TESA: New Regulations Potentially Bar Some Trans Canadians From Air Travel

I just wanted to update folks on the Aeronautics Act regulatory change issue.

Firstly, I caution people to avoid saying that that trans people are “completely banned” from airlines, especially since we don’t know yet if that’s how this will play out. The regulation has been around since July or longer, there’s been no reports of denial of transport, and some of that can be explained by the delay in implementation, but we’ve not experienced a total ban — at least not yet. There is even a portion that could be interpreted as an intended exemption.

It’s true that with the way it’s worded, it *appears* to be a ban. The wording is definitely concerning, especially because it would mean that if an airline allows someone to board with an incongruent gender marker, they’d be in violation of federal law. But we don’t know that the implementation will play out this way, yet.

Several media outlets are picking up the story, and there are also a few online petitions developing, including this one at Change.org:

“We understand the necessity of air travel security and screening. We do not, however, understand why a gender marker comparison must be a requirement in order to determine an individual’s identity, and why a person whose gender defies stereotypes and expectations (physical or otherwise) should be technically vulnerable to a breach of their Charter right to travel.”

The Trans Equality Society of Alberta (TESA, FB link) has sent a letter to the Minister of Transport and to Transport Canada, as well as to media who may be interested in the issue.  TESA’s full release and letter follow below the fold.

Articles have also addressed the issue in the Huffington Post, the Toronto Star, Xtra (including a response from Transport Canada and letter from NDP MPs Randall Garrison and Dany Morin) and The Washington Post, Yagg.com (en Francais), among others.

As people write to the Minister of Transport and to Transport Canada, I’d like to remind people to be clear and also be civil.

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FOR IMMEDIATE RELEASE — Tuesday, January 31, 2012 — EDMONTON

NEW REGULATIONS POTENTIALLY BAR SOME TRANS CANADIANS FROM AIR TRAVEL

The Trans Equality Society of Alberta (TESA) is deeply concerned that amended wording added to the Aeronautics Act in 2011 could potentially expose some transgender and transsexual Canadians to undue scrutiny and hardship in airports or even prevent them from being able to travel by air.

Every citizen of Canada has the right to enter, remain in and leave Canada, as per Section 6 (1) of the Charter of Rights and Freedoms.[1]  The regulatory changes made to the Aeronautics act on July 29, 2011 pose a serious limitation to some citizens’ right to travel.  Section 5.2 (1) of the revised Act reads:[2]

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.

Most Canadian provinces require evidence of genital reconstruction surgery before allowing the change of gender markers on foundational documents.  Standards of care call for a minimum of one year living as one’s identified gender before the required procedure can occur (two years in some provinces, including Ontario).  This is further complicated by the fact that some provinces have removed coverage for this surgery from their health coverage, so some individuals can be trapped indefinitely with incongruent gender markers on their identification.

Section 5.2 (2) does seem to provide a medical exemption for some medically-tracked transsexuals, although the way it’s worded seems to make it apply only to a discrepancy between the photograph and appearance — discrepancies involving the gender marker on documentation are not specifically addressed.  This exemption, however, is provisional on providing documents certifying them as transitioning toward surgery.  As not all transsexual men and women undergo a medical process and others may not be aware of the requirement or be able to afford medical fees for such a letter, there will inevitably be people who will be unfairly denied passage.  Some people are unwilling or medically unable to undergo a major medical procedure, or distrust health care professionals.

Additionally, transgender and cisgender (non-trans) Canadians who dress or otherwise present in a way that doesn’t meet gender stereotypes or expectations can be singled out.  Physically intersexed people who also have medical conditions but don’t always have ongoing consultations with medical professionals as a consequence could also be targeted by the regulation.

As it stands, the legislation stipulates that an airline is in violation of federal law if it allows someone deemed to not meet the subjective criteria in 5.2(1)(a) and 5.2(1)(c) to board a plane.  This puts the onus on airline staff to interpret the regulation liberally.

“Gender-based profiling is based on an entirely speculative presumption about who might be a potential terrorist, rather than any real incidents,” said Mercedes Allen, who sits on TESA’s Board of Directors, “and requires a subjective value judgment which is not otherwise clarified.  While we are not aware of anyone who has been affected by these unnecessary and undefined changes as of yet, regulations are not always implemented immediately, and the wording does seem to make a denial of travel inevitable.”

We urge the Honourable Denis Lebel, Minister of Transport, Infrastructure and Communities and Transport Canada to reconsider these passages in a way that is not prohibitive on the basis of gender identity or gender expression.  TESA would be willing to discuss the matter further with Mr. Lebel and assist however we can in devising a solution.

The Trans Equality Society of Alberta was formed in 2009 in response to several issues that transsexual and transgender Albertans face.

[1] http://laws.justice.gc.ca/eng/charter/page-1.html#l_I:s_6

[2] SOR/2011-156, Regulations Amending the Designated Provisions Regulations and the Identity Screening Regulations, P.C. 2011-830 http://www.gazette.gc.ca/rp-pr/p2/2011/2011-08-17/html/sor-dors156-eng.html

CONTACTS
Edmonton:
Jan Buterman, board chair

Calgary:
Mercedes Allen

–30–

  1. Hi Mercedes, thanks for writing a nice, level-headed comment on this issue. It’s good to get away from the drama.

    One thing I will say is that this issue helps to clarify in my mind the point that the ultimate answer really must be to remove gender markers from all identification. Until that’s done, I think things like will keep popping up from time to time.

    • dentedbluemercedes
    • February 2nd, 2012

    That would be the ideal approach. It’s interesting to note that international standards on the matter allow for flexibility. From an excellent just-released Huffpo article (http://www.huffingtonpost.com/kyle-knight/canada-air-travel-transgender_b_1247602.html):

    “For international standards, we turn to the International Civil Aviation Organization (ICAO) and the Convention on International Civil Aviation. According to the ICAO, there are four mandatory personal data points on all international travel documents: name, date of birth, nationality, and sex. ICAO standards for Machine Readable Passports indicate that sex may be listed as unspecified, both in the part inspected by humans and in the part that is read by computers.”

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