Important Note: This article does not contain legal advice. This article is only meant to provide a basic starting point for lawyers looking to include gender marker and name changes on provincial identification into their practice.
Lawyers have become increasingly interested in participating in “Trans ID” clinics intended to assist individuals with changing their name and gender markers on their identification. Ontario’s stated policy is to recognize and respect trans identities in Ontario, ensuring all Ontario residents can access identification matching their identity. Individuals may apply through the Ontario government to change the markers on their birth certificate (if born in Ontario), drivers’ license, OHIP health card, and photo card. Documents such as passports, immigration documents, and Certificate of Indian Status are under the purview of the federal government and requires different processes.
While individuals should theoretically be able to go through these applications alone, in practice, those looking to change their name and gender markers often face hurdles that cannot be navigated without lawyers. Each application has detailed requirements and could take months to process. While lawyers are technically only required for certain parts of the application, lawyers who assist Trans ID clinic clients are often entrusted with a high degree of responsibility. A lawyer’s role can go beyond facilitating the necessary forms and affidavits – lawyers should be prepared to explain potential consequences and setbacks that may arise during, or as a result of, the complicated processes.
Trans ID clinics generally have a focus on working with trans individuals experiencing poverty and/or housing insecurity. Given the high costs of each application, lawyers must be sensitive to their client’s socioeconomic situation. In many cases, clients who most need a lawyer are those who are missing crucial documentation and in the most financial need. are missing crucial documentation, and who are in the most financial need, are those who most need the help of a lawyer.
Name changes can be done in Ontario without the consent of a legal guardian for individuals who are 16 years of age or older. Individuals must have lived in Ontario for the past twelve months prior to changing their name on provincial documentation. A change of name application currently costs $137.
A name change application’s complexity depends on the presence or absence of certain factors, including whether the client is under 17 years old; was born in Ontario; was born in Canada; has all previously issued original copies of their birth certificate; has changed their name in the past; has previous criminal convictions; or has a guarantor from an enumerated list of professions who can attest to whether the client has lived in Ontario for the past twelve months.
Lawyers must become involved at the final stages of the change of name application by commissioning it for the client. Lawyers can, however, take certain steps throughout the process to assist and ameliorate the stress of the applications. If the client is unable to access information or documents that are required for the change of name application, lawyers can provide support by helping the client swear or affirm an affidavit to attest to their circumstances. For instance, a client may swear or affirm an affidavit attesting that they cannot access certain documents because they are not in contact with their birth parents.
Lawyers should alert clients that the Ontario Gazette will automatically post name changes. Trans individuals can request that their name change not be announced in the Gazette, but they must do so when filing their application.
Once a name change is complete, lawyers may also assist their client with changing their names on other types of identifications and in other databases. In particular, lawyers should be aware that the Canadian Revenue Agency must be alerted of the name change through an original copy or a notarized and certified true copy of the change of name certificate. Likewise, clients should update their Social Insurance Number record after a name change.
CHANGING THE GENDER MARKERS
Not unlike name change applications, the complexity of changing a client’s gender marker will depend on whether the client is under 17 years old; was born in Ontario; was born in Canada; has all previously issued original copies of their birth certificate; has access to a doctor or psychologist; and has a guarantor from an enumerated list of professions who has known the client for at least two years.
If possible, an individual’s first step should be changing their gender marker on their birth certificate, as possessing an updated birth certificate simplifies other applications. If the client is born in Ontario, they can apply to change the sex designation on their birth certificate to female (F), male (M), or non-binary (X). A client may also simply order a birth certificate with no gender marker. A parent must apply for individuals 15 and younger, but anyone 16 or over may apply as an adult. If the client was not born in Ontario, lawyers must direct them to the client’s birth province or birth country’s guidelines.
Clients should be made aware of the potential legal consequences of changing their sex designation to “X” on their identification. Individuals with “X” on their birth certificate may face discrimination and other jurisdictions may not consider an “X” marker to be valid.
The Ontario government does not charge for changing the sex designation on a birth certificate. However, the application may still carry costs if the client does not have access to their original birth certificate; a birth certificate costs $25 and a certified copy of birth registration costs $35. The list of necessary forms for changes on a birth certificate can be accessed on the Government of Ontario website here.
Clients should be made aware that they will need a letter signed by a practicing physician or psychologist authorized to practice in Canada. If clients do not have access to such a letter, they may be able to use alternative medical documents as a substitute, which will be assessed on a “case by case basis.” Clients under 16 should also be made aware that changing the sex designation on a child’s birth certificate requires notifying anyone with legal access to the child.
Changing the sex designation on an Ontario driver’s licence requires fewer documents. Individuals must have an original and valid document including the updated designation, which can include a birth certificate, a birth certificate with parental information, or a certified copy of birth registration. Individuals without updated birth certificates require a letter from a doctor licensed in Ontario or a psychologist licensed in Ontario, as well as a letter from the applicant. Details of the required documents can be found on the Ontario government website here.
The forms in a gender marker change application must be notarized before they are submitted. Lawyers are necessary to provide the notarization. Furthermore, if an individual does not have access to a necessary document, then the lawyer can help affirm or swear an affidavit explaining the individual’s situation and why those documents are not available. If a client’s application is refused, lawyers may also assist in applying for reconsideration.
Changing a client’s name and the gender markers on their birth certificate and driver’s licence can help improve much of their day-to-day situation, but a client will likely want to also update their federal documents or other legal documents. While this article is not delving into federal documents, a basic primer can be found on the Ontario government website here.
Lawyers must remember that these applications are typically both extremely important and extremely stressful for clients. Lawyers can assist with an application but cannot guarantee the result, and lawyers should make this uncertainty clear to clients at the outset.
About the authors
Rachel Allen (she/her) believes in the power of community within the legal field. She is an associate at Greenspan Partners LLP practicing criminal defence law. She is currently serving as the newsletter editor for the OBA SOGIC Section.
Amy Chen (she/her) is passionate about supporting marginalized communities through grassroots organizing and public interest litigation. Her practice at Goldblatt Partners LLP involves a mix of public sector labour law, civil litigation, constitutional law, and class actions.
This article originally appeared on the OBA’s SOGIC Section articles page.
Ontario, “Changing your sex designation on your birth registration and birth certificate”, online: <https://www.ontario.ca/page/changing-your-sex-designation-your-birth-registration-and-birth-certificate >
 Ontario, “Change name”, online: < https://www.ontario.ca/page/change-name >.
 Ontario, “Changing your sex designation on your birth registration and birth certificate”, online: <https://www.ontario.ca/page/changing-your-sex-designation-your-birth-registration-and-birth-certificate >
 Ontario, “Application for a Change of Sex Designation on a Birth Registration of an Adult”; Ontario, “Statutory Declaration for a Change of Sex Designation on a Birth Registration”.
 Ontario, “Change the sex designation on your government IDs”, online: < https://www.ontario.ca/page/change-sex-designation-your-government-ids >