Recently, it came to the public’s attention that changes were made to the Screening Regulations within the federal Aeronautics Act that may prevent trans* people from flying on airplanes. At our February 2 Collective meeting, Pride members decided to take action on these discriminatory regulations. If you would like to send your own letter to Denis Lebel, Minister of Transport, we have a template you can fill out here.
Chambre des communes/House of Commons
Ottawa, ON K1A 0A6To the Honourable Minister Lebel,
We are writing on behalf of the University of Victoria Pride Collective to express our grave concern over the July 29, 2011 changes to the Screening Regulations in the Aeronautics Act. Specifically, the addition of Sec 5.2(1)(c): “An air carrier shall not transport a passenger if the passenger does not appear to be of the gender indicated on the identification he or she presents.”
Not only is this act discriminatory against trans* people, which includes transgender, transsexual, genderqueer, gender variant and gender non-conforming folks, it will disproportionately affect working class and racialized trans* individuals. It also functions on false assumptions regarding gender in general and attempts to force individuals to contain their experience within a binary notion of gender. Gender is far more complex than binary ideas of man/woman, masculine/feminine and male/female. The lack of understanding of the Ministry of Transportation about gender identity and expression is evident within the policy itself, which uses the dichotomous pronouns “he” and “she” to describe all individuals who may wish to access air transportation.
Putting the responsibility of determining a person’s gender in the hands of airport security officials will result in arbitrary decisions, often founded on transphobic prejudices, failure to recognize trans individuals as “real” men or women and lack of understanding of gender identities that exist outside binary conceptualizations of gender.
Any regulation that prevents someone from accessing services on the basis of not appearing “to be of the gender indicated on the identification he or she presents” blatantly discriminates against trans* people. It is ironic that this regulation was changed while parliament was not sitting, shortly after the dissolution of Parliament that prevent the Trans Rights Bill from being voted on by Senate but before the bill could be reintroduced to the 41st Parliament. This regulation violates the protections that bill intended to introduce by allowing discrimination on gender expression and identity.
Despite the use of the term “gender” in the Screening Regulations, most identification actually indicates a person’s biological sex. From this, an assumed gender identity is often extrapolated based on a false conflation of biological sex and the socially constructed category of gender. These assumptions of gender would then be used to determine whether or not a person’s outward gender expression correlates with the sex indicated on their identification. However, since individual gender expression is varied and fluid, this is not only an arbitrary exercise, but a futile one.
Biological sex, as determined at birth, has no direct link to gender identity or expression. Causation has been falsely constructed due to socialization of infants into binary gender roles depending on their genitalia. While this assumed link may hold true for the many people, the reality is that trans* individuals’ experiences demonstrate that gender identity and expression do not always exist in binary terms. Common narratives often focus on transsexual identities, where people surgically transition from one gender and sex to the other. While this is representative of some trans* people’s experiences, it has also promoted a false assumption that all trans* people wish to medically transition. This is evidenced in the government’s assertion that passengers can provide a medical certificate or doctor’s letter explaining any perceived discrepancies.
There are several reasons a trans* person may not be able to produce medical documentation. Trans* identities are diverse and include people who identify with many different genders, including people who do not identify within the man/woman or male/female binaries. Many trans* people have no desire to access medical transition services. Others may wish to access some services, such as top surgery, but not others, such as hormones. Whatever level of services trans* people wish to access, if any, should not be cause for discrimination.
Furthermore, working class trans* people who want medical services may have less access to them due to financial barriers, despite varying provincial health coverage for transition services. Trans* people who wish to access medical services are often required to travel and find accommodations in other cities. Working class trans* people therefore have less access to medical documentation and will be unfairly affected by this regulation.
Not only does this regulation pose additional barriers for working-class trans* people, it will also disproportionately affect trans* people of colour. People of colour already face increased scrutiny at airports largely due to misplaced fears and racist assumptions surrounding terrorism. A warning issued by the US Department of Homeland Security stating that terrorists may be dressing as women to avoid detection will only amplify scrutiny of trans women of colour.
The consequences of enforcement of these regulations could severely impact trans* people. Not only does it restrict the mobility of individuals who are affected by this regulation, it also could have serious implications for trans* people’s mental well-being. Using the sex indicated on a person’s identification to arbitrarily decide if their gender is in violation of this regulation may “out” the person in the process. “Outing” is not only an incredibly unacceptable practice, it can also be triggering, causing intense emotional distress and mental anguish.
While gender identity and gender expression are not, as of yet, specifically protected in the Charter of Rights and Freedoms, this regulation still violates trans* people’s Charter rights. Section 15. (1) of the Canadian Charter of Rights and Freedoms states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” This regulation clearly does not offer equal protection and benefit to trans* people. It also affects trans* people’s Section 6 mobility rights by limiting their ability to move freely within the country.
Precedent has shown it is a human rights violation to discriminate based on gender identity or expression. On repeated occasions, human rights tribunals have determined trans* identities are protected under human rights legislation. In 1992, a Quebec Human Rights Tribunal chaired by Michele Rivet determined transsexualism fell under the category of “sex” as a prohibited grounds of discrimination. A B.C. Human Rights Tribunal agreed with that interpretation in a 1999 case of washroom discrimination. Assumptions about a person’s gender based on their sex that result in discrimination are a violation of Charter rights that explicitly protect individuals from sex-based discrimination.
This regulation is discriminatory and unconstitutional. It should not have to be challenged in courts in order to be struck down. Rather, it is up to the government to recognize the vast human rights abuses that may occur under this law and take immediate steps to rectify this situation.
We ask that immediate steps are taken to repeal these discriminatory regulations.
UVic Pride Collective Coordinators