Court of Queen=s Bench of Alberta

Citation: C.F. v. Alberta (Vital Statistics), 2014 ABQB 237

Date: 20140422
Docket: 1203 05815

2014 ABQB 237 (CanLII)

Registry: Edmonton
Between:
C.F.

Applicant
- and -

Director of Vital Statistics

Respondent

Corrected judgment: A correction was issued on April 24, 2014; the correction
has been made to the text and is appended to this judgment.
_______________________________________________________

Reasons for Judgment

of the
Honourable Mr. Justice B.R. Burrows
_______________________________________________________

[1] C.F., who describes herself as a “trans female”, seeks a declaration that her right to equal
protection and equal benefit of the law without discrimination, as guaranteed to her by the
Charter s. 15, was violated when the Director of Vital Statistics refused her application for a
birth certificate stating her sex to be female. She further seeks such remedy as will require the
Director to provide her with such a birth certificate.
[2] The relevant legislation in force at the time of C.F.’s application to the Director, the Vital
Statistics Act, RSA 2000, c. V-4 is no longer in force. It was repealed by the Vital Statistics Act,
SA 2007, c. V-4.1 which came into force by Proclamation on May 14, 2012, less than two
months after the Director refused C.F.’s application. In these Reasons I refer to the legislation in
force at the time of C.F.’s application as “the Old Act” and the legislation now in force as the
“New Act”. I will use the term “VSA” when it is unnecessary to distinguish between the Old Act
and the New Act.
C.F.’s Application to the Director of Vital Statistics
[3] C.F. is 23 years old. She was born with male genitalia and was given a conventional
male name. In childhood C.F. presented as a male, but considered herself female. When she
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reached adulthood, she took steps to transition to live as a member of the female sex. She
completed all of the steps which were within her power to accomplish the transition by early
2011. Since then she has lived and presented herself as a female.
[4] In June 2011 C.F. succeeded in her application to change her legal name from the
conventional male name she was given at birth to a conventional female name. She applied to
the Director for a birth certificate. The Director issued a birth certificate in her new name. The

2014 ABQB 237 (CanLII)

birth certificate, however, stated her sex to be “male”.
[5] C.F.’s efforts thereafter to obtain a birth certificate which recorded her sex as “female”
were unsuccessful. She was told that in order for the Director to change the sex on her birth
record from male to female, the Old Act, in s. 22, required that her anatomical sex structure be
surgically changed from male to female and that two physicians depose in affidavits that such a
change had taken place.
[6] Section 22 of the Old Act provides:
22(1) When a person has had the person’s anatomical sex structure changed to a
sex other than that which appears on the person’s birth certificate, the Director, on
production to the Director of
(a) 2 affidavits of 2 physicians, each affidavit deposing that the anatomical
sex of the person has changed, and
(b) evidence satisfactory to the Director as to the identity of the person,
shall do either of the things referred to in subsection (2).
(2) If subsection (1) applies, the Director shall
(a) if the sex of the person is registered in Alberta, cause a notation of the
change to be made on the registration of it, and
(b) if the sex of the person is registered outside Alberta, transmit to the officer
in charge of the registration of births and marriages in the jurisdiction in
which the person is registered, a copy of the proof of the change of sex
produced to the Director.
(3) Every birth or marriage certificate issued after the making of a notation under
this section shall be issued as if the registration had been made with the sex as
changed.
[7] The equivalent section in the New Act, s. 30, provides:
30(1) When a person’s anatomical sex structure has been changed to the
opposite sex from that which appears on the person’s birth registration document,
the Registrar, on receipt of
(a) an affidavit from each of 2 physicians, each affidavit stating that the anatomical
sex of the person has been changed, and
(b) evidence as to the identity of the person as prescribed in the regulations,
shall amend the sex on the person’s record of birth and may, with the consent of
the other party to the marriage, amend the sex on the record of a subsisting
marriage, if any, of the person that is registered in Alberta.
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(2) Every birth or marriage certificate of the person referred to in subsection

(1) issued after amending the sex on the record under this section must be issued
as if the registration had been made with the sex as changed.
[8] C.F. has not had surgery to change her anatomical sex structure. She swears that she is
perfectly content with the anatomical sex structure she was born with. That she has male
genitalia does not cause her any difficulty in living in the gender she feels herself to be, female.

2014 ABQB 237 (CanLII)

[9] In December 2011 C.F. applied to the Director to exercise her statutory discretion to
correct the error as to her sex in C.F.’s birth record. This discretion is created by s. 24(3) of the
Old Act:
24(3) If, after a registration has been received or made by the Director, it is
reported to the Director than an error exists in the registration, the Director shall
inquire into the matter and, on the production of evidence satisfactory to the
Director verified by statutory declaration, the Director may correct the error by
making a notation of the correction on the registration without altering the
original entry.
The Old Act, in s.1, defines “error”:
(i) “error” means incorrect information, and includes the omission of
information.
[10] In the New Act the equivalent provision is s. 60:
60 If after a registration has been registered by the Registrar it is reported to
the Registrar that an error exists in the registration document, the Registrar shall
inquire into the matter and, on production of the prescribed proof of identity, an
affidavit and other evidence satisfactory to the Registrar and payment of the
prescribed fee may amend the registration document.
Section 1(h) of the New Act gives the same definition to “error” as s. 1(i) of the Old Act.
[11] With her Old Act s. 24(3) application C.F. filed a Statutory Declaration to which was
exhibited a signed statement in which she stated:
1. I am female.
2. I am a woman and I have lived as a woman since _____________. (date redacted
in the Record)
3. Everybody in my life knows me as a woman (for example, teachers, peers, family,
friends, my employer, colleagues, etc.). I introduce myself to new people as a
woman. I use public facilities designated for women.
4. My identity as a woman is permanent and complete and I will live exclusively as
a woman for the rest of my life.
[12] Also exhibited to the Statutory Declaration was a letter from a psychiatrist, L. Warneke,
M. D., FRCP (C) dated November 3, 2011 which stated:
I am a psychiatrist, fully licensed in the Province of Alberta. I have been
practicing psychiatry here for over thirty five years. I have developed a
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subspecialty interest and expertise in the area of Obsessive Compulsive Disorder,

as well as transgenderism, and I am recognized as an expert in both areas.
I assessed and confirmed that [C.F.] is transgendered (Gender Identity Disorder)
on August 10, 2010. The accepted medical management of this condition
involves the individual transitioning to living full time in their preferred gender
role, which in this case is female. [C.F.] has undergone a transformation to being

2014 ABQB 237 (CanLII)

full time in the female gender role for the rest of her life.
[C.F.] has been under the care of an endocrinologist, on referral from me. Her
female hormone levels are in the same range as they would be for an average
female.
[13] C.F. also filed extensive written submissions with her Old Act s. 24(3) application to the
Director. In them she set out in significant detail her personal history, the negative consequences
to her of her birth certificate being inaccurate as to her sex, her argument as to why surgery to
change the anatomical structure of her sex organs should not be required, and her argument as to
why the statement as to her sex in her birth certificate constituted incorrect information and was
therefore an error which it was within the Director’s Old Act s. 24(3) authority to correct.
[14] On March 21, 2012 the Director responded to C.F.’s application:
I am responding . . . to your request of December 7, 2011, for an amendment to
sex designation on your Alberta birth registration pursuant to Section 24(3) of the
Vital Statistics Act, RSA 2000 c. V-4. I have reviewed and considered your
submitted documents thoroughly and requested jurisdictional information from
my Canadian Vital Statistics colleagues.
I can advise that I am denying your application for a correction in registration
under Section 24(3). At the time of your birth, the birth registration form, a legal
document, was completed indicating a number of particulars including your date
of birth, the kind of birth, your birth weight and your sex. This event was
recorded based on the information provided on this form. The sex indicator on
your birth registration was completed based on evidence of your anatomical sex.
As the registration documents are completed directly after birth, the sex indicator
was completed indicating male based on the evidence at the time, and an error did
not occur.
In order to register a change of sex on your birth registration, an application under
Section 22 of the Vital Statistics Act will be required.
[15] If the Director’s refusal had been in the context of an application under New Act s. 60,
C.F. would have had a right of appeal to the Court of Queen’s Bench (New Act, s. 62). However
in the Old Act there was no statutory right of appeal from the decision from the Director’s
refusal of an Old Act s. 24(3) application.
C.F.’s Application for Judicial Review and Charter Relief
Judicial Review Grounds
[16] Accordingly, C.F. filed this application for judicial review on April 17, 2012. In the
commencing document she first sought judicial review on the basis that the Director:
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a. erred in denying her application though the evidence established that her birth record
contained inaccurate information.
b. erred in interpreting the error correcting provision of the Act as authorizing only the
correction of information which was in error when it was recorded and not
information which was in error because it was no longer accurate.

2014 ABQB 237 (CanLII)

c. breached her duty of fairness to C.F. by relying on materials of which C.F. had no
knowledge, not providing a copy of those materials to C.F., not giving C.F. an
opportunity to make submissions with regard to them, and not providing reasons for
her decision.
[17] C.F. did not rely on any of these points when she presented her application in Court
though she did not expressly or formally abandon them. Though particulars of the third point
were not plead, and though no arguments developing the point were presented, I expect that it
was the sentence in the Director’s letter in which she said she had consulted with her “Canadian
Vital Statistics” colleagues which prompted C.F. to raise that basis of complaint.
Charter s. 7 violation
[18] In the commencing document C.F. also sought a remedy on the basis that her Charter s.7
rights had been violated. She alleged that the Director read Old Act s. 24(3) as not permitting
her to correct the statement of C.F.’s sex in the birth registration document because she read Old
Act s. 22 as establishing the only situation in which a statement of natal sex in a birth registration
document could be amended. It could be amended only when the person’s anatomical sex
structure had been surgically changed. C.F. plead:
The Director’s interpretation coerces Ms. C.F. (and other trans people) into a
major surgery, because if she does not submit to Genital Surgery, Ms. C.F. will be
left unable to get an accurate birth certificate, and she will effectively be unable to
participate fully in society.
[19] C.F. plead that the Old Act, and especially s. 22 thereof, is inconsistent with Charter s. 7
in that it deprived her of liberty and security of the person by making it impossible for her to
have an accurate birth certificate unless she submitted to unwanted and potentially dangerous
surgery. C.F. did not pursue this ground in the written or oral presentation of her application,
though, again, she did not expressly or formally abandon it.
Charter s. 15 violation
[20] The grounds which C.F. did pursue in the written and oral presentation of her application
were founded on Charter s. 15(1). She plead that the Old Act, and especially s. 22 thereof, is
inconsistent with Charter s. 15(1) because: (Originating Application for Judicial Review, para.
29)
(a) The [Old] Act, and especially s. 22 thereof, operates so that non-trans people
born in Alberta are entitled to have a birth registration that accurately reflects
their lived sex, but trans people (a group to which Ms. C.F. belongs) are
forced to have birth registrations that do not reflect their lived sex unless they
submit to Genital Surgery.
(b) This distinction constitutes discrimination, which perpetuates prejudice and
stereotyping, on the basis of the following grounds or a combination of any of
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them: sex, mental or physical disability, gender identity, and trans status (the
quality of being trans or not).
[21] She also plead that the contravention of Charter s. 15(1) is not reasonably justifiable in a
free and democratic society.
Position of the Province

2014 ABQB 237 (CanLII)

[22] Alberta takes the position that neither the Old Act nor the New Act infringes C.F.’s
Charter s. 15(1) equality rights. C.F. has not shown that the VSA creates a distinction based on a
s. 15 ground or an analogous ground, which distinction creates a disadvantage by perpetuating
prejudice or stereotyping.
[23] In particular, the section relating to genital surgery does not infringe s. 15(1) rights. Far
from being discriminatory, the section provides a benefit to a disadvantaged group –
transgendered persons who have had genital surgery. If the section discriminates against
transgendered persons who have not had genital surgery, such as C.F., that discrimination is
permitted by s. 15(2), because the section is a law that has as its object the amelioration of
conditions of disadvantaged individuals, i.e. transgendered persons who have had genital
surgery.
[24] If contrary to the position taken by Alberta, it is held that C.F.’s s. 15(1) equality rights
have been infringed, Alberta does not invoke Charter s. 1. It does not seek to establish that the
limitation of C.F.’s s. 15(1) rights, if there is one, is a reasonable limit prescribed by law which
can be demonstrably justified in a free and democratic society.
C.F.’s Response to the Position of the Province
[25] C. F. does not assert that the discrimination of which she complains is caused by the
genital surgery section except as it is part of a system of regulation of birth registration
documents and the issuing of birth certificates based on them. It is that system of regulation that
discriminates. It discriminates in how it treats a transgendered person who has transitioned their
life to their felt sex, but has not had genital surgery. The VSA’s system of regulation of birth
registration documents does not permit amendment of the birth registration document to record
the fact of the transition – that the person is living their felt sex and not their natal sex. As a
result, under the VSA regulation system, a birth certificate stating their sex to be the sex they feel
and live in cannot be issued.
[26] The VSA thus requires transgendered persons like C.F. to endure the hardships which
result from having a birth certificate which records their sex as other than the sex into which they
have transitioned.
[27] There would be no discrimination if New Act s. 30 applied to all transgendered persons
whether or not they had surgery – or if the Director interpreted the statement on a transgendered
person’s birth record as to their natal sex to be incorrect information capable of correction under
s. 60. Absent either of those things, however, the New Act discriminates against a transitioned
transgendered person on the ground of sex (their transsexual identity) or disability (which, in
C.F.’s case, Dr. Warneke called “Gender Identity Disorder”).
The Issue
[28] In my view, the Province’s attempt to invoke Charter s. 15(2) to insulate the birth
registration system as it affects transgendered persons from Charter s. 15(1) scrutiny
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misconceives the real focus of C.F.’s application. The accommodation the genital surgery
section (Old Act, s. 22; New Act, s. 30) offers to transgendered persons wishing or willing to
undergo surgery to change their anatomical sex structure is entirely irrelevant to transgendered
persons, like C.F., who do not so wish or who are not so willing. It is not that section which
creates the discrimination of which C.F. complains. The discrimination results from the birth
registration system not recognizing or accommodating the fact that she has transitioned and is

2014 ABQB 237 (CanLII)

now female. That discrimination exists, C.F. alleges, quite independently of the genital surgery
provision. It does not result from that provision, though in some respects it is exacerbated by
that section.
[29] In my view the issue is properly framed as being whether the system of regulation of
birth registration documents and the issuance of birth certificates established by the VSA
infringes C.F.’s Charter s. 15(1) right to equality – whether that system of regulation
discriminates against transgendered persons other than those who have had genital surgery, in a
manner which offends Charter s. 15(1).
Charter s. 15(1)
[30] In R v. Kapp [2008] 2 S.C.R. 483 McLachlin C.J. and Abella J. identified a two part test
for determining whether or not legislation infringes Charter s. 15(1):
The template in Andrews, as further developed in a series of cases culminating in
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497,
established in essence a two-part test for showing discrimination under s. 15(1):
(1) Does the law create a distinction based on an enumerated or analogous
ground? (2) Does the distinction create a disadvantage by perpetuation prejudice
or stereotyping?
Part 1: A distinction made on an enumerated or analogous ground
[31] The first part of the test will involve determining both whether the law creates a
distinction and whether the distinction is based on one of the grounds listed in s. 15(1): race,
national or ethnic origin, colour, religion, sex, age, or mental or physical disability, or a ground
analogous to one of the listed grounds.
Part 2: Disadvantage through perpetuation of prejudice or stereotyping
[32] As to the second part of the test, McLachlin C.J. and Abella J. noted that the focus should
be on the impact of the impugned law on the “human dignity” of the group alleged to have been
treated unequally. They underlined the importance of an analytical focus on combatting the
perpetuation of disadvantage and stereotyping. They said:
Under s. 15(1), the focus is on preventing governments from making distinctions
based on the enumerated or analogous grounds that: have the effect of
perpetuating group disadvantage and prejudice; or impose disadvantage on the
basis of stereotyping.
XY v. Ontario (Minister of Government and Consumer Services), [2012] O.H.R.T.D. No. 715
[33] The issues raised by C.F. were relatively recently considered by Vice-Chair Sheri D.
Price of the Ontario Human Rights Tribunal. The Tribunal’s decision presents a very useful
analysis.
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[34] The Ontario Vital Statistics Act, R.S.O. 1990, c. V.4, s. 36, like s. 30 of the New Act,
provided that a person could obtain a birth certificate stating their sex to be other than their natal
sex by providing certificates from two doctors stating that the person had undergone genital
surgery. As in C.F.’s case, a transgendered person who did not have genital surgery could not
obtain a birth certificate stating their sex to be their lived sex. XY, a transgendered woman who
was born male, had surgery, provided the required certificates, and was given a birth certificate

2014 ABQB 237 (CanLII)

which stated her sex to be female. She complained under the Ontario Human Rights Code that
the requirement that she have the surgery in order to obtain a birth certificate which accurately
stated her sex, infringed her right to equal treatment without discrimination on the basis of sex
and/or disability.
[35] Providing extensive reasons for doing so, Vice-Chair Price of the OHRT held that the
requirement that Ontario birth certificates reflect the sex assigned at birth unless the person has
had genital surgery:
- resulted in distinct and disadvantageous treatment of XY on the basis of her status
as a transgendered person.
- had a distinct and disadvantageous effect on XY on the basis of her status as a
transgendered person, which, as it is a characteristic in respect of her sex and/or a
disability, is a prohibited ground of discrimination under the Ontario Human
Rights Code.
- is substantively discriminatory because it exacerbates the situation of
transgendered persons as a historically disadvantaged group and thus perpetuates
their disadvantage.
- alternatively, is substantively discriminatory because it perpetuates stereotypes
about transgendered persons and their need to have surgery in order to live in
accordance with their gender identity.
Test Part 1: Does the VSA birth registration system create a distinction which is based on one
of the grounds listed in Charter s. 15(1) or an analogous ground?
[36] In XY the OHRT analysis began with the issue of whether discrimination based on a
person being transgendered is discrimination on a ground prohibited by the OHRC. Ontario
conceded that such discrimination is on the basis of disability, sex or both. The tribunal
observed that the concession was consistent with six decisions of human rights tribunals which it
cited and accepted the concession as determinative.
[37] There is no similar concession by Alberta in this case.
[38] In my view there can be no doubt that the VSA birth registration system creates a
distinction which is based on sex. The system of regulation of birth registration, including the
system for the issuance of birth certificates, treats transgendered persons differently than a) non-
transgendered persons and b) transgendered persons willing to undergo genital surgery. Persons
in either of the latter two groups can obtain a birth certificate which states their sex to be the sex
they live. However persons in the first group, transgendered persons, cannot obtain a birth
certificate which states their sex to be the sex they live.
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[39] Further in my view, there can be no doubt that the distinction created by the VSA birth
registration system is based on a ground listed in Charter s. 15(1). A distinction drawn between
a person with male genitalia who lives as a male and a person with male genitalia who lives as a
female is beyond question a distinction made on the basis of sex. Alternatively if “sex” in
Charter s. 15(1) is interpreted so narrowly as to exclude the characteristics of transgendered
persons that make them transgendered, then, at very least, the distinction is made on a ground

2014 ABQB 237 (CanLII)

analogous to sex.
Test Part 2: Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping?
[40] The record includes the affidavit of Dr. Dan Karasic, a Clinical Professor of Psychiatry at
the University of California San Francisco. Dr. Karasic’s evidence speaks to the disadvantage,
vulnerability, stereotyping, and prejudice suffered by transgendered persons.
[41] Dr. Karasic has worked in transgender care since 1991. He is a psychiatrist for the
Transgender Live Care Program and the Dimensions Castro Mission Health Center, and at the
UCSF Alliance Health Project which serves LGBT and HIV positive patients. He is a
Distinguished Fellow of the American Psychiatric Association, and is on the APA Work Group
on Gender Dysphoria. He consulted with authorities in Sweden on their requirements for
amending the legal records of transgendered people. He consulted with the United Nations
Development Programme on transgender care internationally. He provided evidence in the XY
case.
[42] Dr. Karasic’s evidence here included information about transgender people and
transgender health care. He stated that only a small minority of transgendered persons have
actually had surgery to alter their bodies so that they conform more closely with their felt sex.
For many this is because of difficulty accessing the surgery, but for others it is because they are
comfortable with their genitals and prefer not to have surgery.
[43] Dr. Karasic’s evidence also discussed the importance to the success of a transgendered
person’s transition to living in their felt sex, of access to legal documents which state their sex to
be the sex in which they live. He said:
. . . some trans people do not require surgery, but still benefit from social
transition to the sex associated with their gender identity.
Such social transition generally requires a change in identification and other legal
documents in order to reduce the risk of discrimination and violence and to
promote one’s dignity, among other reasons.
[44] He further noted that the American Psychiatric Association’s Board of Trustees has:
. . . approved a position statement stating that transgender people, among other
discriminatory hardships, “have difficulty revising government identity
documents” and urged “the repeal of laws and policies that discriminate against
transgender and gender variant individuals.”
[45] Finally he deposed:
Most transgender people do not have genital surgery, yet all have a need to live
unencumbered by violence, harassment, and discrimination. Many surveys
(including the National Transgender Discrimination Study) have demonstrated
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that transgender people suffer levels of discrimination, harassment, and violence

unmatched by other minority groups.
This discrimination results in high rates of unemployment and poverty.
[46] In XY Vice-Chair Price referenced Dr. Karasic’s evidence before her on the same subject.
She said: (paras. 164 and 165)

2014 ABQB 237 (CanLII)

The applicant argues that transgendered persons are a historically disadvantaged
group, and I agree. In my view, it is beyond debate that transgendered persons
such as the applicant are a historically disadvantaged group who face extreme
social stigma and prejudice in our society. This is a notorious fact and it is
appropriate for the Tribunal to take notice of it. . . .
If I did have any doubt about the disadvantaged position of transgendered persons
in our society (which I did not), it would have been removed by Dr. Karasic’s
uncontradicted and unchallenged testimony about some of the difficulties facing
transgendered persons. Specifically, Dr. Karasic testified that transgendered
persons as a group tend to face very high rates of verbal harassment and physical
assault and are sometimes even murdered because of their transgendered status.
Dr. Karasic also testified that it is very difficult for a transgendered person to find
employment, that there are very high rates of unemployment among
transgendered people generally, and that many transgendered people are fired
once they are exposed in the workplace as being transgendered. He testified that
he himself has had “many” highly skilled and college-educated transgendered
patients with very promising professional careers who were unable to find
employment upon transitioning to their felt gender, sometimes ending up in
homeless shelters. In addition, Dr. Karasic testified that suicide attempts and
substance-related disorders are commonly associated with gender identity
disorders. During his testimony, Dr. Karasic referred a couple of times to the
ridicule which transgendered persons often experience. He testified that the fear
of being ridiculed tends to limit transgendered persons’ outside activity. Dr.
Karasic described the social stigma attached to being transgendered as “pretty
severe”.
[47] Alberta’s birth registration regulation system pursuant to which the only birth certificate
possible is one stating a person’s sex to be the sex observed at their birth, contributes
substantially to the discrimination suffered by transgendered people. This is demonstrated by
materials filed by C.F. both in her application to the Director and on this application.
[48] C.F. details the steps she took, having changed her name, to try to obtain identification
documents which stated her sex to be female. Some of the reactions and treatment she received
from agents of both the provincial and federal governments were insensitive at best. She
frequently discovered that the birth certificate statement of sex is taken as the exclusive
authority. Other documents and registrations rely on it and will not deviate from it.
[49] In other instances, for example when C.F. applied for a congruent Alberta Health card,
officials were prepared to issue a card which identified her as female on the understanding that
she would be having surgery in the near future. Instances of this type required C.F. to discuss
her status as a transgendered person and the state of her genitalia with strangers. In her affidavit
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C.F. described her attendance at an Alberta Health registry to obtain a congruent Alberta Health
card:
Throughout this interaction, two staff worked to process my request. They talked
about me between each other and one of them referred to me as “she” and the
other one referred to me as “he”. It was pretty offensive, and also kind of surreal.
Overall, the whole process took well over an hour and I left feeling pretty

2014 ABQB 237 (CanLII)

offended with the questions I had been asked (whether I had had surgeries) and
with the fact that one of the staff repeatedly misgendered me.
However, I recognize that this situation was caused not by uneducated staff
members but rather by Alberta’s surgery requirement, which creates a climate
where asking about genitals and proof of surgery is the norm and is acceptable.
Indeed, because of Alberta’s surgery requirement, transgendered people’s genitals
are essentially a form of public property; it’s open to anybody to ask about them,
because they are what defines somebody’s sex, according to Alberta.
[50] To obtain a Canadian Passport which states her sex to be female, the birth certificate
which C.F. must provide with her passport application must state her sex to be female. C.F. has
recently obtained employment with a U.S. company. She does her work online from Canada.
She anticipates, however, that she will be required to attend meetings at least once a year in the
U.S. or a variety of other countries around the world (some of which, she deposes, are known to
be potentially unsafe for transgendered people). She has not told her employer that she is
transgendered or that she has no passport. The discriminatory effect of the VSA birth registration
system extends to the imposition on C.F. of limitations of her mobility significantly greater than
experienced by other Canadians.
[51] In her affidavit C.F. summarized the discrimination visited upon her as follows:
Obtaining congruent documents is very important to me, both emotionally and
socially. The fact that I am transgender should be a very small part of my life. I
need congruent documents so I can just move on with my life and get back to [my
principal professional interest] and my other interests. Instead, I have a birth
certificate that legally “marks” me as incomplete and not-really- female, and
which confirms that in the eyes of the law, I am a second-class citizen,
undeserving of having my identity as female recognized. This means it is
impossible for me to move on.
[52] Alberta’s response to C.F.’s evidence and submissions commenced as follows:
In response, Alberta states that giving a transgendered person an official
government document with a sex designation which is dissonant with their gender
identity does not convey any message about the validity of a person’s gender
identity – it simply reflects known facts determined at birth. Insisting on only
certifying the record of sex determined at birth conveys the message that the
historical facts of birth are important. Changing the facts as known and recorded
at birth to reflect a subsequently developed gender identity would send the
message that there is something shameful about a birth sex that is inconsistent
with a gender identity, and in need of correction, when the inconsistency is in fact
an integral part of the transgendered person’s identity. In short, altering the birth
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record to conform to a subsequently developed gender identity sends the message

that transgendered people need to hide (or need to be ashamed of) their true
identity as transgendered persons who identify with the opposite sex.
[53] This response is, to say the least, remarkable. I reject it.
[54] Alberta’s response begs several questions. Why is it important that a person’s principal

2014 ABQB 237 (CanLII)

identity document state their sex to be the sex recorded at their birth, even when they are living
life in the other sex? What possible harm could flow from C.F.’s birth certificate stating that her
sex is the sex she is living? When asked, at the presentation of this application, how it could
possibly matter that a person born male, but who has transitioned and lives female, have a birth
certificate that says they are female, Counsel for Alberta could offer no answer.
[55] Alberta has for several decades issued birth certificates for persons who have had genital
surgery stating their sex to be different from the sex recorded at their birth. The level of
importance which attaches to the “historical facts of birth” is clearly not so high as to exclude an
exception for transgendered persons.
[56] Further, and more troubling, Alberta’s response, quoted above, itself demonstrates the
very stereotyping of which C.F. complains. Alberta suggests that the impugned legislation
avoids sending the message that there is something shameful about the inconsistency between a
transgendered person’s birth sex and their felt sex. It further avoids sending the message that
transgendered people need to hide or be ashamed of their birth sex. This amounts to Alberta
suggesting to transgendered people that the prejudice, stereotyping and vulnerability they feel
either do not exist or are insignificant. This response indicates to transgendered persons, such as
C.F., that though their fellow human beings are all either male or female, and members of society
understandably think in only those terms, they should fearlessly “come out” as members of a
third sex – a sex which is neither male nor female but is “inconsistent” – and expect to be
accepted without question.
[57] Alberta’s response does not appear to appreciate that C.F. like everyone else accepts that
there are but two sexes. She does not consider herself a member of a third sex. She considers
herself female. She has provided independent evidence that she lives female, and is genuine in
her belief that she is female. She seeks nothing more than that Alberta respect and not frustrate
her decision to live her felt gender.
[58] Alberta’s response illogically equates a “need to hide” with a “need to be ashamed”.
Transgendered persons encounter disadvantage, prejudice, stereotyping, and vulnerability
because their felt sex is not the sex recorded at birth. They should not be ashamed of their
circumstances. C.F. is clearly not ashamed of hers. However, so long as the rest of society does
not fully accept that transgendered persons are entitled to live their lives as they wish, and
presents impediments to their doing so, transgendered persons unfortunately may need to hide
their circumstances.
[59] The VSA birth registration system, and in particular the parts of it which relate to the
issuing of birth certificates contribute to the disadvantage experienced by transgendered persons
by perpetuating the prejudice and stereotyping to which they are subject.
[60] I find that both parts of the test are satisfied. In that it does not permit the issuance to
C.F. of a birth certificate which records her sex as female, the VSA infringes C.F.’s Charter s.
15(1) right to equal protection and benefit of the law.
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Remedy
[61] Constitution Act, 1982, s. 52(1) provides
The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.

2014 ABQB 237 (CanLII)

[62] Charter s. 24(1) provides:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
[63] C.F. has established that her Charter s. 15(1) rights have been infringed by the VSA in
that its provisions do not permit the issuance to her of a birth certificate which records her sex as
female.
[64] The VSA is in that regard inconsistent with the provisions of the Constitution of Canada
and is, to that extent, of no force or effect.
[65] C.F. is entitled to a personal remedy under Charter s. 24(1). I direct that within 30 days
of this decision the Director of Vital Statistics issue to C.F. a birth certificate which records her
sex as female.
[66] In making that direction I note that the materials before me include both C.F.’s evidence
and medical evidence establishing that C.F. has transitioned and is living as a female. As
previously noted, psychiatrist Dr. L. Warneke stated:
I assessed and confirmed that [C.F.] is transgendered (Gender Identity Disorder)
on August 10, 2010. The accepted medical management of this condition
involves the individual transitioning to living full time in their preferred gender
role, which in this case is female. [C.F.] has undergone a transformation to being
full time in the female gender role for the rest of her life.
[67] I am satisfied that C.F.’s self-identification as a female is real and that her intention to
live the rest of her life as a female is genuine.
Costs
[68] C.F. requested that the Court entertain submissions as to costs after deciding the
application. Subject to what C.F. and Counsel for Alberta might submit, it appears that C.F. is
entitled to costs. Hopefully the parties will be able to come to an agreement in that regard. If
they cannot they may make arrangements to speak to costs.

Heard on the 17th day of January 2014.

Dated at the City of Edmonton, Alberta this 22nd day of April 2014.

B.R. Burrows
J.C.Q.B.A.
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Appearances:

C.F. appeared without counsel

Lillian Riczu

2014 ABQB 237 (CanLII)

for the Respondent
 Page: 15

_______________________________________________________

Correction of the Reasons for Judgment

of
The Honourable Mr. Justice B.R. Burrows
_______________________________________________________

2014 ABQB 237 (CanLII)

The word “insolate” in the first line of para. 28 has been changed to “insulate”.