Feds face human rights complaint over gender info with social insurance numbers

National Post
May 17, 2016
By Jordan Press

The federal government is staring down the possibility of being ordered to stop collecting gender information on Canadians as part of their social insurance number record.

The outcome is one possibility in an ongoing dispute in front of the Canadian Human Rights Tribunal over a piece of information that internal documents show isn’t central to identifying the owner of a social insurance number, or critical for preventing fraud.

A ruling from the tribunal would have a precedent-setting effect for the federal government, even as it takes steps to extend human rights protections to transgender Canadians in the form of legislation to be tabled Tuesday in the House of Commons.

The bill would be the latest attempt to make it illegal to discriminate against someone because of their gender identity and extend hate speech laws to include transgender persons.

But even on the eve of its introduction, the government appears no closer to making it easier to change the gender attached to a social insurance number without requiring the holder to go through a bureaucratic paperwork process.

Christin Milloy, the Toronto-based trans rights activist at the centre of the tribunal case, said there is no need for the federal government to collect and store information on sex and gender.

“It’s not necessary to identify an individual,” Milloy said of the gender field.

“Name and birthdate and mother’s maiden name - these things are enough and storing (gender) creates opportunities for discrimination and oppression of all transgender people and women.”

It has been almost five years since Milloy first downloaded a government form needed to make changes to a social insurance number record. The changes were simple: her address, legal name and an update to the gender field to female.

The sex or gender category on a social insurance number record is set at birth when a number is issued.

The department refused Milloy’s request, barring production of a new Ontario birth certificate.

Milloy launched a human rights complaint, saying that the department’s policy of using the sex designation at birth discriminated against transgender persons. She also noted that the information was not necessary to identify a number’s holder.

The Canadian Human Rights Commission agreed with Milloy, and sent the matter to the human rights tribunal for a hearing.

She and the department remain in mediation at the tribunal, although that process has been going on for more than a year. Milloy said she is confident there will be a resolution, but isn’t sure when that will happen.

“This is not just about me and my ID. This is about changing the system to be fair to everybody,” she said.

Confidentiality rules at the tribunal prevent her from discussing the details of the mediation.

Last year, Employment and Social Development Canada conducted a sweeping review of what would happen if it just dropped the “sex” requirement from the social insurance registry, consulting with at least a dozen other government departments, including Health Canada, the RCMP, and the Canada Revenue Agency.

The department has yet to respond to questions about the review.

Documents obtained by The Canadian Press under the Access to Information Act show the sex field in the social insurance registry is “used for gender-based analysis and data analysis, not for integrity purposes.”

The notes - dated June 2, 2015, and prepared for a meeting with counterparts at Citizenship and Immigration Canada - said some provincial governments are moving towards allowing identity documents like health cards and birth certificates to reflect gender identity, meaning the data in the sex field “could more accurately be referred to as ‘gender.'” That information then makes it into the social insurance registry.

Internationally, seven countries allow a third sex designation on their passports, including India, Nepal, New Zealand and Germany - something no government in Canada allows. Should that change, the documents suggest there would need to be more changes to the social insurance registry.