Introduction

Trans is often employed in existing literature and popular usage as an umbrella term inclusive of a diverse range of persons whose gender identity (sense of self) differs from the sex they were assigned at birth. In this report, we employ trans as a standalone term to reflect this broader meaning.

In recent years, Canada has seen significant law reforms aimed at enhancing the legal protection and recognition of trans people. For example, in June 2017, the Canadian Human Rights Act’s list of protected grounds was amended to add “gender identity” and “gender expression,” and all provincial and territorial human rights acts/codes now extend similar anti-discrimination protections to trans individuals. Following human rights cases and advocacy efforts in various jurisdictions, other law reforms have also increased certain trans people’s ability to change their identity documents, such as their passport, driver’s license, and health card. A growing number of Canadian institutions, ranging from the education sector (Kirkup et al. 2020; Laidlaw 2020) to correctional institutions (Hébert 2020), have also modified their policies and practices in recognition of their new human rights obligations towards trans people.

In this report, legal problems are all conflicts, barriers, or negative interactions that a person experiences...

  • with a legal or administrative system, or
  • as a direct or indirect result of laws, policies, rules, and regulations, or
  • due to the practices of or from contact with state institutions, officers, and agents,

and which may arise in public, private, or interpersonal contexts.

Still, trans advocates and scholars report that human rights protections, legal recognition, and accommodations are out of reach and inadequate for many. Few trans people can obtain proper legal representation and few legal professionals are equipped to use available legal tools when working with trans clients (Singer 2020a; 2019; Spade 2011). Structural barriers along the axes of race, Indigeneity, gender, class, immigration status, criminalization,1 disability, etc., shape trans people’s access to new legal protections, and more broadly determine and impact their relationship to laws and legal systems and their overall life outcomes (Singer 2020b; Katri 2017; Ashley 2018; Irving 2013; Tourki et al. 2018; Butler Burke 2016; Spade 2013). Nonetheless, to date, the extent and effects of the legal problems experienced by trans people have not received adequate research attention in Canada, especially outside of Ontario (J. James et al. 2018).

In this report, we employ the phrase “trans, Two-Spirit, and non-binary people” to acknowledge that while these groups are often included under the trans umbrella, their realities can differ in significant ways.

When used as such, trans refers specifically to trans women and other transfeminine persons, as well as to trans men and other transmasculine persons.

Non-binary refers to persons whose gender identity does not (exclusively) correspond to binary gender identities (i.e., woman/girl or man/boy).

Two-Spirit is claimed by some Indigenous people “who embody diverse sexualities, gender identities, roles, and/or expressions” (Pruden and Salway 2020, 1). Still, Two-Spirit is not analogous or reducible to “Western terms of gender and sexual orientation” and is often used to resist and challenge colonial gender and sexuality systems. This study was inclusive of Two-Spirit persons who wished to participate, whether they felt a sense of connection to trans, non-binary, and other gender minority identity terms or not.

This report, commissioned by the Department of Justice Canada, addresses this gap in knowledge 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). Research consisted of semi-structured interviews with trans, Two-Spirit, and non-binary people recruited across Canada. These interviews asked participants to describe the serious legal problems they experienced in the previous three years; the factors contributing to and connections between their problems; if and how they attempted to resolve their problems; the types of support they received or needed to overcome or cope with their problems; the barriers impeding their access to justice; the impacts of their problems on various aspects of their lives; as well as the social, legal, and structural transformations needed to improve their everyday lives.

The following pages present a brief overview of existing literature on trans people’s legal problems and describe this study’s methodology. Sections 1 to 4 then provide a thematic summary of our findings. In Section 1, we present the demographic characteristics of our sample and explain how participants’ “socio-legal statuses” influenced and were influenced by their legal problems. Section 2 offers a detailed presentation of the types and severity of legal problems that participants reported having faced, and it highlights the connections between various problems as well as their immediate and long-term impacts. In Section 3, we describe participants’ contact with — and avoidance of — different legal and administrative systems, which for many were the source of (rather than solution to) their legal problems. This section also highlights the forms of mistreatment and abuse participants experienced throughout legal and administrative systems. Finally, Section 4 summarizes our main findings, which show that “access to justice” initiatives would do little to alleviate participants’ legal problems. Rather, many of the legal problems reported in this study will persist without comprehensive law and policy reform. We affirm that participants and their communities are experts on the complex legal problems they face and must therefore be given leadership and decision-making power in developing and implementing strategies to address them effectively.

Footnotes

1 Criminalization refers to the creation, application, and impacts of criminal law, policies, and practices that make certain activities illegal, and which disproportionately target specific communities. The term is also used to include other types of punitive laws, policies, and practices that target marginalized and criminalized communities (e.g., municipal regulations, immigration regulations).