Transgender patients can often experience health disparities due to stigma, isolation while seeking care, and discrimination. In many of the medical regulatory (College) and human rights complaints cases observed by the CMPA, miscommunication creates or contributes to a negative experience for transgender patients. It is important for physicians to be aware of the ethical and legal considerations when providing treatment or when asked to provide treatment, to transgender patients, and non-binary patients as well.
Understanding terminology
Transgender or trans describes a person whose gender identity does not correspond with the gender that they were assigned at birth. Transgender individuals may adopt a new name and new personal pronouns. Some transgender individuals undergo medical treatments or procedures to have their physical body match their gender identity.
Non-binary describes a person whose gender identity does not fit into the male/female binary, sometimes identifying with they/them pronouns.
Gender-diverse describes any individual with gender identities and gender expressions that differ from gender norms and includes transgender and non-binary individuals.
Human rights laws
All individuals have a right to access healthcare services without discrimination and harassment. Physicians must not discriminate based on gender identity when providing medical services.
While discrimination of transgender and non-binary individuals is considered in some jurisdictions as discrimination based on sex or gender, 1 several provinces and territories expressly recognize gender identity as a prohibited ground of discrimination 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. For example, the Ontario Human Rights Commission’s Policy on preventing discrimination because of gender identity and gender expression [PDF] expressly addresses issues related to transgender and non-binary individuals facing barriers to accessing healthcare services.
Policies and guidelines
The Canadian Medical Association’s Code of Ethics and Professionalism states that in providing medical services, physicians must “accept the patient without discrimination … such as on the basis of … gender identify or expression.” However, physicians have the right “to refuse to accept a patient for legitimate reasons,” and should not “overstep the limits of their knowledge and skills.”
Colleges also generally state 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. However, the refusal to provide a specific treatment at a patient’s request does not, in and of itself, constitute discrimination.
Names and pronouns
Physicians must ensure that they communicate with all patients in a sensitive, respectful, and dignified manner. Transgender and non-binary 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. Physicians should accommodate any such requests and address patients using their preferred names and pronouns.
Declining to provide care
While physicians must not refuse to treat transgender and non-binary 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.” 3
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 [their] career and medical practice.” 4
The Tribunal also addressed the complainants’ allegations regarding the surgeon’s demeanour in declining to provide 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, the complainant “may have found their visit to his office a much different and more positive experience.” 5
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 referring the patient to a specialist for the elements of care that the physician is unable to manage directly. The clinical decision for refusing to provide treatment should be communicated to the patient in a respectful, clear, and timely manner.
Changes to birth certificates and other official records
Some patients applying for a change in their gender as recorded on their birth certificate and other official government records may require a statement from a medical practitioner, including a treating physician, confirming that the patient’s gender as indicated on the government document does not correspond with the patient’s gender identity. CMPA members who have questions about how to respond to such requests may contact the CMPA for individual advice.
Risk management considerations
- Familiarize yourself and your staff with applicable human rights obligations and relevant College policies on equity and diversity.
- Ensure that you communicate with all patients, including transgender patients, in a sensitive and respectful manner. Be respectful of the patient’s choice of name and pronoun.
- If you are unable to provide the medical services requested because they are beyond your scope of practice or skill level, consider referring the patient to a qualified specialist in gender-affirming care.
- Record your discussions with the patient and document the reasons for the decision or referral in the patient’s medical record.
- Contact the CMPA for advice about your obligations in specific circumstances.
References
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Human rights codes in British Columbia, Alberta, Québec, New Brunswick, Yukon, and Nunavut
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Human rights codes in Saskatchewan, Manitoba, Ontario, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and the Northwest Territories
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Finan v. Cosmetic Surgicentre (Toronto) 2008, Ontario Human Rights Tribunal Case. Accessed May 2, 2023 from:
http://canlii.ca/t/1zrq0
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Ibid
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Ibid
