more than 2,600 scientists including 700 biologists, 100 geneticists and 9 Nobel Prize recipients. Are all these scientific authorities wrong?
Sex in Quebec law
With all due respect to the authors, Quebec law has understood sex to include gender identity for decades. In 1998, the CDPDJ v. Maison des jeunes A… confirmed that in Quebec law, sex “is made up of different elements of a physical, psychological and psychosocial nature” and that trans people must be respected on the basis of their gender identity. As for the mention of sex on the birth certificate, it has been possible to change it since 1977. At that time, it is true, the surgical criteria were aimed at ensuring a certain anatomical conformity, but our ways of thinking have evolved greatly. since. In the early 2010s, several courts as well as the Human Rights Commission concluded that these surgical criteria were discriminatory since they refused to recognize the psychological and psychosocial sex of trans people.
The National Assembly unanimously adopted Bill 35, which since 2015 has allowed the designation of sex to be changed on the sole basis of gender identity. In Quebec, sex already includes gender identity.
The authors cite the Moore judgment of the Superior Court in support of the claim that sex and gender should not be confused. If this distinction is indeed noted in the judgment, it is only in a vernacular sense and as a subject brought. Read in its entirety, the judgment clearly confirms that legally, sex must correspond to gender identity. Its conclusion explains “that a civil status register which […] limits their ability to modify the designation of sex on their civil status documents to reflect their true identity deprives them of their rights to dignity and equality ”.
No opposition to the rights of non-trans women
The authors state, without empirical evidence, that equating sex and gender would be dangerous for the rights of women and children. Including trans people on the basis of their gender identity would prevent employment equity and endanger single-sex spaces. However, trans people have already had access to programs and spaces on the basis of their gender identity since 1998, since it is the right of the person and not the birth certificate that takes precedence. Despite more than two decades of inclusion, no concrete problems have emerged, which scientific studies confirm.
As the UN independent expert on LGBT issues explains, the inclusion of trans people is not in opposition to the rights of cisgender women, but strengthens them.
Trans communities are one of the most marginalized groups in our society. The rates of harassment, discrimination and violence against trans people are staggering and lead to serious deterioration in their mental health and, all too often, suicide. Excluding trans people from their gender identity or revealing their transitude on the grounds that “biological sex” differs not only ignores the scientific and legal conception of sex, but also condones and does not support discrimination against them. other effect than reinforcing their marginalization in Quebec society. Equality is a value enshrined in the Quebec Charter. Let’s respect it.
* Co-signers: Robert leckey, lawyer emeritus of the Barreau du Québec and holder of the Samuel Gale Chair at the Faculty of Law of McGill University; Martin Blais, doctor in sociology and sexologist and holder of the research chair on sexual diversity and gender plurality at the University of Quebec in Montreal; Natalie Kouri-Towe, Assistant Professor and Program Director, Interdisciplinary Studies of Sexuality, Simone-De Beauvoir Institute, Concordia University; Melanie Ederer, president of the Fédération des femmes du Québec; Dalia Tourki, law student, McGill University Law School; Annie Pullen Sansfaçon, full professor at the School of Social Work of the University of Montreal and holder of the Canada Research Chair in Transgender Children and Their Families; Isabel Côté, Associate Professor in Social Work at the University of Quebec in Outaouais, holder of the Canada Research Chair in Surrogacy and Family Links; Celeste Trianon, activist in trans law, Center for the fight against gender oppression, Concordia University (the Center is a co-applicant in the case of Center for the fight against gender oppression v. Attorney General of Quebec); Ariane Marchand-Labelle, Executive Director of the Quebec LGBT Council; Samuel Singer, Assistant Professor at the Faculty of Law of the University of Ottawa (co-applicant in the case of Center de Lutte contre l’oppression des genres v. Attorney General of Quebec)
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