As recognition and acceptance of transgender individuals has increased over the years, so too (slowly) have the legal options available to those individuals to ensure that their gender identity is officially recognized. Such societal changes have included the availability of having one’s gender identity recognized on ID documents, including birth certificates. Volunteer and community programs, such as PBSC’s Trans ID Clinic in Toronto, also exist to help transgender individuals obtain such vital documentation.
However, while the various provinces may be making strides towards recognizing the gender identity of individuals during their lifetime, a recent news article highlights how provincial governments have failed to do so on a person’s death. As set out in the article, the gender provided on a death certificate is determined based on observable physical characteristics at the time of death or autopsy. Thus, for those who haven’t undergone gender confirmation surgery, their death certificate is likely to misstate the person’s gender identity.
For transgender individuals who are unable to obtain gender confirmation surgery or do not wish to undergo such procedures, this creates a grave concern that their identity will be erased on their death. For loved ones and the community who are left behind, the lack of proper identification of the deceased can also be painful.
The inability to obtain a
death certificate which properly reflects the gender identity of transgender individuals may also create legal difficulties once the person passes away. Death certificates are often required for various aspects of administering a deceased individual’s estate, from obtaining probate to having life insurance policies paid out. Where the death certificate contains discrepancies from other documentation, it may be more difficult to have a death certificate accepted as proof of an individual’s death. For example, imagine an individual who has a life insurance policy in which they are identified as male. The death certificate identifies that person as female. In attempting to have the life insurance policy paid out, the life insurance company may be unwilling to do so due to the question of whether the individual listed on the death certificate is, in fact, the same as the insured individual.
As a result of difficulties such as this, the article presents advice for the best way of avoiding such legal headaches: make a will and provide instructions to your executor as to your wishes. For those still on the fence about the utility of making a will, it’s important to know that when you die, the executor of your estate is the one ultimately in control of how you are buried and memorialized. Hence in order to ensure that one’s wishes are complied with, it is best to draft a will and appoint an executor (and alternative executor) who will respect one’s identity.
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