Change to requirement of sex reassignment surgery for Canadian citizenship

Citizenship and Immigration Canada (CIC) recently signalled that it will be remove the requirement for proof of sex reassignment surgery (SRS) to change one’s sex designation on a citizenship certificate.

This move is strongly welcomed by advocates in the transgender and legal community which have been calling for the removal of this discriminatory requirement.

Prior to this change, CIC’s official policy stated that a change in gender for the purposes of citizenship documents was only available to persons who have undergone sex reassignment surgery.[1] 

Under the former policy, in order to establish that there has been a change of gender for the purposes of a grant of citizenship under the Citizenship Act, CIC required: (1) a statement from the surgeon confirming the surgical procedure and (2) a statement from another person to the effect that they knew the client prior to the surgery and that the client is one and the same person.[2]

CIC’s former policy did not comply with the Canadian Charter of Rights and Freedoms nor Ontario jurisprudence that states that requiring SRS contravenes the Ontario Human Rights Code.

The case of XY v. Ontario (Government and Consumer Services) before the Human Rights Tribunal of Ontario found the requiring sex-reassignment surgery before being able to change a sex designation on an identity document was discriminatory.[3]

An individual who applies to amend their sex designation on their citizenship certificate or other immigration document should not be required to undergo sex-reassignment surgery. Our firm’s transgender clients welcome this positive policy change.

For recent media coverage on CIC’s policy change, please see: http://news.nationalpost.com/news/canada/federal-government-quietly-eases-requirements-for-canadians-seeking-to-change-gender-on-citizen-certificate.

 


[1]Citizenship Policy (CP3)- “Establishing Applicant’s Identity”, http://www.cic.gc.ca/english/resources/manuals/cp/cp03-eng.pdf

[2] Ibid, Section 6.5

[3]XY v. Ontario (Government and Consumer Services), 2012 HRTO 726. See also: http://www.ohrc.on.ca/en/book/export/html/11169#sthash.fOxLXZjE.dpuf

How can I speed up the processing of my immigration or citizenship application?

In recent years, the processing time for applications submitted to Citizenship and Immigration Canada (CIC) have increased considerably. In particular, the average processing time for citizenship applications currently takes between 24 to 36 months.

The delays in the processing of citizenship applications continues to be a source of frustration for permanent residents in Canada, given that little explanation has been provided about why routine application with limited international travel are taking years to process. In 2008, citizenship applications took approximately 12 to 15 months to process. By 2012, the wait time was extended to 21 months.

In July 2014, the Toronto Star profiled the case of a professor from the University of Toronto who had been waiting for three years for his citizenship application to be processed. This applicant applied in February 2011, was required to fill out a residency questionnaire with detailed information and supporting documents to demonstrate his physical presence in Canada, and was given no explanation as to why this level of information was required. Unfortunately, this experience may sound all too familiar to many applicants who continue to wait for their citizenship despite having diligently complied with CIC’s requirements.

(see:http://www.thestar.com/news/immigration/2014/06/30/u_of_t_prof_still_waiting_for_citizenship_after_three_years.html).

Although CIC offers urgent processing for citizenship applications, this procedure is only available if there is an emergency that requires that Canadian citizenship be granted immediately. For example, if an applicant would lose their job if they did not secure citizenship, if they could not attend school, or if there is a death or serious illness in their family that requires travel abroad, then a request for urgent processing can be made. In my experience, this remains a limited option for applicants who must meet strict requirements for urgent processing. In one exceptional case that I acted as counsel, citizenship was granted within 24 hours.

For the vast majority of citizenship applicants, the seemingly only available option is to wait for a decision. However there is a judicial remedy called a “writ of mandamus” that is available if an applicant meets the legal requirements. The purpose of this remedy is to compel CIC to make a decision on the application, including both immigration and citizenship files.

The starting point to determine if an applicant should use the remedy of mandamus is to look at whether the processing of their application exceeds the average processing time for similar applications. The Court will also look at whether an applicant has made inquiries into the delay in the processing of the application and whether CIC has provided a reasonable justification for the delay. The decision whether to pursue a mandamus depends on the unique facts of each application and must be assessed accordingly.

The reality is that many citizenship applications have been stalled for years with no reasonable explanation. The remedy of mandamus is an effective legal option for applicants who have been waiting to have their citizenship or other immigration applications processed and who meet the requirements. In my experience, this has been an extremely powerful and effective legal tool in speeding up the processing of citizenship applications that have surpassed the average processing time. In many of my routine mandamus cases, a decision is made on the application within a short period of commencing the litigation, depending on whether settlement is appropriate.

If you have any questions about speeding up the processing of your citizenship or immigration application, please contact me to discuss whether a mandamus is an appropriate remedy for your case.