New airport screening regs raise questions for trans Canadians

Marathon runner Jennifer McCreath has pointed out a recent regulatory change that the Harper Conservatives have made to the Aeronautics Act (i.e. passed by ministerial fiat, rather than shepherded through Parliamentary process) that potentially affects many trans (and cis) Canadians and could even ban some from air travel:

Sec 5.2(1)  An air carrier shall not transport a passenger if

  • (a) the passenger presents a piece of photo identification and does not resemble the photograph;
  • (b) the passenger does not appear to be the age indicated by the date of birth on the identification he or she presents;
  • (c) the passenger does not appear to be of the gender indicated on the identification he or she presents; or
  • (d) the passenger presents more than one form of identification and there is a major discrepancy between those forms of identification.

(2) Despite paragraph (1)(a), an air carrier may transport a passenger who presents a piece of photo identification but does not resemble the photograph if

  • (a) the passenger’s appearance changed for medical reasons after the photograph was taken and the passenger presents the air carrier with a document signed by a health care professional and attesting to that fact; or
  • (b) the passengers’s face is bandaged for medical reasons and the passenger presents the air carrier with a document signed by a health care professional and attesting to that fact.

5.3 (1) If there is a major discrepancy between the name on the identification presented by a passenger and the name on the passenger’s boarding pass, an air carrier shall compare the name, date of birth and gender on the identification with those of persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act.

(2) If the name, date of birth and gender on the identification are the same as those of a person specified to the air carrier, the air carrier shall immediately so inform the Minister.

This is a regulatory change made on July 29, 2011, and so far, it doesn’t appear that there have been any reports of transsexual or transgender people being refused passage on an airline because of this change. However, regulatory changes aren’t always made instantaneously.

“Papers, Please!”

The medical exemption appears to provide an allowance for specifically transsexual individuals, though not all transsexuals take a medical route, and certainly some will forget, be unaware of the requirement or be unable to afford to pay the fee for a sufficient doctor’s letter (my doctor would charge $100 for such a letter under his current fee structure).  It would almost certainly affect undocumented transsexual individuals (surgery-tracked or otherwise), since most Canadian provinces require evidence of genital reconstruction surgery before allowing the change of gender markers on foundational documents (all of them, when it comes to birth certificates).  This is further complicated by the fact that some provinces have removed coverage for this surgery from their “universal” health coverage — and even when coverage exists, standards of care call for a minimum of one year living as one’s identified gender before surgery can occur (2 years in some provinces, including Ontario).

That is to say, the medical exemption appears to provide an allowance for specifically transsexual individuals at first.  The way it’s worded in the new language of the law, the exemption applies only to a discrepancy between the photograph and appearance — discrepancies involving the gender marker on documentation are not addressed.

Still, it’s not explained what circumstances would be necessary to determine whether a person appears to be of the gender indicated on their identification, so people of diverse gender expressions (including some cis / non-trans Canadians) could be potentially affected, and scan-or-search procedures could also unfairly single out visibly intersexed people.  By the letter of the law, a major change in hair length or colour since having an ID photo taken could even be a basis for refusing a person from boarding, though that’s likely stretching it.  But by not clarifying how this value judgment on a person’s gender is to be made, lookism has potentially entered the equation.

And if an airline allowed such a person to board, they would actually be in violation of Federal Law.  From a reply that Catherine Mateo received from Air Canada:

From: support@help-aircanada.com;
… Air Canada is bound by federal law and as such we must comply with the regulations that if a passenger’s face or gender does not match the government-issued photo identification, we are prohibited from carrying that passenger. Again, if you have a concern regarding this, we respectfully ask that you pursue this with Transport Canada….

Canada’s Parliament passed human rights legislation to include transsexual and transgender Canadians, but it died at the election call, before the bill could be given Royal Assent by the Senate.  An identical bill has been reintroduced into Parliament and could be coming up for Second Reading in 1-2 months (people have been indicating support to their Member of Parliament, right?).  This change comes as trans issues are becoming better known to the federal government and in mainstream society.

The nation has been under pressure from the U.S. government to tighten screening and restrictions on Canadian travelers, including the introduction of full-body scanners, which also single out transsexual and transgender people for special scrutiny.  In September 2003, the U.S. Department of Homeland Security issued the first of several warnings that potential Al Qaeda terrorists might be changing tactics to avoid scrutiny, such as departing from airports in Canada and Mexico, or dressing as women.  Even before the regulation change, trans people — including McCreath — have experienced difficulty travelling to the U.S. and internationally, although not all of that has been at the hands of specifically Canadian border security or travel screening.

Some have speculated that the stress on appearance was also intended to target women who wear the niqab and hijab, making such an assessment impossible, and potentially also banning Muslim women who adhere to this tradition from boarding a plane.  Traditional coverings of this sort have already been flashpoints of controversy regarding citizenship ceremonies and court testimonies.  Although one of the motivations for these bans is supposed to be the status of women, punitive legislation targeting full face and body coverings have a horrible tendency to target women, rather than provide any viable solutions informed by them.

Anyone wishing to do so is welcome to contact the Minister.  Copy to your Member of Parliament as well, and remember to keep it civil but clear that the amended wording of the Aeronautics Act is a serious concern:

Hon. Denis Lebel, Ministre des Transports | Minister of Transport
Courriel | E-mail: denis.lebel@parl.gc.ca
Phone: 613-996-6236
Fax: 613-996-6252
Adresse postale (sans timbre) | Mailing Address (postage free) : Hon. Denis Lebel, Chambre des communes/House of Commons, Ottawa ON K1A 0A6

Transport Canada
Courriel | Email: Questions@tc.gc.ca
Phone: 613-990-2309
Sans frais | Toll Free: 1-866-995-9737
TTY: 1-888-675-6863
Fax: 613-954-4731
Adresse postale | Mailing Address: Transport Canada, 330 rue Sparks Street, Ottawa, ON, K1A 0N5

h/t Matt McLauchlin for some of this info.

(crossposted to The Bilerico Project, Rabble.ca and DentedBlueMercedes)

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    • Natalie
    • January 30th, 2012

    Just a small clarification on the Parliamentary process, Mercedes. It is not the Senate that gives a passed bill royal assent. That duty falls on the Governor General, in lieu of HM the Queen, after the bill passes three readings in the Red Chamber.

      • dentedbluemercedes
      • January 30th, 2012

      Yes, thanks. I made the mistake of rushing that addition.

  1. Many thanks. I heard about it this morning and was hoping you would post. I’m planning to travel to Canada later this year and am a bit worried. I’ve been through the whole UK gender recognition process and have matching passport and birth certificate, but airline tickets are expensive and I don’t want to leave anything to chance. Any info you can find would be gratefully received.

    • dentedbluemercedes
    • January 30th, 2012

    For the moment, your best bet is to have a signed letter (in case you need it) from your doctor attesting to the fact that you’re undergoing medical treatment, which explains why there may be a discrepancy between your appearance and the gender marker on identification. It’s sort of unclear at the moment, but I expect that there would at least be that allowance made by then. It’s not perfect, but for now, it’s the most certain option we have.

    • Medical treatment is long over. I’m much more worried about the fact that there might be something on my records that would tip them off, and the fact that once people know your failure to pass becomes “obvious”.

      Having had bad experiences with another country not far from yours, I tend to expect border guards to be entirely arbitrary in their behavior.

      Still, the planned trip is several months off. Hopefully we’ll know more by then.

        • dentedbluemercedes
        • January 30th, 2012

        Ah. These regulations only apply to identification documents. I’ve not seen any indication or heard of any incidents where trans history is an issue flying within or without, here.

        Security and customs people do have the same kind of arbitrary license here, but have been a lot more relaxed in application than south of the border.

  2. could it be the canadian government is back tracking on human rights for transgendered and transexual people at this point of time when we expect all governments to be moving forward on human rights for all people and not backwards. Wakeup Parliment. From a transgendered gurl living in the real world and thank god its the USA

    • Guy
    • February 1st, 2012
  3. Mercedes,

    I am very saddened by what has occurred here, and what has been projected as a “purposely” conducted effort by the federal government to exclude and target transgendered person(s) from from flying. This is not so, and unfairly projected by you and others. This is untrue, unfactual and does not represent the feelings and or experiences of most people. This policy effects everyone, and effects a whole range of diversities, and ones that have way more complications attached to them. This is purely a policy of safety, based on old social models of which any government, conservative or not goes bye.

    Sometimes I think can be seen as your own worst enemy when concepts, misinformation like this is so misconstrued. I can tell you and factually, the work I do with the federal government through Canadian Heritage is ground breaking and will be brought forward in the coming months. I can tell you, the beurocrats and government leaders I work with are very knowledgeable of the issues and extremely supportive. Thus too, as I initially acknowledged, issues of diversity effects everyone. We understand Canada’s place and role in the world in these issues. Because our efforts, we are seen as a global leader.

    I would ask you to take one step back, and get a better view of the reality and factually understand the truths. There is no one out to get you in Ottawa… This policy is dated and needs to be revised. Saying that acknowledging the importance of advocacy, but at the same time striking a balance and know when and how to do it. This “would have been”, a great opportunity to connect with the government and create an educational moment and broadening that relationship. Instead, you guys chose to blast them, and pull the “poor me card”… It only hurts the cause, needed education and support of government and Canadians alike. You only get few opportunities to get in the door.

    Unfortunately this time, 2 steps back…. We need to empower and educate Canadians to move the yardsticks forward. Important to note EVERYONE has diversity needs.

    “You get way more bees with honey…”

    Makes me very sad. I ask too, and important to the many people I know who are living this experience, when you use the words “community” in your dialogue and writing, reflect who you “THINK” you are representing, rather than who in-fact you are. I can tell you, me and many others only withdraw further from any association when incidents like this occur. As it is NOT reflective of the majority of person(s) and a few of you who feel you are defending.

    I ask you, next time – Think before you speak! As this hurts so many people in a negative way –

    With professional regards,

    /Kristen

      • dentedbluemercedes
      • February 7th, 2012

      I’ve personally avoided projecting a motive for this reason, and have at a few points over this process noted that it appears that someone had intended to include an exemption (although it ended up being undermined by bad wording and perhaps a limited understanding of the issues).

      I doubt I could have stopped or influenced the outcry, but assuming that’s the case, if we had an organized structure, this would have been better to resolve behind the scenes than in the public spotlight. I’d agree there. But we don’t have that structure, and people did bring this up to Transport Canada as individuals but received no response or else indifference. To me, that’s why it became feasible to make this a public issue.

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