Could We Finally Have a Gender-Neutral Canadian Citizenship Law?

The proposed amendments under Bill C-71 may finally create truly gender-neutral Canadian citizenship law by eliminating outdated distinctions and ensuring equal citizenship rights for all descendants of Canadian ancestors.

Gender’s Role in Citizenship Law

Citizenship is a unique area of law, as it reflects the values of society at a given time. The laws governing citizenship are not just legal frameworks, they are a mirror of the values of society. This is why changes in citizenship laws often accompany significant social transformations. They must align with the evolving values and principles of the community.

The social changes of the 1960s perhaps challenged Canadian citizenship the most, as they brought about significant shifts in societal values and norms. The sexual revolution, along with other social movements, played a crucial role in promoting gender equality and challenging traditional gender roles.

The values which were most problematic can be seen in the citizenship by descent laws. Historically, citizenship by descent prioritized passing on citizenship by descent through male lineage, and the only exception applied to unmarried women. This reflected the patriarchal values of the time, which placed men in a dominant position in society and law.

1977 Reforms and the Charter

The first attempt to modernize the Canadian citizenship laws came in 1977, when the current Citizenship Act, R.S.C., 1985, c. C-29 (the “Act”) came into effect. The Act marked a significant shift in Canada’s approach to citizenship, as it made no distinction between men and women or marital status in a parent's ability to pass on citizenship.

While an attempt at progress, the 1977 Act was designed to be prospective, not retrospective, because the government feared a drastic expansion of citizenship to far too many people if they removed the historic gender discrimination, which only applied to children born abroad after 1977. The law continued to use the previous process for those born abroad prior to 1977 to Canadian married (at the time of the child’s birth) Canadian fathers or unmarried (at the time of the child’s birth) Canadian mothers, and included them in the citizenship scheme through a simplified registration process.

However, those born abroad prior to 1977 to Canadian mothers had to go through an alternate more complex application process. In 1997, the Supreme Court of Canada found in Benner v. Canada (Secretary of State) that retrospective gender discrimination was impermissible and found the inequitable process for Lost Canadians to violate Section 15 of the Charter and was not salvageable by s. 1. In Benner v. Canada (Secretary of State) [1997] 1 SCR 358, the Supreme Court of Canada found that the Act’s differential treatment of those born prior to 1977 to Canadian mothers violated s. 15 of the Charter and could not be saved by s.1.

Parliament responded by dealing with a very narrow set of reforms designed to fix the retrospective issues by reducing the complexity. In this case, they simply changed the special process. However, because the reforms were tailored so narrowly many of the retrospective issues remained. Many Canadians still lost their citizenship largely due to issues of gender discrimination. Thus, began this came of ping-pong, where courts would identify an issue, parliament would attempt to fix it with narrow set of changes.

One of the most significant attempts at reform were two sets of reforms, which were enacted in 2009 and 2015. These reforms were significant in that they retroactively restored Canadian citizenship on all Lost Canadians. It also deemed all their children to be Canadian citizens as well.

But these reforms also introduced the now infamous first-generation limit. The first-generation limit meant any child born in the second or subsequent generation would not be a Canadian citizen, unless their parent or grandparent was in the service of the Crown. These applied both prospectively to children born after 2009 reforms, but also those retrospectively pre-1977. Since under the laws as they were written pre-1977, citizenship by descent was determined largely by the parents’ gender and marital status, the effect of this reform was that it simply moved the discrimination from one generation to the next.

Bjorkquist and Bill C-71

The Ontario Superior Court’s decision in Bjorkquist on December 19, 2023 highlighted the unconstitutionality of the first-generation limitation to citizenship. One of the things it highlighted was how it applied inequitably to men and women, as men could still seek employment abroad, and have a child, while women could not.¹ 

In response, Parliament was compelled to act, leading to the introduction of Bill C-71: An Act to amend the Citizenship Act (2024). While the media mostly focused on the prospective changes, what stood out to citizenship practitioners was that it effectively deemed everyone who was born to a Canadian ancestor, before the bill becomes law, a Canadian citizen. This effectively gave Canadian citizenship to anyone who was born outside of Canada to a parent who was either born in Canada, or naturalized in Canada, at any point since the Battle of the Plains of Abraham.

While this might be seen as considerably broad, one of the impacts of this is that it would effectively give us a truly gender-neutral Citizenship Act.

There is precedent for this. Much like Canada, American citizenship law historically discriminated based on gender. Eventually Congress set a similar reset date under US Immigration and Nationality Act, 8 USC 1401. Much like with Canada, a realization was reached that this might be only way to remove historic gender discrimination from the Act.

Will This Create a Tidal Wave of Canadian Citizens?

This change would likely mean that millions of people will become Canadian citizens. By extending citizenship to anyone born to a Canadian ancestor before the bill becomes law, the scope of Canadian citizenship will expand significantly.

However, a limiting factor would be proving lineage, as the government will generally require proof that you are a descendant of the person. This will include official birth certificates. In fact, many provinces will not issue records that are more than 100-120 years old.

As such, while strictly speaking millions will qualify, only those who can provide proof can take advantage of the change. This might be the limiting factor.

1. Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152 at para 162 - 164