Executive Summary
Background: In recent years, Canada has seen significant law reforms aimed at enhancing the legal protection and recognition of trans, Two-Spirit, and non-binary people. Still, community experts and researchers report that numerous and intersecting structural barriers continue to shape these persons’ access to new legal protections, their relationship to laws and legal systems, and their overall life outcomes. This report examines the extent and effects of the legal problems experienced by these individuals, by presenting evidence from a qualitative study that was co-led by a team of researchers and community experts from Carleton University and the community organization Action Santé Travesti(e)s et Transsexuel(le)s du Québec (ASTT(e)Q), with support from the Community-Based Research Centre (CBRC).
Methods: Research consisted of twenty-seven (27) semi-structured interviews with trans, Two-Spirit, and non-binary people recruited across Canada in 2020 and 2021. Seventeen (17) participants were recruited online through social media posts and emails shared across Canada. Ten (10) participants were recruited through ASTT(e)Q, because the communities of people who access that organization’s services would likely not have been reached through online recruitment methods. Participants were selected to cover a range of demographic profiles. Once anonymized, interview transcripts were coded and analyzed by the principal investigator and co-investigators in collaboration with community researchers.
Section 1 – Socio-Legal Status: The term socio-legal status explains how trans, Two-Spirit, and non-binary people’s legal problems are caused by interconnected and mutually constitutive social and legal dynamics. Social status refers to one’s social standing relative to others in society (e.g., their gender, race, health status, (dis)ability, class, age). Our evidence demonstrates that people’s legal burdens are often shaped by the interactions between and compounding effects of numerous social locations. Legal status refers to how laws, policies, regulations, and the institutions and actors who enforce them delimit people’s access to legal protections and contribute to producing and maintaining their cumulative legal problems. Legal status may include one’s immigration status, civil status, Indian status, or having a criminal record. Socio-legal status addresses how social and legal statuses are interconnected; how they influence or produce individuals’ and communities’ legal problems; and how they shape individuals’ and communities’ access to resources, opportunities, entitlements, and protections, including the protection of their rights.
Section 2 – Legal Problems: Findings show that many of the serious legal problems experienced by trans, Two-Spirit, and non-binary people have lasting social and legal consequences that expose them to additional problems in the future. This report therefore presents the types, severity, and immediate impacts of the legal problems that participants faced in the previous three (3) years, while also attending to the longer-term consequences of previous or ongoing problems.
- Legal Statuses: Interviews covered issues related to criminalization, citizenship and immigration, identity documents, child and youth protection services, and conjugal and familial relationships. Results show that legal statuses can produce and maintain legal problems by placing a person in direct conflict with legal systems and limiting or denying access to protections, services, opportunities, and advantages. Interviews also revealed that the mere existence of a law or policy can have serious and harmful impacts on people’s lives, rights, and opportunities, regardless of its enforcement.
- Economic Security and Standard of Living: Access to employment and to safe and equitable working conditions was a significant source of problems for participants, in the context of both legal and criminalized labour sectors (e.g., selling sexual services, selling drugs). Numerous participants relied on income support and other forms of government assistance, which they overwhelmingly described as inadequate to cover everyday expenses and difficult to access in the first place. Persons with a precarious socio-legal status were particularly likely to find themselves chronically underhoused, periodically homeless, or living in unsafe or unsanitary dwellings. Participants also reported numerous problems in the education system, with little or no recourse available.
- Health Care and Services: Several participants reported mistreatment, neglect, and abuse by health personnel. These experiences often prevented or discouraged them from accessing essential forms of care. Participants also spoke of the inadequate public health coverage available to people who seek medical transition (e.g., access to hormones and/or surgical procedures), and of the limited or non-existent administrative and legal remedies available to overcome the barriers they encountered across health care and services.
- Violence and Other Forms of Abuse: Every participant in this study reported experiences of violence and abuse, including incidents in interpersonal and institutional contexts, as well as structural forms of violence and harm across various spheres of a person’s life. These experiences included verbal and psychological harassment and abuse, physical violence, and state violence. State violence refers to how state institutions, laws, policies, programs, procedures, practices, actors, and agents contribute to producing, maintaining, or legitimizing the subordination and abuse of certain individuals and communities.
- Detention Facilities and Law Enforcement: Detention was another site of serious problems for participants, not only because being incarcerated is in itself a form of extreme hardship and deprivation with harmful repercussions on people’s lives and communities, but also because trans, Two-Spirit, and non-binary people face additional issues both within detention and carceral centers and upon their release. Moreover, nearly all participants who reported any contact with criminal law enforcement (especially with police) described their interactions as harmful or otherwise negative. Indigenous, Black, and racialized participants — including participants who are migrants and/or criminalized — reported the most frequent, recurring, and violent encounters with law enforcement.
Section 3 – Legal and Administrative Systems: Sources of Legal Problems and Barriers: Few participants explicitly stated that they had engaged in legal or administrative procedures with the intent of resolving their problems. Indeed, for most, legal and administrative systems were not the solutions to their problems but the source of their legal problems (e.g., laws and policies that determine their immigration status or criminalize their activities). Many laws, policies, and procedures in themselves constituted the legal problems reported by participants. This is because these laws, policies, or procedures placed participants in direct conflict with the law, law enforcement, and legal systems, or otherwise created conditions of precarity, exclusion, or marginalization.
Participants also reported numerous barriers and forms of mistreatment across legal and administrative systems, including (but not limited to) when they initiated engagement with these systems to resolve their problems. Many participants avoided contact or communication with legal and administrative systems because of the barriers and mistreatment they experienced in these systems; because these systems offer insufficient recourses to address the complexity of their problems; or because these systems are the potential source of additional legal and non-legal problems and other harmful consequences. Notably, many Indigenous, Black, racialized, migrant, and/or criminalized participants reported avoiding contact with law enforcement (especially with police) at any cost, even in an emergency or when they were subjected to abuse, because law enforcement is a source of violence in their communities.
Section 4 – Discussion and Conclusion: This report concludes with a synthesis of findings and reflections on their significance.
- First, this study highlights that trans, Two-Spirit, and non-binary people’s legal problems are highly complex. These problems span multiple legal and administrative systems, institutions, and jurisdictions, and they often occur over periods of several years or even decades. The effects of these problems are especially complicated, long-lasting, and intractable when individuals face multiple legal problems and/or must navigate more than one legal or administrative system.
- Second, trans, Two-Spirit, and non-binary people's socio-legal statuses have serious impacts on their ability to engage with and navigate legal and administrative systems. Contact with legal and administrative systems often makes their problems more — not less — complex. These systems are not only inaccessible, insufficient, and burdensome, but also harmful, dehumanizing, and potentially lethal.
- Third, our results reveal that certain laws and policies (independent of enforcement) generate numerous serious legal problems for trans, Two-Spirit, and non-binary people, which negatively affect many aspects of their lives. As such, many of their complex legal problems’ root causes (i.e., sources) cannot be resolved without comprehensive law and policy reforms.
- Finally, our interviews demonstrate the essential, central role that trans, Two-Spirit, and non-binary people’s communities play in helping them respond to their serious and complex legal problems, and in producing related knowledge and expertise, including legal expertise. Further, these persons — and their communities — must be recognized as experts and given leadership and decision-making roles at every step of the design, elaboration, and implementation of any strategy developed in response to their problems.
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