While a number of provinces offer gender-neutral birth certificates, many in Canada’s trans and gender-diverse communities say they are concerned their lived identity is not always reflected in official documents after their death.
“It’s the final ‘screw you,’” says Callum Tate, a Toronto transgender man in his mid-30s. ”It erases them without their voice here to say, ‘You made a mistake.’”
Between 2012 and 2017, all Canadian provinces and territories amended their Vital Statistics Act and lifted the requirement of gender confirmation surgery for people to change their gender on various documents. Five provinces and two territories offer a gender-neutral option.
Death certificates, however, are far behind.
“How an individual’s identity is reflected on vital event certificates is an important conversation that is being had in jurisdictions right across the country,” says Maria MacInnis at the Nova Scotia Vital Statistics and Medical Examiner’s Offices.
At the time of death, she says, the medical examiner or last attending physician completes the medical certificate of death, which reflects the sex as per the physical characteristics observed at autopsy. While each province has its own policy, practices across Canada are similar.
As only a small percentage of trans people opt to get gender confirmation surgery, the anatomy of the deceased doesn’t always reflect their gender identity.
“In Canada, ascertaining the identity of a deceased person remains a very medicalized and pathologizing process that understands and empathizes the deceased person as a body categorized by sex assignment,” says Kate Hazell, a co-ordinator at The 519 — a Toronto-based agency that advocates for the LGBTQ community.
“There is currently no meaningful mechanism to ascertain the self-identified gender of a deceased person,” she says.
Hazell is aware of trans Canadians who were misgendered in official documents after death, though she declined to share their names for confidentiality reasons. The problem is also present in other countries, including the U.S.
“Not having one’s lived identity recognized at and after death is a form of violence,” says Hazell. “It also does harm to community, friends, partners and family who wish to ensure their loved one is represented in an authentic and respectful way.”
Misgendering after death may be deeply distressing to grieving family and friends, say advocates.
“It can also impact genealogical records, insurance claims and delays in settling the estate,” says Susanne Litke, lawyer and acting chair of the Nova Scotia Rainbow Action project.
For the Canadians who identify as transgender, concerns about death certificates can come tragically early. The 2015 Trans Pulse Report found that 20 per cent of transgender people in Ontario had been physically or sexually assaulted because they were trans, and 67 per cent feared they would die young. The 2017 Canadian Trans Youth Health Survey reports that transgender youth aged 19 to 25 had over 16 times the risk of a suicide attempt in the past year than cisgender youth of the same age.
A will is the only legal document that can help trans individuals express their wishes after death, says Litke.
“People can put in their will their name and gender to be respected and ask their executor to follow those requests,” she says.
Tate, whose father has dementia, says he worries about what will happen if he develops the condition and can’t advocate for himself one day.
“Government identification forms should include this question: ‘In the event of my death, I want to be referred as: Name, Gender,’” he says.
MacInnis says the way forward may include collection of both sex observed at autopsy as well as lived gender.
“Maintaining information on the anatomical sex of a person is important as health conditions related to the cause of the death can present differently” depending on biological sex, she says. “That being said, it is also important to gather statistical information on the 2SLGBTQIA+ community over time to improve health provision, service and outcomes.”
— Marie-Claude Grégoire is a pain and palliative medicine physician and a fellow in global journalism at the Munk School of Global Affairs at the University of Toronto.