ST. JOHN’S, N.L. – A transgender activist vying for a non-binary birth certificate is taking legal action against the Newfoundland and Labrador government as part of an effort to have a gender other than male and female formally recognized on such documents.Gemma Hickey has filed an application with the province’s Supreme Court in St. John’s challenging the change-of-sex designation provision of the Vital Statistics Act, saying it is unconstitutional and violates provincial and federal human rights legislation.“I have a responsibility to myself as a person and to others like me because we essentially are erased. We don’t have any way to identify to show that we exist. It’s a human rights issue,” said Hickey in a phone interview Friday.“I would like my birth certificate to include how I identify. That would make me feel more fulfilled as a person and give me that legitimacy that I don’t have now.”Non-binary means the person does not identify as male or female.Hickey applied for a non-binary birth certificate in April and is believed to be the first in Canada to do so.On the change-of-sex designation form there were only two options — male or female — so Hickey wrote in “non-binary” and checked it off.Hickey says Service NL is still considering the application, and Hickey is without a birth certificate in the meantime, as the original was submitted with the application.The case will be in Newfoundland and Labrador Supreme Court on July 28 to set a date.The application argues the Vital Statistics Act “is unduly onerous and discriminatory because it pathologizes gender identity, deviance and diversity.”Hickey has taken testosterone and is transmasculine, but identifies as non-binary.Having to choose between male and female is discriminatory, said Hickey, and has led to uncomfortable situations.“When I go away and travel, they see my name is Gemma and that there’s a Ms. in front of it, and that leads to some embarrassing situations,” said Hickey, who also runs a foundation to help survivors of sexual abuse.“At one point I had a flight attendant argue with me because they thought I was in the wrong seat. These are situations that are embarrassing because there’s other people around. It affects my mental health and the way that I see myself and takes a toll.”Hickey said since applying for a non-binary birth certificate, people from all over the world have reached out.“They’re thanking me because they identify as non-binary,” said Hickey. “Even parents saying their kids are struggling with this and that they’re grateful I’m taking the lead.”Joshua M. Ferguson, an Ontario-born filmmaker, applied last month to have a change of sex designation from male to non-binary. Currently, Ontario offers gender-neutral options for drivers’ licences and health cards but not for birth certificates.Ontario’s minister of government and consumer services, Tracy MacCharles, said last month gender-neutral birth certificates could be issued in Ontario as early as next year, provided the province can work out bureaucratic hurdles involving other governments.Earlier this month, the Senate passed a bill that protects Canadians from discrimination based on gender identity or expression.Hickey’s lawyer, Brittany Whalen, said she will reference Bill C-16 during the July hearing.She said Hickey’s case is an important one, and she’s not aware of any others like it in Canada.“It’s a very important cause and our firm feels strongly about promoting diversity, inclusion and equality,” said Whalen, of Bob Buckingham Law.— By Aly Thomson in Halifax.Note to readers: This is a corrected story. Headlines on a previous version incorrectly stated that Hickey was denied a non-binary birth certificate.