Marcotte, Hogue, Hamilton

The Court’s judgment rules on an appeal and an incidental appeal against a judgment dated January 28, 2021 and corrected on February 9, 2021, rendered by the Superior Court, District of Montreal (the Honourable Gregory Moore), declaring several provisions of the Civil Code of Québec (“C.C.Q.”) and of the Regulation respecting change of name and of other particulars of civil status (“Regulation”) invalid and of no force or effect on the ground that they violate the dignity and equality rights of transgender and non-binary persons.

Only two of the legislative provisions are the subject of the appeal: section 23.2 of the Regulation and article 62 C.C.Q.

The majority reasons were drafted by Marcotte and Hogue, JJ.A., and concurring reasons were drafted by Hamilton, J.A.

1.    The validity of the second paragraph of section 23.2 of the Regulation is restored.

Section 23.2 of the Regulation requires that minors provide a letter from a designated professional attesting to the appropriateness of the requested change of designation of sex.

The trial judge determined that that section violates minor persons’ right to equality guaranteed by section 15 of the Canadian Charter, since the requirement resulting therefrom creates a distinction based on age with persons of full age, who need only provide an affidavit of a person of full age, who has known them for at least one year, who confirms the seriousness of the undertaking.

He therefore proceeded with the analysis under section 1 of the Canadian Charter and found no rational connection between that requirement and the legislative objective being pursued.

The judge also concluded that the letter required under section 23.2 of the Regulation was not a minimal impairment of the protected rights, since transgender minors who cannot find, afford, meet with, or confide in a health professional who is knowledgeable about the reality of transgender people will have their applications for a change of designation of sex rejected and their rights violated.

In the principal appeal, the Attorney General of Quebec (the “AGQ”) challenges those conclusions.

1.1. The interpretation of section 23.2 of the Regulation

The Court finds that the trial judge committed two errors in the interpretation of section 23.2 of the Regulation, namely:

1) The Regulation does not give the designated professional authority to decide for the minor person if the change of the designation of sex is appropriate. The professional’s task is limited to determining whether the change in the designation of sex is “appropriate”, in light of the four conditions enumerated in section 23.1 of the Regulation; and,

2) Obtaining a letter of attestation does not amount to a medical treatment. There is therefore no contradiction between the Regulation and its enabling provision, i.e. article 71 C.C.Q.

Those interpretive errors are not in themselves dispositive. They become so, however, by subsequently serving as bases for the trial judge’s constitutional analysis.

1.2.  The compatibility between section 23.2 of the Regulation and section 15 of the Canadian Charter and section 10 of the Quebec Charter

The trial judge’s finding that section 23.2 of the Regulation creates a distinction on the basis of age is not challenged.

For the majority judges, that distinction based on age is not illegal. The law often sets an age from which a person may exercise certain rights, based on the premise that human beings acquire maturity and develop an enhanced capacity to make decisions and exercise certain rights over time.

For his part, Hamilton, J.A. finds that what is at stake goes beyond the sole issue of age-based discrimination. Even though the Regulation does not expressly distinguish transgender or non-binary persons from cisgender persons, its chapter dealing with the change of the designation of sex only applies to those persons who want to change the designation of sex that appears in their documents of civil status, and therefore, only to transgender or non-binary persons who consider that that change is essential to their full participation in society, on the same basis as cisgender persons. By subjecting the right to change the designation of sex to certain conditions that apply only to transgender or non-binary persons, the Regulation creates, in fact, a distinction based on a protected ground.

He therefore concludes that the provision creates double discrimination, based on age and gender, a ground of discrimination provided in section 10 of the Quebec Charter and an analogous ground within the meaning of subsection 15(1) of the Canadian Charter.

In his view, the evidence adduced at trial clearly establishes that transgender or non-binary persons are a disadvantaged group. The non-concordance between the designations that appeared in their documents of civil status and their true identity contributes to that situation. The AGQ has not shown any palpable and overriding error in the judge’s conclusion that section 23.2 of the Regulation imposes on transgender or non-binary minor persons an additional burden which may prevent them from undertaking, or at least delay, the steps required to have their civil status documents changed, which has the effect of perpetuating, reinforcing or exacerbating the disadvantages that they are already experiencing. The judge therefore correctly held that the second paragraph of section 23.2 of the Regulation discriminates against transgender and non-binary people within the meaning of section 15 of the Canadian Charter.

1.3.  The right to the safeguard of dignity

For the majority judges, the non-concordance between the designations appearing in a transgender or non-binary person’s documents of civil status and their true identity is a question of dignity. The fact of not having an act of birth that reflects their reality leaves them without legal existence and prevents them from enjoying the fundamental attributes of a person. The second paragraph of section 23.2 of the Regulation, for its part, limits that right of minors, notably those aged fourteen or over, to change the designation of sex that appears on their civil status documents. The majority judges find that the right to the safeguard of dignity has been infringed.

1.4. Justification under section 1 of the Canadian Charter and section 9.1 of the Quebec Charter

At the outset, the Court notes that the respondents do not question the judge’s finding that the objective behind section 23.2 of the Regulation is pressing and substantial. The debate must therefore focus on the measure’s proportionality on the basis of the three applicable criteria.

Reviewing the reasons given by the trial judge, the Court determines, inter alia:

1) that there is a prima facie appearance of a rational connection between the objective, which is to ensure the seriousness of the application, and the requirement of an attestation from a professional confirming that the change is appropriate. It must however be shown that “it is reasonable to suppose that the limit may further the goal.” In that regard, even though the professional’s role remains relatively limited, it is nevertheless important, because although they cannot decide the gender identity of the person concerned in the latter’s place, they can nevertheless assess whether that person’s undertaking is serious. The letter serves a useful purpose in achieving the legislative objective;

2) that the rights guaranteed by the Canadian Charter, in particular, are minimally impaired because although the minor will have to consult a professional, possibly missing school to do so, and possibly having to incur costs, this will not necessarily be the case. It may also be more difficult, outside of urban areas, to find a professional with sufficient knowledge of transgender or non-binary reality to agree to provide such a letter. However, by including social workers in the list of designated professionals, the legislator alleviates several of these difficulties, and;

3) that the effects of the impugned provision on the applicants are not disproportionate to its objective. The objective behind section 23.2 of the Regulation is to assess the seriousness of the undertaking by the person filing an application to change the designation of sex that appears in their act of birth, and that objective is pressing and substantial; there is a rational connection between that objective and the requirement of an attestation from a professional confirming that the change is appropriate; and, the requirement of an attestation is minimally impairing.

Thus, the burden imposed on minors is reasonable under the circumstances. It takes into account their reality, the fact that they have not all reached their full maturity and that some may be more vulnerable on account of their age. Therefore, although the second paragraph of section 23.2 of the Regulation violates certain rights protected by the Charters, the limit resulting therefrom, correctly construed, is justified under section 1 of the Canadian Charter and section 9.1 of the Quebec Charter.

2.    The application for a change of given name made by a minor 14 years of age or over and motivated by a gender identity issue constitutes a “compelling reason” within the meaning of article 62 C.C.Q.

Article 62 C.C.Q. provides that no change of name of a minor child may be granted by the registrar of civil status if the parents or tutor have not been notified of the application or if they object to it, unless there is a “compelling reason.”

The trial judge concluded that the respondents had failed to demonstrate that that provision had a discriminatory impact on transgender youth who wish to change their name without changing the designation of their sex in their act of birth.  

In the incidental appeal, the Centre for Gender Advocacy
(the “Centre”) challenges that conclusion.

The Court is of the view that article 62 C.C.Q. does not require minors 14 years of age or over to notify their parents or, as the case may be, their tutor, when they apply to have one or more of their given names changed so that they correspond to their gender identity, no more than it confers on the parents or tutor the right to object to their application. There is no doubt that when a minor 14 years of age or over wants their given name or names to correspond to their gender identity, this constitutes a “compelling reason” within the meaning of article 62 C.C.Q., and therefore the registrar of civil status has jurisdiction to grant the change that they request even if their parents or tutor have not been notified or, if the minor chose to notify them, even if they object to their application. The legislator has already given them the required autonomy to have the designation of their sex changed without having to notify anyone and, at the same time if they so wish, to have their given names changed where their application is motivated by the fact that such designations do not correspond to their gender identity. Consequently, the legislator intended to give them their autonomy when they are requesting, for that same reason, only a change of their given name or names. Finding otherwise would lead to an absurdity, since that would mean that someone who is requesting less changes would be subjected to more stringent requirements than someone who is asking for more, even though the reason in support of their application for a change is the same. Such a proposition is unsustainable.

Although this is in no way determinative, the Court also notes that its interpretation of article 62 C.C.Q. and the notion of “compelling reason” that it contains is consistent with the legislator’s choice to grant to minors 14 years of age or over great autonomy as regards their health care. Of course, a change of one or several given names is not health care, but the evidence shows that the obligation of having one or several given names that do not correspond to one’s gender identity can lead to numerous difficulties from which may stem physical or mental health problems. It would therefore be incongruous that the legislator grant to minors 14 years of age or over the right to consent to health care, while not granting them the requisite autonomy to change a situation that may jeopardize their health.

In sum, considering the interpretation given to the notion of “compelling reason”, the Court does not discuss the impact that a different interpretation would have had on the rights of transgender or non-binary youths protected by the Canadian Charter and by the Quebec Charter.

A declaration that the gender identity that motivates an application for a change of given name for a minor 14 years of age or over constitutes a compelling reason within the meaning of article 62 C.C.Q. is, however, appropriate.

Conclusions

For these reasons, the Court:

• ALLOWS the principal and incidental appeal;
• QUASHES in part the judgment in first instance as follows:
• STRIKES OUT paragraph 341 of the judgment in first instance that declares invalid section 23.2 of the Regulation respecting change of name and of other particulars of civil status;
• ADDS the following conclusion:

DECLARES that article 62 C.C.Q. must be read and interpreted such that the application for a change of given name made by a minor 14 years of age or over and motivated by a gender identity issue constitutes a compelling reason within the meaning of that article.

Text of the decision: Attorney General Québec c. Centre for gender Advocacy