Transgender issues: Legal questions after Quebec relaxes rules

Québec FlagJillian Page
LGBT Perspectives editor

QUEBEC — Has Quebec opened a legal Pandora’s box by relaxing the rules on changing gender designation?

People in Quebec can now change their gender designation and names on provincial documents without having to have sexual reassignment surgery (what some have called “forced sterilization”) or undergo hormone therapy. They don’t even need to see a therapist. They simply need to sign a form and have someone attest to the fact that they have identified as the opposite of their birth designation for at least a year.

Objectively speaking, a person assigned male at birth doesn’t have to do anything to feminize their bodies in order to change their official sex designation. In the government’s eyes, it is enough that they self-identify as female.

One of the reasons why the rules were relaxed in Quebec was because, as one trans advocate here puts it, SRS is invasive and dangerous. She and her organization lobbied hard for the rule revision, and the government has obviously agreed.

Which begs the question: What about all the people in Quebec who did have sexual reassignment surgery before the rules were changed on Oct. 1, 2015? Using MtF people as an example: Before they could change their gender designation, they had to have sexual reassignment surgery, undergo hormone therapy, see a therapist and a psychologist, and live the real-life test for at least a year in which they had to present as a woman 24/7 — i.e. be a feminine stereotype in the eyes of the patriarchy.

Granted, most women I know who have had SRS say they would have gone through with it anyway, because they wanted to feminize their bodies as much as possible.

And I imagine that many trans people will still opt for SRS in Quebec, despite the relaxed rules.

But legally speaking, has Quebec opened a Pandora’s box? Might it face a class-action suit from people who had SRS under the old rule? After all, the province seems to be admitting now that SRS is dangerous and invasive and that people shouldn’t have to go through it to change gender designation. Or, to avoid a class action, should Quebec simply compensate people who underwent SRS under the old regime?

Another legal question: The province has been paying for people to have SRS. Will it keep doing so now? Or will it say that the surgery is no longer a requirement to change gender designation, and thus is elective?

As for the surgery itself, will Montreal surgeons still need documentation from therapists and psychologists before they will do SRS on a Quebecer?

No doubt, there are more questions, both legal and technical. And, perhaps, social as well — a subject for another column.

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12 thoughts on “Transgender issues: Legal questions after Quebec relaxes rules”

  1. In response to the question “Has Quebec opened a legal Pandora’s box by relaxing the rules on changing gender designation?”:
    No.

    Max Silverman, Avocat

    Liked by 1 person

    1. Yes, it does seem like a pretty far-fetched basis for a lawsuit. You’d have to somehow show that the *only* reason you went for SRS was to change the sex designation on your ID and not for any other reason, and you’d also have to prove that you would have suffered damages had you not changed the sex designation.

      I doubt anyone would buy that.

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      1. I’m not so sure about that, Dianne. A lot of people — in other provinces, too — had the surgery at a time it was necessary in order to change their gender marker. The question is: would they have still gone through with the surgery? I know of one person (from another province) who had the surgery and suffered a vaginal prolapse not long afterward. It cannot be repaired properly. She had to wear a bag for a while, and then go through some more surgery, but she will never have the neo-vagina most other transitioned women have. So, she would agree that the surgery is risky and invasive. I know she regrets doing it. But would she have still gone through with it if she could have changed her gender marker without it? Hindsight is, of course, 20/20 . . .

        Anyway, I wanted feedback on this because it is something that I’ve wondered about for a long time as various provinces and other places relax the gender marker rules.

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        1. Hi, Jill.

          Yes, I think establishing that someone underwent SRS because it was the only way to change the gender marker would be the easy part. The harder part would be proving a link between not being able to change the gender marker and suffering damages.

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          1. Thing is, apart from damages, might an individual not have undergone SRS if they could have changed their gender marker without it? I don’t know if damages have to be proven.

            I dunno. I am not a lawyer. I just thought I would put this up for discussion.

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            1. I’m not a lawyer either, but I play one in my improv class. 🙂

              To win a civil suit, you always have to show damages or loss. That’s the entire basis of a suit and without that, you have no suit.

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  2. I think we’ve actually met before, Ms Page. Hi! 🙂

    They most likely will keep asking for documentation for surgery – for the surgeons, it’s also their lifeline in case someone has “regrets”. And for the RAMQ it’s their ‘proof’ that we need it. I mean we do still have to sign papers before surgery attesting that we fully understand the scope and implications of surgery and that we don’t hold them responsible for it if we regret our choice, but the documentation is still their extra “don’t sue us” backup. As the surgery is mostly a permanent affair, the implications on one’s physical integrity are much deeper than changing your legal mention, which while it can’t be changed immediately afterwards without a psych evaluation, won’t cause nearly as much lasting harm in case of a mistake. (And I’m saying this as someone who HAS gone through all the previous steps for both surgery and name/gender change)

    Similarly I also don’t expect Quebec to stop paying for the surgeries, at least not without massive backlash from us in the same way we gave them Hell for having previously tried to opt out of paying them. For the people who NEED the surgery, they’ll still need it for their mental and physical well-being, regardless of now being able to get their marker changed beforehand, and the province already pays the cost of treating our mental state beforehand.

    I can’t speka for others, but I don’t personally want lawsuit reparations for the fact of having been forced to go through so much trouble to get my legal changes or surgery. To be honest, Quebec has already paid for that by how long it’s taken me to find my footing after being unemployed for so long (my unchanged ID would get me automatically expelled from interviews, and the Montreal Commission for Human Rights never accepted my complaints about that. I’ve even been refused medical care before), and the impact the experience has had on my mental state has already cost them my disability status (the extra money I get from l’Aide Sociale because of it), the cost of my hospitalisations for suicidal ideation before I could access any proper medical care which was previously needed for the changes (legal and medical), and now the cost of my degraded health after having gone through all that. Their refusal to previously budge on a 150$ paper change has instead costed them tens of thousands of dollars in treating the sequelae resulting from what I went through. I think that’s plenty.

    What I always wanted is for the changes to be easier to access for people who need it – surgery or not, and we now have that. Not fully mind you, emancipated minors and minors with accepting parents as well as refugees and immigrants who don’t have citizenship who also happen to be trans can’t benefit from these yet, but Quebec is already being taken to Court over these – they’ll fall in line eventually.

    And we still have an awfully small roster of psychs who can clear the ones who still need surgery and hormones – often behind a cost barrier because little to none of them are covered with RAMQ insurance. So the province is still paying there too, even if indirectly.

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    1. Hi. Thanks for this response. It is well-presented.

      I’m wondering about one other thing: Might some pre-op people say it is discriminatory to make them go through therapy with a therapist and a psychologist in order to get SRS — now that they are able to change their documentation so easily without therapy. They could compare SRS to, say, a facelift, and say what they do with their bodies is their business.

      I also suspect that the number of Quebecers actually wanting SRS is so low that it is a negligible cost factor for the medicare system.

      Like

      1. Negligible is putting it lightly – last I heard, the cost for per taxpayer to cover trans surgeries by the RAMQ was counted in in decimals of pennies. This is if you ignore the money the surgery clinic brings it with people coming in internationally, who then have to stay here for convalescence. We do have one of the best surgeons, so it does bring in some measure of business too. 🙂

        Obviously this is just my opinion and I may come to be proven wrong – but I’m not so sure about it being entirely discriminatory that pre-op people need to go through therapy – I mean at the very least, you don’t get an appendix surgery without having a diagnosis for it. We DO face discrimination in how little medical access we get in terms of getting our diagnosis, and how we’re treated in clinics, that’s for certain, and we could definitely do with our reality being better understood in the medical community. (as is, training on trans issues is virtually non-existent)
        There are even some therapists who milk our situation for money (they see us and take our money, but then refuse to make the evaluation, or set the bar too high for no reason – it’s happened to me before. And not just privately, I’ve had it happen in a CLSC of all places.)

        I guess, if you can pay for your surgery entirely by yourself, then yeah it’s entirely your business what you do with your body. Nobody should interfere in that. But if we’re asking for the RAMQ to continue covering for us, then the surgery will likely continue to maintain at least some form of control check, if not necessarily as much as we have now.

        That’s my (uneducated) guess, at the very least.

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  3. I can’t speak to the other issues in your article but I can for this question, “As for the surgery itself, will Montreal surgeons still need documentation from therapists and psychologists before they will do SRS on a Quebecer?” The guidelines most credible surgeons go by are set by WPATH so the documentation from mental health professionals will still be required. I can’t see (them) changing this requirement.

    Liked by 1 person

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