Aeronautics Act grounds transgender Canadians

In late January, members of the Canadian transgender community cried out after noticing that a Canadian airport security regulation makes it unclear if they will be allowed to board airplanes.

The transgender community is concerned about section 5.2(1) of the act, which states that "an air carrier shall not transport a passenger if … (c) the passenger does not appear to be of the gender indicated on the identification he or she presents."

Come fly with me: Canada's transgender community is outraged that they could be banned from flying because of the regulation.

The following part of the act, section 5.2(2), exempts a person from this rule who provides a letter from a doctor stating their appearance has changed for medical reasons. This exemption does not protect transgender Canadians because a person can’t get a letter without undergoing sexual reconstructive surgery as part of the gender transition. Some people who identify as transgender may choose never to have surgery, while some do but have to live in their preferred gender for at least a year before doctors will perform the surgery.

The regulation is part of Transport Canada's Identity Screening regulations, which are part of the Aeronautics Act. The act is part of the Passenger Protect program — Canada's equivalent to the no-fly list in the United States.

Transport Canada spokeswoman Maryse Durette said the regulation was initially passed in reaction to an incident in 2010 where a woman wearing a veil was allowed to go through airport security without having her ID checked against her appearance. That incident was caught on video and posted to YouTube.

"After that, the airlines requested we consult with them to find a better way to match an ID to a person," she said.

"The amended regulation makes sure the airline matches a passenger’s face to their birth date and gender on their ID," Durette said.

So far, there has been no incident where a transgender person was blocked from boarding a plane because of the regulation. However, the gender-matching part of the regulation concerns Catherine Mateo, 30, a member of the transgender community from Kelowna, B.C.

"I do believe that this should have been caught and dealt with before the change was made," she said. "Quite frankly, it's sloppy that it wasn't."

Difference of opinion

Transport Canada said it's up to an airline to resolve any discrepancy between a person and the information on his or her ID at the airport.

Air Canada spokesman Peter Fitzpatrick said in an email that Air Canada follows the regulations set by the government.

Airports and airlines must comply with Transport Canada regulations potentially banning transgender Canadians from boarding planes.

Mateo wrote of her concerns in an email to Air Canada and posted it to her blog on Jan. 29: "As part of the transition process, there is a medical requirement to live in the target gender for at least one year. During this year, gender markers on government identification are not changed in all provinces (as some provinces will only change gender markers after surgery). According to your email, during that one year, people will not be allowed to fly Air Canada. Can you confirm this?"

Air Canada replied: "Air Canada is bound by federal law and as such we must comply with the regulations that if a passenger's face or gender does not match the government-issued photo identification, we are prohibited from carrying that passenger."

Potential impact

A.O. Abd El Halim, an engineering professor at Carleton University and an expert on transportation security, said he supports the regulation the way it is and believes the government acted in good faith. 

He said he understands how it can be interpreted as discriminatory, but he himself encounters racial profiling when going through security.

"Just by nature of being trans doesn't mean we're a risk to security in terms of an airport."

"I'm from Egypt, I look suspicious, but if that's the price of being secure, I'll take it."

Jennifer McCreath is an activist in Newfoundland's transgender community.

"We understand the need for airport security, we need to fly in safe planes as well," she said.

"What a lot of people are not realizing is that this is actually gender-marker match requirements above and beyond the usual screening," she said. "Just by nature of being trans doesn't mean we're a risk to security in terms of an airport."

Transport Canada has not yet announced any intention of reviewing or changing the regulation. NDP MP Olivia Chow proposed a motion at the federal Transport Committee meeting on Feb. 9 to rescind the regulation but the Conservative committee members voted it down.

Come fly with me: how bloggers broke the story

Capital News Online takes a look at how Transport Canada's regulation concerning gender-matching passports soared from the blogosphere into Question Period.