The Harper Conservatives recently made a revision to the Aeronautics Act which potentially affects many trans (and cis / non-trans) Canadians... and could even ban some from air travel.  From the revised law:

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

• (a) the passenger presents a piece of photo identification and does not resemble the photograph;

• (b) the passenger does not appear to be the age indicated by the date of birth on the identification he or she presents;

• (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.

(2) Despite paragraph (1)(a), an air carrier may transport a passenger who presents a piece of photo identification but does not resemble the photograph if

• (a) the passenger’s appearance changed for medical reasons after the photograph was taken and the passenger presents the air carrier with a document signed by a health care professional and attesting to that fact; or

• (b) the passengers’s face is bandaged for medical reasons and the passenger presents the air carrier with a document signed by a health care professional and attesting to that fact.

5.3 (1) If there is a major discrepancy between the name on the identification presented by a passenger and the name on the passenger’s boarding pass, an air carrier shall compare the name, date of birth and gender on the identification with those of persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act.

(2) If the name, date of birth and gender on the identification are the same as those of a person specified to the air carrier, the air carrier shall immediately so inform the Minister.

Of particular concern is Sec 5.2(1)(c). This regulatory change went into effect as early as last summer, and so far, it doesn’t appear that there have been any reports of transsexual or transgender people being refused passage on an airline because of this change. It’s premature to call this a ban.  However, with the way the legislation is worded, it could easily become one.  Especially because by the letter of the law, if an airline allows a person to board whose appearance "does not appear to be of the gender indicated on the identification he or she presents," they could be in violation of federal law.

Regarding transsexuals, most Canadian provinces require evidence of genital reconstruction surgery (GRS) before allowing the change of gender markers on foundational documents (all of them, when it comes to birth certificates),  and some provinces do not fund this surgery. There is a limited use passport option available which may help.

There is a medical exemption which could provide an allowance for specifically transsexual individuals (although it unclearly refers to the photo requirement, rather than the gender marker requirement), though not all transsexual men and women are medically able or willing to undergo a major invasive surgery - others may forget, be unaware of the requirement or be unable to afford to pay the fee for a sufficient doctor’s letter (my doctor would charge $100 for such a letter under his current fee structure).  Additionally, requiring a medical document is a reversal of onus in which trans people are expected to prove that they’re not terrorists in ways that other travelers don’t.

There are also transgender-identified and other gender non-conforming people to consider.  Bearing in mind that the gender marker is being measured against a subjective assessment of a person’s gender, lookism has potentially entered the equation.  Scan-or-search procedures could also unfairly single out visibly intersexed people, who haven’t previously needed a medical letter for anything.

Trans people understand the necessity of air travel security and screening.  But why a gender marker comparison must be a requirement in addition to all other screening criteria (i.e. photograph comparisons) in order to determine an individual’s identity remains unknown.

Canada’s Parliament passed human rights legislation to include transsexual and transgender Canadians, but it died at the election call [1], before the bill could be given Royal Assent by the Senate.  An identical bill has been reintroduced into Parliament and could be coming up for Second Reading in 1-2 months (people have been indicating support to their Member of Parliament [2], right?).  This change comes as trans issues are becoming better known to the federal government and in mainstream society.

The nation has been under pressure from the U.S. government to tighten screening and restrictions on Canadian travelers, including the introduction of full-body scanners, which also single out transsexual and transgender people for special scrutiny.  In September 2003, the U.S. Department of Homeland Security issued the first of several warnings [3] that potential Al Qaeda terrorists might be changing tactics to avoid scrutiny, such as departing from airports in Canada and Mexico, or dressing as women.

Some have speculated that the stress on appearance was also intended to target women who wear the niqab and hijab [4], making such an assessment impossible, and potentially also banning Muslim women who adhere to this tradition from boarding a plane.  Traditional coverings of this sort have already been flashpoints of controversy regarding citizenship ceremonies [5] and court testimonies [6].  Although one of the motivations for these bans is supposed to be the status of women, punitive legislation targeting full face and body coverings have a horrible tendency to target women [7], rather than provide any viable solutions informed by them.

Anyone wishing to do so is welcome to contact the Minister.  Copy to your Member of Parliament as well, and remember to keep it civil but clear that the amended wording of the Aeronautics Act is a serious concern.  Letter mail tends to be more effective, where possible.

E-mail: denis.lebel@parl.gc.ca

P: 613-996-6236

F: 613-996-6252

Mailing Address (postage free) : Hon. Denis Lebel, Chambre des communes/House of Commons, Ottawa ON K1A 0A6

Email: Questions@tc.gc.ca

P: 613-990-2309

Toll Free: 1-866-995-9737

TTY: 1-888-675-6863

Fax: 613-954-4731

Mailing Address: Transport Canada, 330 rue Sparks Street, Ottawa, ON, K1A 0N5