Legal and regulatory proceedings

Navigating legal or regulatory processes

Treating transgender individuals

Originally published June 2015, revised July 2015
P1503-6-E

An increase in complaints by transgender patients alleging discrimination points to the need for physicians to be aware of the ethical and legal considerations when providing treatment, or when asked to provide treatment. In many of the medical regulatory (College) and human rights complaints cases observed by the CMPA, miscommunication creates or contributes to a negative perception by transgender patients that they are being treated differently than other patients.

Human rights laws

Transgender individuals have a right to access healthcare services without discrimination and harassment. Physicians must not discriminate based on gender identity or gender expression when providing medical services.

While discrimination of transgender individuals is considered in some jurisdictions as discrimination based on sex or gender,1 several provinces and territories have expressly recognized gender identity and gender expression in their human rights legislation.2

Statements by human rights commissions

Some human rights commissions have issued policies and guidelines addressing discrimination against transgender individuals. These documents may be useful resources for physicians seeking to understand their legal obligations and can be found on the website of each provincial or territorial human rights commission.

In particular, the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression,3 and the Manitoba Human Rights Commission’s Guidelines on protections from discrimination on the basis of gender identity4 expressly address issues related to transgender individuals facing barriers to accessing healthcare services.

Policies and guidelines

The Canadian Medical Association’s Code of Ethics states that in providing medical services, physicians must “not discriminate against any patient on such grounds as … gender.” However, physicians have the “right to refuse to accept a patient for legitimate reasons,” and should “recognize [their] limitations and, when indicated, recommend or seek additional opinions and services.”5

Colleges in Canada generally have stated that physicians must not refuse to accept a new patient, refuse to provide healthcare to an existing patient, or terminate a physician-patient relationship, on the basis of a patient’s gender identity or expression. However, the refusal to provide a specific treatment at a patient’s request does not, in and of itself, constitute discrimination.

Understanding the term “transgender”

“Transgender” is a widely-used broad term to describe individuals with diverse gender identities and gender expressions that differ from stereotypical gender norms.6

The term “gender identity” typically refers to each person’s internal, individual experience of gender.7 The term “gender expression,” on the other hand, generally refers to how people publicly present their gender, such as through behaviour and outward appearance. Some transgender individuals undergo medical treatments or surgical procedures to align their bodies with their gender identity.8

Common issues

A review of the CMPA’s cases and inquiries involving transgender patients reveals some common issues for physicians to consider and which can help to minimize their medical-legal risks.

Names and pronouns

Physicians must ensure that they communicate with all patients, including transgender patients, in a sensitive, respectful, and dignified manner.

Transgender individuals may express a desire to be called by a name that differs from their legal name, or to be referred by pronouns that match their gender identity. Where possible and reasonable to do so, physicians should strive to accommodate any such requests.

The Manitoba Human Rights Commission offers the following example of how a transgender patient might be accommodated in this regard: “At the request of a patient who is transgender and has a legal first name not usually associated with their gender identity, a medical clinic changes its practice of calling out patients’ first and second names as they appear on Manitoba Health Registration cards.”9

In a recent Ontario College decision, a physician was cautioned regarding the quality of his communication with a patient who had transitioned from female to male. The physician repeatedly referred to the patient as “she” and to transgender individuals in general as “you people,” which the College described as “fail[ing] to display a sufficient degree of sensitivity to the patient.”

Declining to provide care

While physicians must not refuse to treat transgender patients based on discriminatory reasons, they are not required to provide care that exceeds their scope of practice.

In an Ontario Human Rights Tribunal case, the Tribunal dismissed a complaint against a cosmetic surgeon who was accused of discrimination for declining to perform a labiaplasty and breast augmentation on two transgender patients. The Tribunal accepted that the surgeon did not have the requisite expertise to perform the operations, and observed that “for professionals, knowledge of the limits of one’s own expertise and skills is an important part of good practice, fulfilling professional obligations, and serving the public adequately.”10

The Tribunal held that there was no obligation for physicians to obtain significant new qualifications and training to accommodate a transgender patient. Such a requirement would amount to an “improper interference” in a physician’s “professional autonomy…in determining the nature of his career and medical practice.”11

The Tribunal also addressed the complainants’ allegations regarding the surgeon’s demeanour in declining to provide them treatment. It accepted that the surgeon’s style of communication was “abrupt and dismissive,” and observed that had he conveyed the reasons for not being able to treat the patients more appropriately, they “may have found their visit to his office a much different and more positive experience.”12

A physician who feels unable to provide medical care to a transgender individual because the patient’s needs are beyond the physician’s expertise or clinical competence may want to consider the following:

  • referring the patient to a specialist for the elements of care that the physician is unable to manage directly
  • reviewing the College’s policies on ending the physician-patient relationship
  • communicating to the patient, or prospective patients, the clinical decision for refusing to provide treatment in a clear, accurate, and timely manner

Changes to birth certificates

Most provinces and territories allow individuals to change their gender as recorded on their birth certificates and other official government records. In many cases, these processes are available only after gender reassignment surgery and require a physician’s confirmation that the individual’s anatomical sex structure has changed.

Physicians may find it challenging in these circumstances to assess whether an individual’s sex has clinically changed, particularly in cases of patients who are in the process of transitioning or who have had partial surgery. Physicians facing these types of issues may contact the CMPA for individual advice.

Risk management considerations

  • Familiarize yourself with applicable human rights obligations and relevant College policies.
  • Provide medical services without discrimination. If you are unable to provide the medical services requested because they are beyond your scope of practice or skill level, consider making a referral to a qualified specialist. Communicate your clinical decision for refusing to provide care in a clear, accurate, and timely manner.
  • Record your discussions with the patient and document the reasons for the decision or referral in the patient’s medical record.
  • Ensure that you communicate with all patients, including transgender patients, in a sensitive and dignified manner. Be respectful of the patient’s choice of name and pronoun.
  • Contact the CMPA for advice about your obligations in specific circumstances.
 
 

References

  1. Human rights codes in British Columbia, Alberta, Québec, New Brunswick, Yukon, and Nunavut
  2. Human rights codes in Saskatchewan, Manitoba, Ontario, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and the Northwest Territories
  3. Ontario Human Rights Commission, “Policy on preventing discrimination because of gender identity and gender expression,” 2014. Accessed January 28, 2015 from: http://www.ohrc.on.ca/sites/default/files/Policy%20on%20preventing%20discrimination%20because%20of%20gender%20identity%20and%20gender%20expression.pdf
  4. Manitoba Human Rights Commission, “Guidelines on protections from discrimination on the basis of gender identity,” 2010. Accessed January 28, 2015 from: http://www.manitobahumanrights.ca/publications/guidelines/gender_identity.html
  5. Canadian Medical Association, “Code of Ethics,” 2004. Accessed January 28, 2015 from: https://www.cma.ca/En/Pages/code-of-ethics.aspx#
  6. Ontario Human Rights Commission, “Policy on preventing discrimination because of gender identity and gender expression”, 2014. Accessed January 28, 2015 from: http://www.ohrc.on.ca/sites/default/files/Policy%20on%20preventing%20discrimination%20because%20of%20gender%20identity%20and%20gender%20expression.pdf
  7. Manitoba Human Rights Commission, “Guidelines on protections from discrimination on the basis of gender identity,” 2010. Accessed January 28, 2015 from: http://www.manitobahumanrights.ca/publications/guidelines/gender_identity.html
  8. Ontario Human Rights Commission, “Policy on preventing discrimination because of gender identity and gender expression,” 2014. Accessed January 28, 2015 from: http://www.ohrc.on.ca/sites/default/files/Policy%20on%20preventing%20discrimination%20because%20of%20gender%20identity%20and%20gender%20expression.pdf
  9. Manitoba Human Rights Commission, “Protections from discrimination based on gender identity — Your rights, your obligations,” April 2010. Accessed May 26, 2015 from: http://www.manitobahumanrights.ca/publications/guidelines/gender_identity.html
  10. Finan v. Cosmetic Surgicentre (Toronto) 2008, Ontario Human Rights Tribunal Case. Accessed May 26, 2015 from: http://canlii.ca/t/1zrq0
  11. Ibid
  12. Ibid

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.