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Locating the Trans Legal Subject in Canadian Law: XY v. Ontario

Jena McGill

University of Ottawa - Common Law Section

Kyle Kirkup

University of Toronto, Faculty of Law


(2013) 33 Windsor Review of Legal and Social Issues 96

The 2012 decision of the Ontario Human Rights Tribunal in XY v. Ontario is the most recent in a rising tide of legal decisions relevant to the lives of trans Canadians. In XY, the Tribunal concluded that the Vital Statistics Act requirement that an individual seeking to change the sex designation on his or her birth registration supply medical certificates confirming that he or she has undergone “transsexual surgery” was discriminatory. This article identifies and critically analyzes the representation of the trans legal subject in the XY decision. The paper begins by situating the decision in its broader context, tracing the emergence of the trans subject in Canadian antidiscrimination law over the past fifteen years. We examine the decision in XY, connecting it to previous jurisprudence to establish a model of how legal discourse functions to create a particular trans subjectivity. We point to three fundamental shortcomings of the dominant construction of trans subjectivity in law, arguing that legal discourse: 1) understands the trans subject as predominately determined by trans status, ignoring other aspects of identity or experience; 2) establishes trans subjectivity as an immutable identity category defined by a disconnect between sex and gender that the trans subject seeks to ‘remedy’; and 3) assumes the trans subject lacks the autonomy to self-define his or her gender identity and thus requires expert corroboration. The paper considers how the dominant trans legal subject constrains trans engagements with law by demarcating the lines of inclusion so that only certain trans subjects are visible in law, and by conditioning the kinds of arguments that are intelligible in legal forums. We conclude by calling for increased problematization of the dominant trans subject in legal discourse and in strategies designed to improve the lives of trans Canadians.

Number of Pages in PDF File: 45

Keywords: trans people, Human Rights, legal discourse, XY v. Ontario

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Date posted: May 2, 2013 ; Last revised: December 2, 2015

Suggested Citation

McGill, Jena and Kirkup, Kyle, Locating the Trans Legal Subject in Canadian Law: XY v. Ontario (2013). (2013) 33 Windsor Review of Legal and Social Issues 96. Available at SSRN: http://ssrn.com/abstract=2212902

Contact Information

Jena McGill
University of Ottawa - Common Law Section ( email )
57 Louis Pasteur Street
Ottawa, K1N 6N5

Kyle Kirkup (Contact Author)
University of Toronto, Faculty of Law ( email )
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