November 7, 2024
FOR IMMEDIATE RELEASE:
Gender justice groups urge BC government to repeal harmful name change ban
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Vancouver, unceded Xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish) and səlilwətaɬ (Tsleil-Waututh) homelands–
Gender justice groups from across the province are calling on the BC Government to repeal Bill 26 the Name Amendment Act (No 2) 2024. The bill changed the Name Act, restricting access to legal name changes for many British Columbians.
The new Name Act bans legal name changes for people convicted of certain offences; for people found not-criminally responsible of certain crimes; and for people designated as dangerous or long-term offenders. It adds a new criminal record check for all applicants over 12 years old; and imposes mandatory records sharing between the Vital Statistic Agency and the RCMP. Applicants will face increased costs, a 4-month delay in processing applications, and for many, the inability to change their names at all.
Changes to the law were not necessary to protect the public, and it harms those most in need of legal name changes, including transgender people, Indigenous people, and survivors of gender-based violence. Lawmakers did not consider the factors that contribute to these groups being overrepresented in the justice system. None of the affected communities were consulted.
The name change ban interferes with the human rights of transgender people to use their chosen names; and with UNDRIP and the Truth and Reconciliation Commission’s requirement that governments enable residential school survivors and their families to reclaim Indigenous names. Survivors of gender-based violence also depend on legal name changes for their safety. These restrictions violate the legal rights of these communities under the Charter, the BC Human Rights Code, and international law.
The groups call on the province to repeal the Name Amendment Act (No. 2), and to improve access to correct identity documents, and to dignity for their communities
Adrienne Smith (they/them), Litigation Director, CWHWC Trans Legal Clinic says:
“We are profoundly disappointed the BC Government banned legal name changes for many British Columbians. The change was not needed and won’t protect the public. Our chosen names are human rights, and correct ID is necessary to work, to vote, to participate in civic life, and to keep us safe. ID mismatches are used across the province to deny access to health and social services, particularly emergency shelters.
This change hurts people standing farthest from justice, because it essentially sentences trans people to permanent deadnaming. That is unlawful, and it is wrong. Everyone should be entitled to the basic dignity of a name.” [email protected] 604-200-9080.
Grand Chief Stewart Phillip (he/him), President, Union of BC Indian Chiefs, says: “The law frustrates decolonization work. UNDRIP and the Truth and Reconciliation Commission call on all levels of government to enable residential school survivors and their families to reclaim names changed by the residential school system. This law prevents name changes for people with some criminal convictions. Indigenous people are overrepresented in the justice system, so this change seems heavy handed and unfair.”
Didi Dufresne (he/they/she), Director of Legal Services, QMUNITY says:
The criminal offenses listed include charges historically used to criminalize queer sex (like gross indecent, incident acts, exposure); charges related to sex work which are constitutionally suspect, and a number of non-violent offenses like breaking and entering or trespassing at night. The law includes alarming information sharing between the Ministry of Health and the RCMP. There is no reason children should have to submit to criminal records checks or have their information shared with police. The added cost, delays, and the threat to health record security is alarming. [email protected].
Kate Feeney (she/her), Director of Litigation, West Coast LEAF says:
“A speedy and accessible name change process is crucial for survivors trying to escape ongoing violence and stalking when other options have failed to protect them. Everyone deserves safety from gender-based violence—period, including survivors who have had engagement with the criminal legal system.” [email protected].
Lee Nevens (they/them) President, Canadian Bar Association BC Branch says:
Transgender people, Indigenous people, and survivors of gender-based violence face legal issues that impede their access to justice and present unnecessary barriers to their full participation in society. It is increasingly important to champion equity and inclusivity while upholding human rights principles. CBA's Access to Justice for Trans People Report called on governments to simplify name change processes, not increase procedural steps and costs. This Act doesn't meet that goal and, in fact, increases the barriers. [email protected]g [email protected].
Kit Rothschild, (they/them), PACE Society says:
"New changes to the Name Act changes will hit trans, Two-Spirit, and non-binary IBPoGM communities especially hard, as they are over represented in sex work due to systemic barriers to employment. Name changes are essential to safety, self-determination, and dignity. These amendments risk exposing those with sex work related arrest records, amplifying discrimination and stigma in ways that undermine their rights and safety. This policy not only disregards their lived realities but threatens to deepen the marginalization they already face." [email protected] 604-880-5913.
Dylana Thompson, (she/her), Society for Advocacy for Gender-Affirming Healthcare says:
“At a time where trans lives are being dangerously politicised in BC and in neighbouring provinces, we are disappointed to see a progressive government make decisions that impact vulnerable communities without consultation and expertise from organisations serving, advocating for, and led by 2S/LGBTQIA+ people. In our province, Two-Spirit, trans, and nonbinary people face significant barriers accessing lifesaving healthcare. Legal transition is one critical component of this care, recognized and upheld by the World Professional Association for Transgender Health (WPATH). Excessive delays and exclusionary policies are unfortunately the norm when it comes to trans health–this amendment to the Name Act is a further restriction harming the health and wellbeing of our most marginalised. We encourage the government to reassess the impacts of this legislation and consult with affected communities.”
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Media contacts
- Adrienne Smith (they/them), Litigation Director, CWHWC Trans Legal Clinic [email protected] 604-200-9080
- Kit Rothschild (they/them), Community Co-Executive Director, PACE Society [email protected] 604-880-5913
- Didi Dufresne, Director of Legal Service, QMUNITY [email protected]
- Kate Feeney (she/her), Director of Litigation, West Coast LEAF [email protected]
BACKGROUNDER:
Name Changes in BC are managed under the Name Act by the Vital Statistics Agency, a branch of the Ministry of Health.
Bill 26 the Name Amendment Act (No 2) 2024 was passed in the last two days before the legislative Assembly was dissolved for the provincial election in May 2024. It is based on a proposal by BC United Party MLA Kevin Falcon in a Private Member’s Bill to prevent dangerous offenders from changing their names to avoid accountability, because Allan Schoenborn changed his name. Mr. Falcon’s proposal would not have applied to Mr. Schoenborn, because he was found Not-Criminally Responsible by Reason of a Mental Disorder (NCRMD) - but not convicted- for the murder of his three children. The government version of the bill adopted Mr. Falcon’s proposal and extended the ban to people found NCRMD, to people designated as dangerous or long-term offenders, and to youth tried as adults. It received unanimous support from all parties.
The bill added section 4.1, to prohibit name changes for people convicted of certain offences, people found NCRMD because they were unwell at the time of the offence or the trial, and to dangerous and long-term offenders (DO and LTO). It applies to young offenders tried as adults.
Debate in the legislature focused on violent crimes, but the Regulations released in September list a broad range of charges, including those historically used to criminalize gay sex (like gross indecent, incident acts, exposure); charges related to sex work which were struck down as unconstitutional for adults in the Bedford case), and a number of non-violent offenses like breaking and entering and trespassing at night. It applies to attempts and to threats. The prohibition applies even if the convictions leading to A DO or LTO designation are listed. In debate the Minister of Health said he wanted the ban to apply to pardons.
Section 6.1 adds a new criminal record check for all applicants over 12 years old; and mandatory records sharing of an applicant’s personal information between the Vital Statistic Agency and the RCMP, about adults 7(1.1) and children 7(1.2)( (1.3).
The adult application form says results of criminal records checks will be sent by the RCMP to the Vital Statistics Agency.The youth application form say the results of criminal records checks for children aged 12-17 are given to the applicant to send to Vital Statistics.
In debate the Minister of Health said the changes would delay applications by one week for all applicants, and 120 day delay for those with criminal records. The RCMP reports processing times up to 120 days. This means applicants will wait 8 month or more to see if their applications will be accepted.
Section 9 of the Name Act already gave the Registrar General the power to reject applications made for improper purposes, and to repeal name changes obtained by fraud. All adult applicants had been fingerprinted prior to the amendment.
Bill 26 also amended the Adoption Act to prevent name changes because of adoption. However legal name changes are allowed under the Witness Protection Program which gives new names to police informants who may have convictions for the listed charges. Anyone can still change their name as a result of marriage without applying for a legal name change and without a criminal records check.
Impact
Transgender people
The Supreme Court of Canada in Hansman v Neufeld says gender identity is a protected ground in human rights legislation across the country, and under the Charter; but despite legal protection transgender still people occupy a unique position of disadvantage in our society (paras 84-89). The BC Human Rights Tribunal in Oger v Whatcott and Dawson v Vancouver Police Board affirms the rights of trans people to use their chosen names. Deadnaming trans people is discriminatory. The Name Act allows the government to deadname some trans people and encourages others to do so, by depriving them of the documents they need to prove who they are.
Indigenous people
The United Nations Declaration on the Rights of Indigenous Peoples Article 13 (enacted in BC in 2019) and the Truth and Reconciliation Commission Recommendation 17 calls upon all levels of government to enable residential school Survivors and their families to reclaim names changed by the residential school system by waiving administrative costs for a period of five years for the name-change process and the revision of official identity documents, such as birth certificates, passports, driver’s licences, health cards, status cards, and social insurance numbers.
The BC government announced a fee waiver of the $137 application fee for indigenous name changes, but implemented an expensive affidavit requiring applicants to prove a connection to the Residential School System or the 60s scoop in order to access it.
The Department of Justice reports “as a result of Canada’s colonial history, Indigenous peoples have been subjected to assimilation policies and practices that have created collective and individual intergenerational trauma resulting in negative impacts on social determinants of health for many. Their experiences, often compounded by inadequate housing as well as limited education and employment opportunities, have been identified in the literature as contributing to Indigenous people being in contact with the criminal justice system more often and for longer periods than non-Indigenous people.” This contributes to the overrepresentation of indigenous Indigenous people in custody in Canada. Indigenous people are more likely to be convicted of the listed crimes, and are more likely to be designated as dangerous offenders and now cannot reclaim their names.
Children and youth
The UN Convention on the Rights of the Child Article 2 compels state parties to protect children from discrimination. Articles 7 and 8 guarantee children and youth the right to a name, and the protection of their identity. Article 13 guarantees freedom from arbitrary or unlawful interference with privacy. Article 40 says youth are entitled to have their privacy protected at all stages when involved with the courts. Part 6 of The Youth Criminal Justice Act prohibits access to the criminal records of young people. The criminal records check requirement in the Name Act, and the coercive access to criminal records of young people (which cannot be disclosed directly so are given to the applicant to send in) runs afoul of these protections; as does the ban on name changes for youth who are convicted as adults. The lack of proper identity documents compounds existing inequalities faced by youth with criminal records who are queer and trans, indigenous, or fleeing violence.
2SLGBTQ+ Apology
The federal government apologised for the historical criminalization of homosexuality with the Expungement of Historically Unjust Convictions Act by providing for the expungement (pardon) for crimes for 2SLGBT people, including gross indecency, indecent acts and exposure. These offences are listed in the Name Act regulations and people convicted of them (and possibly people pardoned with expunged records) cannot change their names.
Sex workers
In the Bedford Case the Supreme Court of Canada found three provisions of the Criminal Code unconstitutional: S. 210 operating a common bawdy house, s.212(1)(j), living on the avails of prostitution; and s. 213(1)(c) communicating for the purpose of prostitution were struck down. The Harper government re-enacted similar provisions related to sex work in s 286.1 of the Criminal Code. These offences are listed in the Name Act regulations and people convicted of them cannot change their names.
Survivors of violence
Many survivors of family violence, including youth, change their names for their own safety, or to avoid a traumatic association with a previous name. Survivors from marginalised communities are often charged with offences when they report crimes, if they remove their children from dangerous situations, or if they fight back against an attacker. Kidnapping, abduction, and removing a child from Canada, and a number of charges that could result from self defence are listed in the Name Act regulations and would prevent survivors from changing their names. Moka Dawkins was convicted of manslaughter for defending herself against an attacker who stabbed her in the face. Some BC abduction cases arise when a young person runs away from family violence and people who assist them are charged.
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