Me, Myself, They

by Joshua M. Ferguson

  A wave of non-binary legal recognition across North America followed Keenan’s victories. In Canada, Gemma M. Hickey, a non-binary person living in Newfoundland and Labrador, became the first person to apply publicly for a non-binary birth certificate in their province and in the country as a whole. Seeing other non-binary people advocate for their legal recognition was the final piece of my own puzzle in reclaiming my identity. It was time to apply everything from my education and my past advocacy to contribute to this movement. I decided I had to act for myself.

  When I decided to apply for my non-binary birth certificate in Ontario, it felt as though I was summoning a new wave of strength and courage, but the truth is that I had been preparing myself for this fight for a long time. The application process itself was slow going. It took weeks to gather the many documents and materials necessary to challenge the absence of a non-binary birth certificate option. I paid careful attention to every detail to avoid making the kind of mistake the government could use to reject my application out of hand. I reviewed the paperwork meticulously, and I brought in experts to help me pull together the evidence required to attest to my change of sex designation from male to non-binary. The hardest part, for me at least, was having to ask my doctor to confirm my gender identity in an official letter — as if gender isn’t self-determined. Fortunately, she was amenable to confirming my change of sex designation and wrote me the letter — her first. The time it took to collect the various documents and double-check the details felt like a necessary part of the process; these were critical steps that were part of the challenge. My hope was that the government would see my attention to detail as a sign of the authenticity of my determination to effect change.

  During this time, I was living in Vancouver with Florian. It was easy enough to assemble and submit my application from a distance, but I decided that wasn’t going to be enough. I wanted to bring attention to the issue, since I knew that my application would challenge the system. This would be a significant moment, not only for me but for all non-binary people. So I decided to travel to Toronto to apply in person at the central Service Ontario office. I also decided to go public with my application, involving the media and posting about my story on social media. I gave the exclusive story to CBC News in Toronto the day before I submitted my application. For me, that was the point of no return for my privacy, yet it was a powerful return to myself.

  I applied for my non-binary Ontario birth certificate on May 12, 2017, making the explicit request for a non-binary designation by drawing a box on the application form and writing “male to non-binary” next to it. I won’t lie, it was terrifying to make the personal so public. Yet I felt a force, a power within me, and it was impossible to ignore. Walking into the Service Ontario office in person, and seeing my intention through, called on the entirety of my life’s experience. My voice carried with it every moment in my life when I spoke out against inequality, oppression, and abuse. I acted with everything in my mind, heart, and soul when I submitted my application. And I could feel past generations of trans warriors lifting me up through the process.

  In May 2017, as my fight for non-binary legal recognition in Canada began, I began to record my thoughts and feelings in a journal. We also started filming the process in the summer of 2017 to serve as footage for a documentary. Starting on the plane from Vancouver to Toronto, I wrote in an unfiltered way about my experiences over the next twelve months. I’ve included excerpts from some of these entries below.

  May 11, 2017

  I know there will be hate. There is always hate. People get scared when they don’t understand, and they redirect this fear onto the easiest target: me.

  I spent the day giving interviews. I imagine people driving in their cars, sitting at home, working in an office or a mechanics shop, listening to me speak about non-binary recognition, and hopefully ending their day with just a little more understanding and tolerance. I imagine parents going home and sitting down with their kids to discuss these ideas. I imagine families coming together around my words — perhaps even turning this tolerance into compassion for their children, their siblings, and their parents who are neither men nor women.

  Tomorrow is the day.

  May 12, 2017

  I did it. I applied for my non-binary birth certificate while juggling several CBC News segments in Toronto. I am too tired to write anything else now. I gave everything today. I want to make our society a better place for non-binary people. I don’t want them to have to cope with the incredible amount of stress, anxiety, and depression that results from being invisible.

  May 13, 2017

  I am on a train travelling through Napanee to Kingston. I wonder if I’ll look up through the window at the right time to see a view of my old family home. I used to watch the train from our back porch.

  I thought of something important today: The birth certificate issued to my parents shortly after my birth on July 10, 1982, was false. I have had to live with this lie for thirty-four years, and will have to put up with it for even longer if the Ontario government refuses to approve my application. I wonder how much this lie has contributed to my experiences with depression over my lifetime. Someone could argue that a birth certificate is merely a piece of paper and shouldn’t have such an effect on me, but that person is probably already accepted, recognized, and included in society. The thing is, I’m not.

  The birth certificate that I applied for yesterday is the truthful one — the one that I chose for myself, not what has been forced upon me by a system that fails to recognize my truth.

  May 29, 2017

  The anti-transphobia rally on Parliament Hill was symbolic for me. To turn a week of advocating for non-binary people in the public eye into action, standing on the hill in front of the media and over a hundred trans people and allies, was a moment that showed how my actions had come full circle. But I was paranoid almost the entire time. My story and my face had been everywhere. Standing there on the hill with MPP Cheri DiNovo, who has championed our community, I was worried that someone was going to ridicule me, assault me, harass me, erase me. I was thinking about protection, privacy, and shelter in those moments. How would I escape an attack? How would I deal with a verbal onslaught? This is how non-binary people often think in public, often when we have already put ourselves out there for scrutiny.

  We flew home in the evening after the rally. The first morning back in Vancouver made me realize that I wouldn’t be able to take a break from the press just yet. Cheri DiNovo questioned the Ontario Legislature, specifically the Minister in charge of birth certificates and Service Ontario, about my non-binary birth certificate application. The Minister’s official response indicated that the government was following my story and that they would conduct consultations this summer and begin issuing gender-neutral birth certificates in 2018. This wasn’t good enough for me because, under Ontario law, I have a right to receive my non-binary birth certificate in the same amount of time as every other Ontarian, within six weeks of the submission of my application.

  I feel an enormous amount of pressure emanating from an axis of forces: governmental, societal, media-based, and even from my own family. Why wasn’t this announcement good enough? Should I just accept this as a positive response to my application and allow the government to take the time they need to implement their new policy? No, because all these forces focused on the headline instead of the deeper issue — that it is beyond time non-binary people are socially and legally recognized in Ontario.

  The attention that ensued from the national and international news elevated me to the status of a trans activist in Canada. I didn’t ask for that title, and in some ways I’m a little uncomfortable with it, as I never wanted to become a spokesperson for the community in the eyes of the media. But my initial goal to reclaim my identity through proper legal recognition had evolved into a responsibility to enact change for members of my community. I wanted to contribute to legal rec
ognition for non-binary people, not necessarily to be seen as a leader. In any event, there was no turning back now. I had embarked on a path to disrupt the status quo that recognized only “M” or “F” for sex and gender in Canada — and beyond. It still overwhelms me to think about the responsibility that came into my life from that day forward. People all over the country, and all over the world, began to contact me to share their stories and their gratitude for my advocacy. Their feelings of erasure fuelled my determination to keep moving forward. And their supportive and appreciative messages kept me optimistic and hopeful.

  I had been motivated to apply for my non-binary birth certificate out of my own personal feelings of invisibility and erasure; I wanted to make myself visible in the eyes of the law. But after I went public, the non-binary community was constantly on my mind — non-binary children, their families, and non-binary adults who experienced the effects of erasure over and over again. I saw their faces in front of me in their social media profiles and sometimes in person. I knew I had to take this responsibility seriously. I’m not perfect, and I probably haven’t met the expectations of every single non-binary person and never will, but I know that I have made a difference for many people.

  I want to be totally clear: I am just one of many non-binary people who have contributed to the realization of non-binary legal recognition. To illustrate this point, I’ve included a timeline at the end of this book (see page 249) to highlight some of the monumental steps taken by our community during the period from June 2016 to October 2018. I recommend you give it a read. It’s really quite impressive!

  The extensive legislation that was passed in the United States and Canada from 2016 to 2018 is remarkable — revolutionary, even. However, neither country yet has comprehensive, nation-wide, legal recognition in place for all of its non-binary citizens. Elsewhere in the world — in Australia, Germany, India, Nepal, New Zealand, Pakistan, the Netherlands, Austria, and Taiwan — laws have been implemented to recognize all non-binary citizens, whether in the form of the “X” designation (the acceptable and widely used short form, often called gender-neutral, for gender and sex that is neither M or F) on official government documents, full non-binary designation, or a specific cultural recognition, similar to that which hijra people in India have received.

  * * *

  • • •

  While waiting for the official response from the Government of Ontario in the summer of 2017, I received a letter from the province’s Deputy Registrar General. I opened it on the edge of nerves. And then my heart sank, and I felt a wave of sickness. The letter outlined that the government had decided to deny, or possibly delay, my change of gender designation from male to non-binary. It was difficult to determine what exactly they were saying because little detail about their plans for a new policy were provided.

  I found out that my application was marked as delayed. Ontario had placed my application on “pending” status while they conducted consultations and a policy review to “get it right.” Adding a non-binary option on Ontario birth certificates wouldn’t impact the majority of Ontario residents, so what did “get it right” really mean? The designation should be available to non-binary Ontarians who need their gender marker to match their true gender identity, so the government’s excuse at the time troubled and further distressed me. A debate ensued about non-binary birth certificates in the province.

  The Angus Reid Institute was tasked with conducting a survey of Ontarians to determine public opinion on the issue, and it cited my application as part of what was informing the sudden and vital discussion about non-binary birth certificates. While this was happening, I retained a team of Ontario-based lawyers — Michelle Thomarat of Dewart Gleason, and Mika Imai of Symes Street & Millard — to challenge the delay. Since Toby’s Law was introduced in 2012 by my champion Cheri DiNovo, the Ontario Human Rights Code had explicitly protected gender identity, gender expression, and sex as prohibited grounds for discrimination, and since my application was denied on the basis of sex, gender identity, and gender expression, it was in conflict with the very law in place.

  Then, in August 2017, Canada’s federal government announced that it would finally start to recognize non-binary people with “X” designations on Canadian passports. Canada was catching up to the rest of the world. While this policy was being implemented, the federal government planned to provide an interim solution in the form of a temporary observation indicating that the sex marker “M” or “F” on the front page of the passport should be read as “X” or “unspecified.” It was a landmark moment for non-binary visibility in Canada.

  I visited the central passport office in Vancouver on the first day that the “X” gender observation became available to Canadians. The Passport Canada employees at that office explained that I was the first person in their Vancouver office to apply for the new observation. While that was exciting, I soon discovered that they were telling me this to excuse their need to involve managers to make sure they were processing my application correctly. I felt paranoid the entire time I was in that passport office. I thought that somehow I would be rejected, even though the new policy was officially in place.

  That same month, since I resided in Vancouver, I felt that taking action in British Columbia was the next step: I wanted the short-form non-binary designation “X” on my combined health card and driver’s licence. The “M” marker on my ID had been haunting me for too long. It was the obvious next step to achieving full recognition as a non-binary person on all my forms of identification, while waiting for Ontario’s delay to play out. The New Democratic Party (NDP) had recently formed a minority government in British Columbia. As the NDP are known for their progressive social democratic politics, I assumed that the government would react swiftly and favourably to my application. The ruling party’s response to my application — which was a failure to respond — ignited another fight for legal recognition in a second province.

  As a goodwill gesture, I sent a letter to prominent members of the NDP minority government months before publicly applying for my “X” designation. The only response I received was from one minister who told me that a consultation on the issue was underway and to let them know if I wanted to be kept up to date. The government’s lack of response to my letter was heartbreaking since I had always supported and worked with the NDP, both federally and provincially, in my advocacy. I had even met Jack Layton while he was the leader of the party. So I repeated my Ontario plan in British Columbia. I publicly applied for my “X” designation in August 2017. I had to wait twenty business days for an official response from the B.C. government after submitting the application.

  In the meantime, I took legal action with my team in Ontario by filing a complaint with the Human Rights Tribunal four months after my non-binary birth certificate application had been delayed. In an overwhelming convergence, my Ontario and B.C. legal fights both escalated on the same day. On September 28, 2017, the day that I submitted the human rights complaint in Ontario, the B.C. government outright rejected my application for correct non-binary markers on my provincially issued identification, which I found out only by contacting them directly to query the status of my application.

  September 28, 2017

  Last night was full of worry. I had planned to be interviewed about the filing of my human rights application in the Human Rights Tribunal of Ontario for my non-binary birth certificate. What I didn’t know was that I would also have to re-focus on my application for my “X” gender markers in British Columbia. I didn’t know that a simple phone call to inquire about the status of my application twenty-one days after it was registered would be met with such a ferocious and unkind denial of my application and my right to receive my “X” markers on these forms of identification. When I called the Health Insurance system, the first person I spoke with told me that my application had “missing information.” This representative was perplexed because typically they send out letters to applicants to
inform them about the “missing information,” but no such letter had been sent out to me. My call was escalated to an enrolment specialist who seemed emboldened by what she read in front of her on the computer screen. She firmly noted that “X” is simply not possible on B.C. identifications and that there are only two options available to me: male and female.

  I woke up yesterday facing what has oddly become a familiar experience in my life lately — dealing with the media’s questions on something very personal, my gender identity and my decision to take legal action against a government entity. It is necessary to go public because non-binary people are so invisible and erased. My voice is my weapon to carve down the crumbling edifice that the government perpetuates by only counting people as male or female — nothing else. I could feel my emotions swelling — sadness, frustration, even anger overcame me. It is a dangerous moment when a government entity enacts gender-based discrimination. When this happens, some members of society can feel warranted to discriminate against non-binary people. As a non-binary trans person, I will continue to fight. My conviction is strong, but I need our governments to stand up, to join us in this fight, and to protect all of us.

  The rejection of my application in British Columbia left me feeling a deep distress. I decided to file a human rights application in the province, with lawyer Frances Mahon, to challenge the denial of my correct non-binary gender markers. It is easy to get lost in the process of the battle for legal change. The process consumes energy and attention, especially when the very thing I was fighting for seemed as though it was becoming more difficult and complex to achieve, with multiple legal challenges and advocacy efforts underway. I was trying to do my part in Canada to arrive at a place in society where people who are neither men nor women could be legally recognized and respected.

  For months, I waited for the governments to act; it felt like years. My human rights complaints argued that the government had breached my human rights on the grounds of sex, gender identity, and gender expression. But what was I supposed to do while I waited to be recognized? I’ve never been the most patient person, but I had to surrender to the process. Didn’t Ontario and British Columbia realize that each day with incorrect gender markers on my IDs not only exposed me to continued distress and anxiety but also contributed to the distress and anxiety of numerous other non-binary people?