Oh, Canada: Your Law Barring Trans People from Airplanes Is Not Supported by International Standards

This week bloggers exposed a regulation passed in July that could effectively bar transgender, transsexual, and gender-variant people from boarding airplanes in Canada. While it is still unclear whether the regulations have affected any trans people at the airport, the policy as it is written is disquieting -- and asks us to think about how gendered documents affect movement.

There are two clauses of concern in Canada's "Identity Screening Regulations":

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

(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.

Crossing Borders

In a recent report, Human Rights Watch explains, "For many trans people, one of the most distressing consequences to having the wrong gender in their identity documents is that they repeatedly have no option but to reveal to perfect strangers ... details of a particularly intimate aspect of their private lives, namely that they are transgender."

International travel can be a high-risk experience for trans people, as it calls for multiple identity checks in high-security environments -- namely airports.

Paisley Currah and Tara Mulqueen explain that at airports, expectations of gender often reflect the "common sense" that gender is an unchanging biometric characteristic, or

that there is a perfectly harmonious relationship between the sex classification an individual is assigned at birth based on a visual inspection of the body (what one was), one's current "biological sex" (what one is), one's gender identity (what one says one is), one's gender presentation (what one looks like to others) and the gender classification on the particular identity document one proffers.

And when documents don't match expectations, it's an anomaly, which, Currah and Mulqueen argue, "is an event that automatically triggers higher levels of scrutiny."

Most countries that allow gender to be legally changed at all still require intense -- often medicalized and expensive -- processes to change gender markers on documents. Some countries, however, are allowing gender identity to be increasingly based on self-identification when it comes to travel documents.

These progressive policies complicate the Canadian regulation even more. What would Canada do with a passport marked "X"?

Marking Papers

Australian citizens are required to list their gender on passports as M (male), F (female), or X (unspecified). While changing gender on documents requires a certifying letter from a doctor, sex reassignment surgery is not required to issue a passport in the preferred gender. The letter from the medical practitioner must confirm intersex status or appropriate clinical treatment for gender transition. If unable to obtain a letter from doctor, citizens can apply for a Document of Identity with the gender marker field left blank, then complete the passport application.

In New Zealand, people have the option of changing the gender on their passports, also to M, F, or X. To get a name change, a Family Court must approve. However to obtain the gender change (including to "X"), citizens must simply submit a statutory declaration indicating how long they have been living in their current gender identity. The declaration must also promise that should the person's gender identity change in the future through a court process, a new application and full fees will apply in order to have the new gender identity recorded in the passport. Citizens are not required to change their name to apply for a change in gender (including the "X") passport.

India has issued passports to people who identify as a third gender, denoted by an "E" for "eunuch," since 2005. Nepal's Supreme Court established a third-gender category in 2007, and a third-gender passport case is currently pending in the Court. Bangladesh implemented a similar passport gender category in 2011. In line with what LGBT human rights experts support, all three South Asian countries rely on self-identification to determine gender on identity documents.

Policies such as Canada's, however, can be harmful in that they reinforce the assertion that if other countries won't recognize a third marker -- be it "E" or "X" -- then governments ought to not issue such passports.

Some countries do not allow legal gender change at all; some insist that gender appearance and performance match that expressed on travel documents; some require medical evidence to substantiate any discrepancy; and some require nothing more than self-identification to list one of not two but three gender markers.

So then how is gender standardized as bodies cross borders around the world?

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.

In the Visual Inspection Zone of the passport, the "sex" field must be filled in as follows: "Sex of the holder, to be specified by use of the single initial commonly used in the State where the document is issued and, if translation into English, French or Spanish is necessary, followed by a dash and the capital letter F for female, M for male, or X for unspecified."

In the Machine Readable Zone of the passport, sex must be marked as "F = female; M = male; < = unspecified." Here X is replaced with a "

If international travel document standards don't require a gender to be specified at all, then Canada's claim to such a strict match between appearance and documentation seems to go far beyond what is required in the name of security.

"Policing of gender in all forms -- written, assumed, expressed or hidden -- severely hinders transgender travelers from going from A to B," says Justus Eisfeld, co-director of Global Action for Trans* Equality. "While it is unlikely that any terrorists will be deterred by this silly piece of law, it violates all trans people's right to freedom of movement and travel."

Reading Genders

The task of legally assigning sex or gender to citizens has come up relatively recently, and often only in countries whose medical institutions have developed extensive technologies that can alter bodies.

Matching appearance to documents is too often based on arguments of common sense that gender classifications are obvious and clear, and common sense that these real classifications are uniform across administrative systems. Governments have a legitimate interest in knowing the sex or gender of their citizens -- how else would they implement sex segregation in prisons, an essential protection included in virtually all the world's detention standards, for example?

However, as international travel demonstrates, documents and the genders they list can indicate far more about the institutions that issue them than they do about the people carrying them, say, at the airport.

On Monday, Canada's Foreign Minister spoke in London about Canadian foreign policy values. He slammed Uganda's gay rights record, paid homage to the late David Kato, and, toward the end of the speech, declared, "We will speak out on the issues that matter to Canadians -- whether it is the role and treatment of women around the world, or the persecution of gays, lesbians, bisexual, or transgendered persons..."

If Canada's policy on gender and air travel was developed in the name of security, international standards clearly show that argument to be weak. And if Canada's government is going to push for LGBT rights in its foreign policy, it might consider allowing trans people to board planes within its borders.