T.A. v. Ontario (Transportation), 2016 HRTO 17

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.A.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation and the Ministry of Health and Long-Term Care

Respondent

INTERIM DECISION

Adjudicator: Yola Grant Date: January 6, 2016 Citation: 2016 HRTO 17 Indexed As: T.A. v. Ontario (Transportation)

APPEARANCES

T.A., Applicant Kathryn Fox, Counsel

Ontario (Transportation and Health and Long-Term Care), Respondent Sean Hanley and Savitri Gordian, Counsel

1These Applications, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege discrimination with respect to goods and services because of gender identity and gender expression through the use of binary gender designation on driver’s licenses and health cards. The Applications were filed on March 2 and April 9, 2015 respectively, and were consolidated by the Tribunal on consent of the parties on May 13, 2015.

2The applicant identifies as pan-gendered and prefers the use of gender-neutral pronouns “they”, “them” and “theirs”. The applicant’s use of plural pronouns was replicated throughout the submissions made by applicant’s counsel. The scheme developed to date by the respondent to designate gender on identification documents is binary only: male or female. This is a novel Application that seeks to establish a more fluid or non-specified gender (referred to as “pan-gender”) on government-issued identity documents.

3The respondent filed a single Response to the Applications, and at item 16, under the header “Important Documents the Applicant Has”, identified the following as relevant to its Response:

All medical, psychiatric and psychological records related to the Applicant’s efforts to relating to changing sex designation, including records relating to sex reassignment surgery, as well as doctors reports, notes, assessments referrals and other records or analyses maintained by the Applicant’s health care providers.

4The above request was discussed by counsel for the parties and the applicant did not consent to the disclosure.

5The respondent later filed a Request for Order During Proceedings (“RFOP”) on September 30, 2015, regarding the disclosure of medical evidence relating to the changing of the applicant’s sex designation and/or any remedies claimed.

6The parties jointly requested that the Tribunal address the RFOP by way of a preliminary hearing. That preliminary hearing was held on December 16, 2015, after an exchange of written submissions by the parties. At the outset of the hearing, the parties indicated that they had reached an agreement regarding records related to OHIP billing codes and that no order was sought in respect of records related to the applicant’s assertions regarding billing and accessing medical services. Furthermore, in anticipation of an argument that the medical evidence is necessary to determine damages, the applicant requested that the hearing be bifurcated. At the preliminary hearing, the applicant instead asserted that no medical evidence would be called in connection with the claim for damages and thus the request for bifurcation was abandoned.

ISSUE

7The issue to be determined is whether the sought-after documents contain evidence that is “arguably relevant” to the determination of the Application. This is a very low test to meet. There is no requirement that the evidence be determinative of the issue between the parties.

SUBMISSIONS

8The respondent asserted that the applicant has been pursuing the issue of a “pan-gender” identity for years while concurrently applying for sex-reassignment surgery at Centre for Addiction and Mental Health (CAMH). To qualify for that surgery, all applicants are required to declare a preferred gender role and assert a “lived identity”. The respondent argues that it is relevant to this Application for the Tribunal to have evidence available to it regarding whether the applicant is “making inconsistent statements to public bodies”. Accordingly, the respondent asserts that the applicant “is not in a position” to seek the remedy claimed in the instant Application.

9The respondent asserted that this is a novel claim resting on a non-traditional assertion of gender. The applicant has not provided any statement regarding lived identity as a pan-gendered person as is required for transgendered persons. The respondent urged the Tribunal to require the applicant to provide a proper basis to establish lived gender identity over a period of time, as pan-gender, male or female.

10The applicant submits that medical records are not relevant to the instant proceedings as there is no medical aspect to this claim regarding gender identity, as opposed to a claim of disability. The applicant will not be relying on medical records to support the claim of discrimination, and surgery is irrelevant in any event to the request that the identity document denote “X”, an atypical designation, rather than “F” or “M” for female or male respectively.

11Sex reassignment surgery was not pleaded by the applicant and applicant’s counsel expressed the view that the respondent was making use of information obtained elsewhere in connection with other litigation. Furthermore, counsel asserted that the authenticity of the applicant’s claim had not been raised prior to this preliminary hearing.

12The applicant’s argument against the relevance of medical evidence to the instant Application is that “to require a pan gendered person to provide medical records for identity cards is discriminatory as a pan gendered person is being treated differently from cis-gender or ‘other transgendered persons’”. According to the Applicant:

1. For cis-gendered persons whose identity is consistent with their birth assigned sex, no medical information is required whatsoever.

2. For other transgendered persons, all that is required of them is “a letter from a physician or psychologist” to effect a change on their identity documents.

13The respondent submitted in reply that with respect to health cards, the opinion letter of the psychologist stated “he wishes a change of sex designation on the birth registration to X” and notes also that the “applicant’s gender identity does not accord with the sex designation on …” but the opinion letter does not explicitly state that the applicant is “pan gender”.

14On hearing the respondent’s submission in reply, the applicant’s counsel conceded that the letter submitted by the applicant with the instant Application (signed by a psychologist) did not conform to the requirements laid out in paragraphs 12 and 21 of the Response (for health cards and driver’s licences respectively) for medical personnel to express an opinion on gender or lived identity as male or female and stated that her client would “prefer writing a second letter that would be in line with the requirements of the letters set out in the Response”.

ANALYSIS & DECISION

15The parties are in agreement that medical records, particularly regarding matters involving sex reassignment and gender identity, are especially sensitive and should not be divulged needlessly. The respondent conceded that records concerning surgery/ medical procedures are irrelevant. The CAMH records are sought to establish whether there was an assessment of the applicant’s gender identity contemporaneous with filing the instant Application and whether the applicant’s gender self-identification in those records accords with that expressed in the instant Application. The Tribunal is cognizant of the fact that the medical records sought may shed little or no light on the applicant’s assertion of gender identity in the applicant’s everyday life as the applicant may present differently to gate-keepers (like physicians who determine eligibility for services) than they do while at work or at play or in their familial relationships.

16The parties used different language to describe the link between the sought-after evidence and the theory of this novel case. The respondent referred to the “applicant’s inconsistency” as having a bearing on whether the applicant is in “a position to bring” this case. When questioned by the Tribunal directly regarding whether the issue related to standing, the respondent agreed. The subsequent submission from the applicant referred to the applicant’s “authenticity”, suggesting that bona fides are what are in issue. The applicant’s submission against disclosure of medical records appears to mirror the ultimate argument that medical records should not be required to establish identity and to do so is discriminatory. It did not assist the Tribunal in addressing the issue of arguable relevance to proving lived identity as a pan-gendered person.

17The Tribunal need not resolve this difference between the parties at this stage of the proceeding. It is sufficient to address whether the sought-after evidence is relevant to a finding of standing, liability and possibly damages. The evidence disclosed thus far by the applicant (a letter from a psychologist) is insufficient as it does not substantively address the lived gender identity issue in play before the Tribunal.

18The Tribunal’s jurisprudence on what constitutes arguably relevant documents for the purpose of its Rules is long settled. See for example, Powell v. Sans Sole Tanning Salon Inc., 2012 HRTO 964, that summarizes the Tribunal’s approach as follows at paragraphs 10-12:

The Tribunal may order pre-hearing disclosure in order to ensure compliance with the obligations under the Rules. It is well-established that a party seeking production of documents must demonstrate that the information is “arguably relevant” to the proceeding and, if the requested information triggers concerns regarding privacy or privilege, that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220.

The “arguable relevance” threshold has been described as “not a particularly high bar”. See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8, and the cases cited therein. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after material(s) and the subject-matter of the application. The Tribunal in McKay, supra, explained the analytical approach to assessing “arguable relevance” as follows, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

The second step of the disclosure analysis requires consideration of other interests, such as confidentiality and fairness. Documents meeting the “arguable relevance” threshold may not be disclosed or may be subjected limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection. In Lampi v. Princess House Products Inc., 2008 HRTO 1, the Tribunal noted that “(d)ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing” at paragraph 10. Consequently, in assessing the disclosure requests, the Tribunal must also consider whether fairness in the circumstances requires that production be subject to certain limitations, terms or conditions, in particular to address such matters as privilege or confidentiality.

19The respondent seeks information from the applicant to establish a lived experience related to this fluid gender identity claim that is of similar nature as the information required for transgendered persons. There is a nexus between the information that is sought and the issue to be determined regarding the applicant’s assertion of fluid non-binary identity as a lived experience, capable of recognition under the Human Rights Code. For this reason, the respondent’s modified request for medical records disclosure relating to the assessment of gender identity is granted.

ORDER

20The Tribunal orders that the applicant obtain the following arguably relevant documents from CAMH and deliver them to the respondent’s counsel as soon as possible and by no later than 21 days from the date of this Interim Decision:

a. Complete notes and records from the applicant’s treating physicians, doctors, specialists and practitioners named in the respondent’s Response and the later filed RFOP, with whom the applicant consulted, in connection with the applicant’s efforts for a change of sex designation including any medical assessment or analysis of the applicant’s gender identity;

b. This Order does not require the disclosure of surgical records related to any surgery or procedure that the applicant may have sought or undergone in connection with sex reassignment; and,

c. The records disclosed pursuant to this Order shall be maintained in strict confidence by the respondent.

21The parties shall make disclosure under Rules 16.2, 16.3, 17.1 and 17.2 as soon as possible and are directed to do so by no later than 35 days from the date of this Interim Decision.