Sadly, it seems that people always look for some way around it, some way to legally discriminate, some loophole that allows them to continue to do what they do. Sometimes, too, these things crop up when you least expect them. Perhaps while trying to keep people safe, you might accidently make discrimination the law of the land.

For example, last July, a rule took effect in Canada, barring transgender people from air travel.

This rule was implemented by the Ministry of Transportation as part of new Identity Screening Regulations, and is part of a much larger body of rules under the Passenger Protect Program. Much of this program, including the use of “No-Fly” lists, would be familiar to any frequent travelers in the United Stated since the 11th of September 2001.

The rule itself states that “an air carrier shall not transport a passenger if... the passenger does not appear to be of the gender indicated on the identification he or she presents.” Other categories that would bar you from flight involve discrepancies with one’s identification, not resembling the photograph on their photo ID, or not appearing to be the age indicated on one’s identification paperwork.

More than just not being able to board a flight, there would be a fine of $5,000 for getting “caught” in any of the above situations.

Aside from the issues a pre-operative transsexual, or one who opts out of genital or other surgical reconstruction, it’s not uncommon to have discrepancies in one’s paperwork as you wait for the bureaucratic wheels to turn. If anything, this rule can ensnare a large number of transgender people, and disenfranchise many more.

I should also add that this bill did not require any formal legislation be passed to implement these rules. There was no public discussion period, nor even much notice until months after it was adopted. The rule went on the books shortly after their federal election and comes from a conservative Member of Parliament, Minister for Transport, Denis Lebel.

What yet remains unclear is if this was a case of governmental bungling and unintended consequences, or a deliberate attempt to bar transgender people from airplanes. I’ve seen arguments for both sides, and the timing of the rule—coupled with the method in which it was enacted—does certainly raise eyebrows.

During the height of terrorist related hysteria in the United States, the REAL ID act also pushed for gender markers as one of its few identity signifiers, yet did not provide for any exceptions nor any way to change one’s gender marker. While it remains largely unimplemented, it could have led to a disaster for those who are transgender and had to deal with getting identity paperwork updated. It’s not too much of a jump to see how this could have affected us much like Passenger Protect is affecting transgender Canadians.

For what it’s worth, Maryse Durette, the Senior Advisor of Media Relations for Transport Canada states that her department “is not aware of any case of a transgendered or transsexual individual in possession of a medical document who has not been permitted to board an airplane since the publication of the Regulations.” Durette also claims that the rule does not prohibit transgender people from flying, provided they have their paperwork in order. She may be right in this assumption, but the rule itself is deceptively unclear.

For this reason, I’m glad to see two recent clarifications to United States agencies that spell out their inclusion of transgender people, leaving no grey area:

1. For one, the Internal Revenue Service (IRS) has affirmed that transgender people can indeed deduct surgery and hormone costs from their taxes. While this was a change in the wake of the 2010 O’Donnabhain v. Commissioner ruling, it does fall in line with IRS procedure prior to the George W. Bush presidency.

2. Secondly, the Department of Housing and Urban Development (HUD) has proposed several new regulations to make it clear that all their programs are inclusive of gender identity and sexual orientation. This is in the midst of its 60-day comment period, after which these new rules will take effect.

Much like the above—and echoing the Passenger Protect rules—these are changes that have not come about due to the working of Congress. Indeed, given the fractured state of our congress today (as well as election year shenanigans) it is unlikely we’ll see anything transgender-related hit the President’s desk in 2012.

But perhaps we will see more rights gained not so much by passage, but by individual government departments looking at how they can best serve all of us, and making it clear in all policies that transgender people are indeed included.

It’s important to be explicitly included, if only to keep us from falling afoul from intended or accidental foul ups such as Canada’s Passenger Protect Program. Likewise, it’s important to see organizations like the IRS and HUD spell it out, lest someone think they can discriminate simply because it isn’t there. Anything else doesn’t cut it.

Gwen Smith sometimes needs it spelled out for her. You can find her on the web at GwenSmith.com.