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Transgender? Don’t Try To Board A Plane In Canada

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This week bloggers exposed a regulation passed in July that could effectively bar transgender, transsexual, and gender non-conforming people from boarding airplanes in Canada. While it is still unclear whether the regulations have affected any trans people at the airport, the policy as it is written is disquieting – and asks us to think about how gendered documents affect movement.

There are two clauses of concern in Canada’s “Identity Screening Regulations”:

5.2 (1) 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; or

(d) the passenger presents more than one form of identification and there is a major discrepancy between those forms of identification.

 

Crossing Borders

In a recent report, Human Rights Watch explains: “For many trans people, one of the most distressing consequences to having the wrong gender in their identity documents is that they repeatedly have no option but to reveal to perfect strangers … details of a particularly intimate aspect of their private lives, namely that they are transgender.”

International travel can be a high-risk experience for trans people as it calls for multiple identity checks in high-security environments – namely airports.

Paisley Currah and Tara Mulqueen explain that at airports, expectations of gender often reflect the “common sense” that gender is an unchanging biometric characteristic or, “that there is a perfectly harmonious relationship between the sex classification an individual is assigned at birth based on a visual inspection of the body (what one was), one’s current “biological sex” (what one is), one’s gender identity (what one says one is), one’s gender presentation (what one looks like to others) and the gender classifica­tion on the particular identity document one proffers.”

And when documents don’t match expectations, it’s an anomaly, which, Currah and Mulqueen argue, “is an event that automatically triggers higher levels of scrutiny.”

Most countries which allow gender to be legally changed at all still require intense – often medicalized and expensive – processes to change gender markers on documents. Some countries, however, are allowing gender identity to be increasingly based on self-identification when it comes to travel documents.

These progressive policies complicate the Canadian regulation even more. What would Canada do with a passport marked “X”?

Marking Papers

Australian citizens are required to list their gender on passports as M (male), F (female), or X (unspecified). While changing gender on documents requires certifying letter from a doctor, sex reassignment surgery is not required to issue a passport in the preferred gender. The letter from the medical practitioner must confirm intersex status or appropriate clinical treatment for gender transition. If unable to obtain a letter from doctor, citizens can apply for a Document of Identity with the gender marker field left blank, then complete the passport application.

In New Zealand, people have the option of changing the gender on their passports, also to M, F, or X. To get a name change, a Family Court must approve. However to obtain the gender change (including to ‘X’), citizens must simply submit a statutory declaration indicating how long they have been living in their current gender identity. The declaration must also promise that should the person’s gender identity change in the future through a court process, a new application and full fee will apply in order to have the new gender identity recorded in the passport. Citizens are not required to change their name to apply for a change in gender (including the X) passport.

India has issued passports to people who identify as a third gender, denoted by an “E” for “eunuch” since 2005. Nepal’s Supreme Court established a third gender category in 2007, and a third gender passport case is currently pending in the Court. Bangladesh implemented a similar passport gender category in 2011. In line with what LGBT human rights experts support, all three South Asian countries rely on self-identification to determine gender on identity documents.

Policies such as Canada’s, however, can be harmful in that they reinforce the assertion that if other countries won’t recognize a third marker – be in “E” or “X” – governments ought to not issue such passports.

Some countries do not allow legal gender change at all; some insist that gender appearance and performance must match that expressed on travel documents; some require medical evidence to substantiate any discrepancy; and some require nothing more than self-identification to list one of not two but three gender markers.

So then how is gender standardized as bodies cross borders around the world?

For international standards, we turn to the International Civil Aviation Organization (ICAO) and the Convention on International Civil Aviation. According to the ICAO, there are four mandatory personal data points on all international travel documents: name, date of birth, nationality, and sex. ICAO standards for Machine Readable Passports indicate that sex may be listed as unspecified, both in the part inspected by humans, and that which is read by computers.

In the Visual Inspection Zone of the passport, the “sex” field must be filled in as follows:

Sex of the holder, to be specified by use of the single initial commonly used in the State where the document is issued and, if translation into English, French or Spanish is necessary, followed by a dash and the capital letter F for female, M for male, or X for unspecified.

In the Machine Readable Zone of the passport, sex must be marked as “F = female; M = male; Global Action for Trans* Equality. “While it is unlikely that any terrorists will be deterred by this silly piece of law, it violates all trans people’s right to freedom of movement and travel.”

What Gender Tells Us

The task of legally assigning sex or gender to citizens has come up relatively recently, and often only in countries whose medical institutions have developed extensive technologies which can alter bodies.

Matching appearance to documents is too often based on arguments of common sense that gender classifications are obvious and clear, and common sense that these real classifications uniform across administrative systems. Governments have a legitimate interest in knowing the sex or gender of their citizens – how else, for example, would they implement sex segregation in prisons, an essential protection included in virtually all of the world’s detention standards?

However, as international travel demonstrates, documents and the genders they list can indicate far more about the institutions that issue them than they do about the people carrying them, say, at the airport.

On Monday, Canada’s Foreign Minister spoke in London about Canadian foreign policy values. He slammed Uganda’s gay rights record, paid homage to the late David Kato and, toward the end of the speech, declared:

We will speak out on the issues that matter to Canadians – whether it is the role and treatment of women around the world, or the persecution of gays, lesbians, bisexual or transgendered persons…

If Canada’s policy on gender and air travel was developed in the name of security, international standards clearly show that argument to be weak. And if Canada’s government is going to push for LGBT rights in its foreign policy, it might consider allowing trans people to board planes within its borders.

Image by Noble

Kyle Knight is a Fulbright Scholar in Nepal where his research focuses on the LGBTI rights movement. He previously worked at Human Rights Watch, where he focused on children’s rights issue. For three years, he worked as a suicide prevention counselor for LGBTQ youth at the Trevor Project in New York City. He currently sits on the Trevor Project’s Advocacy and Public Policy Committee, is the president of the Duke University LGBT Network, and a is lecturer in Gender Studies at Tribhuvan University, Nepal’s state-run university in Kathmandu. You can follow him on Twitter @knightktm.

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News

‘Assassination of Political Rivals as an Official Act’: AOC Warns Take Trump ‘Seriously’

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14 hours ago

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April 25, 2024

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Democratic U.S. Rep. Alexandria Ocasio-Cortez is responding to Thursday’s U.S. Supreme Court hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was a U.S. president, and she delivered a strong warning in response.

Trump’s attorney argued before the nation’s highest court that the ex-president could have ordered the assassination of a political rival and not face criminal prosecution unless he was first impeached by the House of Representatives and then convicted by the Senate.

But even then, Trump attorney John Sauer argued, if assassinating his political rival were done as an “official act,” he would be automatically immune from all prosecution.

Justice Sonia Sotomayor, presenting the hypothetical, expressed, “there are some things that are so fundamentally evil that they have to be protected against.”

RELATED: Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

“If the president decides that his rival is a corrupt person, and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?” she asked.

“It would depend on the hypothetical, but we can see that could well be an official act,” Trump attorney Sauer quickly replied.

Sauer later claimed that if a president ordered the U.S. military to wage a coup, he could also be immune from prosecution, again, if it were an “official act.”

The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and an expert on Russia, nuclear weapons, and national security affairs, was quick to poke a large hole in that hypothetical.

“If the president suspends the Senate, you can’t prosecute him because it’s not an official act until the Senate impeaches …. Uh oh,” he declared.

RELATED: Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

U.S. Rep. Alexandria Ocasio-Cortez blasted the Trump team.

“The assassination of political rivals as an official act,” the New York Democrat wrote.

“Understand what the Trump team is arguing for here. Take it seriously and at face value,” she said, issuing a warning: “This is not a game.”

Marc Elias, who has been an attorney to top Democrats and the Democratic National Committee, remarked, “I am in shock that a lawyer stood in the U.S Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”

CNN legal analyst Norm Eisen, a former U.S. Ambassador and White House Special Counsel for Ethics and Government Reform under President Barack Obama, boiled it down: “Trump is seeking dictatorial powers.”

Watch the video above or at this link.

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Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

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17 hours ago

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April 25, 2024

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Legal experts appeared somewhat pleased during the first half of the Supreme Court’s historic hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was the President of the United States, as the justice appeared unwilling to accept that claim, but were stunned later when the right-wing justices questioned the U.S. Dept. of Justice’s attorney. Many experts are suggesting the ex-president may have won at least a part of the day, and some are expressing concern about the future of American democracy.

“Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6,” Axios reports. “A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.”

The most likely outcome “might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 case until after Inauguration Day in 2025.”

Slate’s Mark Joseph Stern, who covers the courts and the law, noted: “This did NOT go very well [for Special Counsel] Jack Smith’s team. Thomas, Alito, and Kavanaugh think Trump’s Jan. 6 prosecution is unconstitutional. Maybe Gorsuch too. Roberts is skeptical of the charges. Barrett is more amenable to Smith but still wants some immunity.”

READ MORE: ‘To Do God Knows What’: Local Elections Official Reads Lara Trump the Riot Act

Civil rights attorney and Tufts University professor Matthew Segal, responding to Stern’s remarks, commented: “If this is true, and if Trump becomes president again, there is likely no limit to the harm he’d be willing to cause — to the country, and to specific individuals — under the aegis of this immunity.”

Noted foreign policy, national security and political affairs analyst and commentator David Rothkopf observed: “Feels like the court is leaning toward creating new immunity protections for a president. It’s amazing. We’re watching the Constitution be rewritten in front of our eyes in real time.”

“Frog in boiling water alert,” warned Ian Bassin, a former Associate White House Counsel under President Barack Obama. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”

NYU professor of law Melissa Murray responded to Bassin: “We are normalizing authoritarianism.”

Trump’s attorney, John Sauer, argued before the Supreme Court justices that if Trump had a political rival assassinated, he could only be prosecuted if he had first been impeach by the U.S. House of Representatives then convicted by the U.S. Senate.

During oral arguments Thursday, MSNBC host Chris Hayes commented on social media, “Something that drives me a little insane, I’ll admit, is that Trump’s OWN LAWYERS at his impeachment told the Senators to vote not to convict him BECAUSE he could be prosecuted if it came to that. Now they’re arguing that the only way he could be prosecuted is if they convicted.”

READ MORE: Biden Campaign Hammers Trump Over Infamous COVID Comment

Attorney and former FBI agent Asha Rangappa warned, “It’s worth highlighting that Trump’s lawyers are setting up another argument for a second Trump presidency: Criminal laws don’t apply to the President unless they specifically say so…this lays the groundwork for saying (in the future) he can’t be impeached for conduct he can’t be prosecuted for.”

But NYU and Harvard professor of law Ryan Goodman shared a different perspective.

“Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward. It’d be a travesty for Justices to delay matters further. Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.”

NYU professor of history Ruth Ben-Ghiat, an expert scholar on authoritarians, fascism, and democracy concluded, “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and and involves giving them a respected platform.”

The Nation’s justice correspondent Elie Mystal offered up a prediction: “Court doesn’t come back till May 9th which will be a decision day. But I think they won’t decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.”

Watch the video above or at this link.

READ MORE: ‘Doesn’t Care if Pregnant Women Live or Die’: Alito Slammed Over Emergency Abortion Remarks

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Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

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20 hours ago

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April 25, 2024

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Justices on the U.S. Supreme Court hearing Donald Trump’s claim of absolute immunity early on appeared at best skeptical, were able to get his attorney to admit personal criminal acts can be prosecuted, appeared to skewer his argument a president must be impeached and convicted before he can be criminally prosecuted, and peppered him with questions exposing what some experts see is the apparent weakness of his case.

Legal experts appeared to believe, based on the Justices’ questions and statements, Trump will lose his claim of absolute presidential immunity, and may remand the case back to the lower court that already ruled against him, but these observations came during Justices’ questioning of Trump attorney John Sauer, and before they questioned the U.S. Dept. of Justice’s Michael Dreeben.

“I can say with reasonable confidence that if you’re arguing a case in the Supreme Court of the United States and Justices Alito and Sotomayor are tag-teaming you, you are going to lose,” noted attorney George Conway, who has argued a case before the nation’s highest court and obtained a unanimous decision.

But some are also warning that the justices will delay so Special Counsel Jack Smith’s prosecution of Trump will not take place before the November election.

READ MORE: ‘To Do God Knows What’: Local Elections Official Reads Lara Trump the Riot Act

“This argument still has a ways to go,” observed UCLA professor of law Rick Hasen, one of the top election law scholars in the county. “But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).”

The Economist’s Supreme Court reporter Steven Mazie appeared to agree: “So, big picture: the (already slim) chances of Jack Smith actually getting his 2020 election-subversion case in front of a jury before the 2024 election are dwindling before our eyes.”

One of the most stunning lines of questioning came from Justice Ketanji Brown Jackson, who said, “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into Office knowing that there would be no potential penalty for committing crimes. I’m trying to understand what the disincentive is, from turning the Oval Office into, you know, the seat of criminal activity in this country.”

READ MORE: ‘Doesn’t Care if Pregnant Women Live or Die’: Alito Slammed Over Emergency Abortion Remarks

She also warned, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? It’s right now the fact that we’re having this debate because, OLC [Office of Legal Counsel] has said that presidents might be prosecuted. Presidents, from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning, but once we say, ‘no criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”

“Why is it as a matter of theory,” Justice Jackson said, “and I’m hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts?”

“So,” she added later, “I guess I don’t understand why Congress in every criminal statute would have to say and the President is included. I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the President just like everyone else.”

Another critical moment came when Justice Elena Kagan asked, “If a president sells nuclear secrets to a foreign adversary, is that immune?”

Professor of law Jennifer Taub observed, “This is truly a remarkable moment. A former U.S. president is at his criminal trial in New York, while at the same time the U.S. Supreme Court is hearing his lawyer’s argument that he should be immune from prosecution in an entirely different federal criminal case.”

Watch the videos above or at this link.

READ MORE: ‘Blood on Your Hands’: Tennessee Republicans OK Arming Teachers After Deadly School Shooting

 

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