During the bathhouse raids hundreds of people were arrested and subject to violence, not to mention outed which also had devastating consequences for many. The article explains the raids as the underpinning for gay right demonstrations, a social movement against police harassment, and ultimately the birth of Pride Toronto. This brief history lesson was a stark reminder for me that Pride is much bigger than its parties.

At the same time, I heard that there was a night march on June 27 to bring back the political, grassroots and non-commercialized aspects of the movement. I learned that some people feel the Pride Parade has become too corporate and lost its way. And it is clear there are still so many issues to be advanced.

As a lawyer I talk a lot about balancing. The law balances rights all the time, such as the right to free expression versus the right to be free from hateful speech, or the right of one person to privacy against the safety of many (think: airport security). Sometimes the balancing is offside and the scales of justice do need to be adjusted over time (think: transgender washroom access).  But what I really like about the language of “balance” is the inherent recognition of value to both sides. When we talk about balance we are saying I see your point even if I disagree with it, but my perspective has merit too, so let’s find a way for our viewpoints to co-exist harmoniously. There is something almost poetic about that kind of diplomacy, and it can give way to solutions that strike a reasonable compromise.

And so, what one person sees as an overly corporate event that businesses, politicians and other stakeholders use for publicity, another person truly sees as a celebration of the mainstream acceptance of LGBTQ people in the city. I’m glad to see the night march evolved to be an additional separate activity rather than a boycott of the parade.

On that note I want to wish everyone a Happy Pride! Regardless of whether you do or do not accept Toronto Police Chief Mark Saunders apology for the bathhouse raids, or your feelings toward the splashy parade, Pride is undoubtedly a reminder of the past, a celebration of the present, and a platform for the future. Kudos to all the organizers, volunteers, and everyone else working hard to make 2016 Pride Month a success!

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Although no one can undo the humiliation that this individual felt, as a health lawyer who regularly works with both fertility clinics and patients I thought I would make suggestions that could help others avoid this kind of unfortunate circumstance.

1. HAVE THE FERTILITY TALK

In the past I have suggested that people fighting cancer “have the fertility talk” with their doctors to ensure that fertility preservation happens early on (and not assume the doctor will bring it up). I make the same suggestion to anyone considering starting hormones.  It may no longer be possible – physically or emotionally – to take the steps to preserve sperm or eggs after hormone treatments have begun.

This man discussed how going off hormones made him emotional and affected his appearance and confidence. It is difficult to imagine the stress associated with going off hormones, but I suspect in most cases it would be best to have the fertility talk and undergo fertility preservation procedures before transitioning.

2. WRITE A LETTER

Any fertility clinic I have dealt with truly does want to serve patients well and to be inclusive. But as many people discover, going through training does not always result in proper service, and there may be some staff who don’t seem to absorb the message.

To a transgendered person undergoing fertility treatments, I would suggest writing a letter to the people who will be taking care of you and explaining your expectations and how you want to be treated. This includes not only health professionals, but legal and surrogacy professionals as well.  Invite questions and be specific. For example, in this case the patient felt uncomfortable sitting in a hospital gown in a waiting room filled with female patients. Perhaps a letter requesting a private waiting room could help someone else avoid the same negative experience in the future. While I don’t want to suggest that all of the responsibility be on the patient, the reality is that client-initiated requests will likely (hopefully!) be respected and result in better service. As well, not every transgendered person will necessarily want the same accommodations – perhaps someone else would feel more isolated being made to wait alone and miss out on the social aspects of the waiting room.

And health professionals should not be shy about initiating this discussion either. Open dialogue can help to serve everyone’s interests.

3. BRING A SUPPORT PERSON

In this particular situation, the man – who is highly educated, speaks English and is employed in the health sector – felt vulnerable. No one is immune from feeling powerless.

Fortunately he was accompanied by his wife who was able to serve as an advocate. Having a support person can reduce feelings of isolation and empower patients to speak up if they feel uncomfortable. When we are in the role of the patient any of us can feel weak, tired, exposed, embarrassed or subject to reprisal. A partner, friend or relative can advocate, distract and encourage.

4. CONSIDER YOUR GOALS BEFORE TAKING ACTION

If you are not treated properly, think about what it is that you want done. Do you want an apology? Do you want your story to be validated? Do you want to ensure no one will be treated that way again? Do you want money? Do you want to see someone punished? Do you want to go back in time and re-write history? (the last one is a bit tricky!)

I ask many of my clients who feel mistreated by someone in the health care system the same question – what is your goal? Many people are able to articulate their frustrations, but have not yet considered what they hope to achieve. The goal directs the course of action.

Once we discuss the matter, I learn that people who feel wronged often want accountability and to see systemic change. In those cases we brainstorm what changes they want to see and how we can make it happen.

I would encourage health care providers in general to be open to those discussions, and not to react defensively and assume you are going to be sued or subject to a human rights complaint. I find that most people don’t want to litigate; they want to be heard and to make a difference to others.

Photo credit: jakebwotha via Foter.com / CC BY-SA

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This is a bill that was introduced in November 2015 for the purpose of achieving greater equality for families. It proposes a framework that would allow same-sex couples, couples in which one parent is transgendered, and families that have more than two parents, to go through a smoother and less discriminatory process to become recognized as legal parents of their children.

As a lawyer I feel like a representative of the legal system and am embarrassed explaining to female same-sex couples that the non-birth mother will have to adopt her own child from their sperm donor (which is not only unfair but particularly absurd if she is also going to the biological mother via IVF). I am equally embarrassed to tell male same-sex couples who have a child through surrogacy that they must cross out the word “mother” on birth registration forms and hand-write the word father. After going through the long surrogacy journey and finally being declared parents by a court, this seems like a slap in the face. Cy and Ruby’s Act proposes to amend the Vital Statistics Act to use more gender-neutral language rather than “mothers” and “fathers”. It clarifies that a donor is not, simply by virtue of providing sperm or egg, a parent. These are all welcome changes and, quite frankly, well overdue.

If the bill passes, known donor agreements would still be entered into, which is beneficial for all parties because they address far more than parentage. For example, some donor agreements include a commitment that the donor will inform the parents if the donor subsequently has a child or donates to someone else. This ultimately allows the donor-conceived child to know about any half-siblings. Or, a donor may have an obligation to notify the parents if the donor learns about a genetic condition in the donor’s family that could affect the child.

The Act also impacts surrogacy in Ontario. This is where I do have a critique of the bill. It proposes that there be prescribed forms, which arguably could be interpreted to replace surrogacy contracts (even if that was not the intention of the drafters). This part is very concerning to me and will hopefully change or be clarified before the bill becomes law. Surrogacy contracts are typically over 20 pages and highly customized for every client. More often than not they go through several revisions as the parties negotiate through their lawyers. The process of creating a contract typically involves legal advice, which can help people avoid engaging in criminal conduct. Like donor agreements, surrogacy contracts address A LOT more than simply who is a parent. Contracts protect everyone involved and, I believe, are a big part of why there are so few surrogacy cases in Canada that result in legal conflict. There has been some discussion that the language of prescribed “forms” be changed to prescribed “criteria”, which would better serve parents and surrogates alike. It will still be necessary to go to court for declarations of parentage.

At this point the bill is not yet law, so for the time being the status quo remains. Regardless of whether the bill becomes law, and regardless of sexual orientation, if you are planning on having a child through surrogacy, known sperm/egg donation, or any other relationship in which more than two people are going to be the child’s parents, it is strongly recommended that you consult with a lawyer and enter into an agreement with the other parties. The benefits are not only legal protection in the event of a dispute, but helping to ensure everyone is on the same page and has the same expectations (which ultimately helps prevent disputes from occurring). The risks of not having a contract are far too significant (such as custody battles and massive legal fees) to leave to chance.

To quote a few of the politicians from the debates about this bill:

“The basic notion of this bill is really quite simple: All parents should have equal rights under the law.” Miss. Monique Taylor

“It is so imperative that we take the time to get this right and consider the implications of any changes we make”.  Ms. Sophie Kiwala

“This is what it’s all about: love, at the end of the day.” Mr. Tim Hudak

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It didn’t take long to realize that many of my blogs this year had an underlying theme – discrimination. I blogged about LGBTQ access to IVF funding, government forms becoming gender neutral, the legalization of same-sex marriage around the world, and the addition of gender identity to the Canadian Human Rights Act. I blogged about whether a doctor could refuse to treat patients because of their sexual orientation, and about a proposed B.C. law school that wants to exclude gay students on religious grounds. I heralded the progress being made to advance LGBTQ rights on judicial, systemic and legislative levels. Although there is more to be done, there is no question that LGBTQ rights are moving in the right direction, and discrimination is increasingly being sanctioned.

As barriers that affect each of us continue to erode, we have a collective responsibility to help others who continue to experience discrimination, and to avoid becoming perpetrators of discrimination ourselves. And that, my friends, is my proposal for your New Years’ resolution. Forget going to the gym or cutting back on the cookies. Instead, think twice when talking about a person with mental health issues – it is very easy to use words that are extremely hurtful and that fail to recognize that mental illness is truly a medical condition. Perhaps you are a silent bystander to racist jokes in the workplace. Maybe you tolerate the disrespect of an older person without even realizing that you would intervene if the person was younger. We all want to live happy and peaceful lives, and to be treated fairly despite our differences. So I encourage you –nay, challenge you! – to keep your eyes peeled for discrimination, speak up and treat each other like it is the holiday season all year long.

Wishing you and yours a Happy New Year!

Photo credit: Rosa Dik 009 — on & off via Foter.com / CC BY-NC-SA

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As of December 2015 the Ontario government will start to pay for one round of IVF for people with infertility, which includes people who cannot conceive naturally due to sexual orientation (i.e. “non-medical infertility”). This is great news because many same-sex couples cannot become parents due to financial barriers, as IVF costs many thousands of dollars.

Gay couples will be able to access funding to retrieve eggs from an egg donor, create embryos with their own sperm, and then have the embryos transferred to a surrogate one at a time to avoid multiples. Lesbian couples will be able to access funding to retrieve eggs from one partner, create an embryo with donor sperm, and then transfer the embryo to the other partner, should that be how they choose to conceive.

Transgendered individuals will also able to access the funding. For example, a transgendered male may have frozen eggs prior to transitioning. The eggs can be thawed and fertilized using a donor or partner’s sperm, or fertilization can occur prior to freezing. The embryo could then be implanted into a person’s uterus, either a surrogate, female partner or FTM person depending on the circumstances of the transition. People pursuing single parenthood will also be eligible regardless of sexual orientation.

A surrogate or donor who helps another person create a family will remain eligible for funding to have their own child through IVF. The funding won’t cover everything, but it will help offset the costs of fertility treatments tremendously. Other costs that may still have to be incurred include costs relating to fertility medications, laboratory procedures, surrogacy agreements, donor agreements, independent legal advice for surrogate/donor, and DNA testing. If an embryo transfer does not result in a pregnancy, the intended parents can try again with the remaining frozen embryos. Once the embryos are gone, intended parents will have to pay out-of-pocket to make more embryos.

But don’t forget…

In cases involving known donors or surrogates, it is REALLY important that all parties receive legal advice and that the parties enter into an agreement – BEFORE embryos are created. The contract should not be of the fill-in-the-blank variety, but customized to your situation.

Will you want the donor to play a part in your child’s life? Or, if you are the donor, will you want to be involved with the child? How will the child refer to the donor or surrogate? For example, is the sperm donor going to be “uncle”? Will the surrogate try IVF again if the first attempt fails? Will the intended parents reimburse the donor or surrogate for any out-of-pocket expenses? Will the surrogate abort the pregnancy if there is a high chance of a genetic disorder? Where will the child be born? In a hospital? With a midwife? Is the donor willing to donate again so that a younger child can be genetically related to his or her sibling?

Too often I see clients who acquired a contract and just inserted their own names without any discussion about the relationship. Or they re-used their own contract even though the donor or surrogate is a different person the second time around. THIS IS A BAD IDEA! There are many legal ramifications to third party reproduction and there are multiple opportunities for disputes to arise. While the process usually goes very smoothly, it does so because there are many checks and balances to ensure this, with a contract being one of several important measures.

The IVF funding will provide a wonderful opportunity for people to become parents. For those who long to be parents this is an invaluable gift, but please think through and discuss your relationship with the third party, and put your agreement in writing. Creating your family is not the place for short-cuts.

I am very excited about the opportunities this funding brings and cannot wait to help more people create their families in 2016!

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Thankfully, someone has.

A motion was introduced last week by the Sudbury MPP Glenn Thibeault who had the issue brought to his attention by a single mother in his riding. Specifically, she felt excluded when completing school registration paperwork for her child because the forms were clearly created for two-parent families.

The MPP introduced the following motion:

I move that, in the opinion of this House, the government of Ontario should replace gendered terminology with gender-neutral and inclusive language on all government forms as they are updated, amended, created, or replaced, in order to reflect the diverse nature of our province, including, but not limited to replacing the terms “mother” or “father” with terms such as “parent” or “guardian” to better recognize the rights of LGBTQ parents, and others.

The motion passed unanimously.

There has been some backlash to the motion by people who feel political correctness is going too far, or that the motion suggests the elimination of the words mother and father altogether. I suspect the critics did not take the time to read the transcripts. Having reviewed the official records of the Legislative Assembly, it is clear that the intention was not political correctness for its own sake, but to ensure inclusiveness of families in all their forms.

Due to the administrative burden, it is anticipated that the changes will take many years to implement.

Photo credit: Al_HikesAZ / Foter / CC BY-NC

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Italy does not allow same-sex couples to marry or enter into civil unions. To the frustration of many, attempts at introducing legislation have been procedurally blocked by the opposition. One junior minister even decided to go on a hunger strike to bring attention to the issue. In true Italian style, he survived on two daily cappuccinos.

At the end of July 2015 the European Court of Human Rights decided that Italy should introduce laws to protect the rights of same-sex couples. The case was brought to the Court by three couples who argued that the country was discriminating against them on the basis of their sexual orientation because, “Italian legislation did not allow them to get married or enter into any other type of civil union”. Each couple had previously tried, unsuccessfully, to marry.

As is usually the case, the Court reviewed relevant precedents. One of the more troubling cases referred to was a situation of a “forced divorce” following a person’s gender reassignment surgery. In other cases couples had gotten married abroad, but then could not have their relationship legally recognized in Italy.

The Court also looked at other European countries and noted that 11 countries recognize same-sex marriage, and another 18 member states authorize civil partnerships for same-sex couples. Twenty-four of 47 Council of Europe member states have legislation recognizing same-sex couples in some form.

The Court unanimously decided that there was a violation of the couples’ human rights and ordered the government to pay them damages (i.e. money).

It was subsequently reported that the Italian Prime Minister promised to introduce legislation that would provide same-sex couples with rights to civil unions (which is not the same as marriage, but is at least progress). This would be a positive development because the primary remedy stemming from the litigation was a recognition of the infringement and the ordering of damages to the plaintiffs. Legislation will have a broader impact because it will (presumably) apply to all same-sex couples in Italy. As well, this announcement was sufficient for the Italian minister to end his hunger strike.

Hopefully he will continue his advocacy work and find other ways to “espresso” himself!

Photo credit: Foter / CC BY

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The case was brought to court by 14 same-sex couples, and two men whose partners are deceased. They claimed that their rights were violated by being denied the right to marry, or have their marriages fully recognized (where performed out of state). Cases were brought in several different states and then later combined as they made their way through the judicial system. The decision, which was not unanimous, was released on June 26, 2015.

In its reasons for the decision, the Court looked at the history of marriage and how marriage is an evolving institution in society. It pointed to the following examples:

• That arranged marriages used to be far more popular and have declined over time
• That marriage is no longer tied to the capacity to procreate (they pointed to the many straight couples who cannot or choose not to have children)
• That same-sex couples today do create families and face hardships being legally recognized as their children’s parents
• That women’s rights have evolved such that they are now equal partners in marriage
• That prisoners have been granted the right to marry
• That interracial couples used to be prohibited from marrying and are now permitted to do so
• That homosexuality used to be treated as an illness and criminal activity, and that it has since been recognized that “sexual orientation is… a normal expression of human sexuality”

The Court found that same-sex couples are denied “the constellation of benefits that the States have linked to marriage”, and that excluding same-sex couples from marriage demeans them and imposes stigma. The decision concluded with the following statement:

“The Court, in this decision, holds that same-sex cou­ples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the grounds of its same-sex character.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

It is often shocking to see how slowly the law can move forward, but always reassuring when progress is made. Congratulations to our friends south of the border on this momentous event!

Photo credit: dbking / Foter / CC BY

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It is heartbreaking to think that people in their golden years need to hide their identities to make life tolerable. Over the last few years increasing attention has been paid to LGBTQ residents in long-term care, and how many people go back into the closet during those years. The story that brought me to tears was the one about a man who felt he had to be behind two locked doors just to give his partner a hug.

Universities are studying the issue and the City of Toronto even published a toolkit to assist homes to become more inclusive.

Part of my practice as a health lawyer involves giving legal advice to adult children whose parents are in long-term care. Later this month I will be attending a conference that will bring together family members of long-term care residents from across Ontario. Many of these family members have formed “family councils”, which are permitted under the Long-Term Care Homes Act. The councils have actual legal powers and may bring attention to systemic issues in the home. Any family member or person of importance to the resident can start or join a family council.

I have seen how the actions of one caring family member can make a difference. If you have a loved one living in long-term care, I encourage you to get involved with the family council. June is the perfect month to put the topic of LGBTQ awareness on the table. The toolkit mentioned above provides examples of successful programs, such as Pride flag-raising; film programs, services for World AIDS day, and bingo led by a well-known drag queen. On a more systemic level, changes have been suggested that contribute to creating welcoming environments, such as staff training, amending heteronormative language on forms, and displaying LGBTQ positive signs and images.

If you are involved with a family council I encourage you to explore these ideas even if the person you love is not a member of the LGBTQ community. After all, other residents surely are and they may not have any advocates, or they may not have come out of the closet to their families.

By advocating to implement small changes we can improve the quality of life of residents in long-term care and ensure that all residents are free to be themselves.

Photo credit: simaje / Foter / CC BY

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The first paper I ever published was about access to health care among Ontario’s homeless population. I explored a cross-section of factors, such as mental illness, gender and race. One of the lessons that stands out most from my research is that discrimination in the health care system is very real, and its consequences profound. As well, discrimination can be subtle, it may be indirect and unintentional, and even performed by well-meaning individuals.

Refusing to treat a person on discriminatory grounds can lead to long-term effects on a person’s health. The patient may have difficultly building a trusting relationship with health care providers and may delay seeking health care until a medical problem is very advanced. The same issues can arise among LGBTQ patients who experience discrimination. A recent study (which I blogged about here) found that transgender patients avoid medical care because of discrimination and/or the expectation of discrimination.

Acknowledging that there are health consequences that flow from discrimination, the question remains: is a doctor (or other health care provider for that matter) allowed to refuse to treat patients because of their sexual orientation or identity?

In Ontario a refusal to provide health care services solely on the basis of a person’s sexual orientation or identity is contrary to the law. The Human Rights Code  very clearly states that:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Some of the health regulatory colleges have reiterated this message. The College and Physicians of Surgeons of Ontario states that “Where physicians choose to limit the health services they provide for reasons of conscience or religion, this may impede access to care in a manner that violates patient rights under the Charter and Code”.

Unfortunately, there are times when an unwillingness to treat is masked under a seemingly legitimate rationale. The Winnipeg couple mentioned above was told their doctor did not have “experience” treating lesbians. I have personally seen other cases where a lack of clinical competence is cited as the reason for the refusal. For example, a refusal to provide care to a person recovering from sex reassignment surgery.

Fortunately, a person who experiences discrimination in the health care system has options to hold the discriminator in question accountable. Some of those options do not have to be very costly for the patient, though they will often require seeking legal advice and being willing to confront one’s health care provider, which is no easy task for a person who feels marginalized and discriminated against.

Photo credit: lydia_shiningbrightly / Foter / CC BY

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