Literature Review

To date, the only Canadian research to explore the range and frequency of legal problems that trans people experience was a mixed-methods study called TRANSforming Justice (J. James et al. 2018), which was conducted in Ontario. Adapted from the Canadian Forum on Civil Justice’s national legal needs assessment study, this project’s survey results revealed that trans Ontarians (n=232) reported experiencing the following categories of legal problems in far greater proportion than the general adult Canadian population: discrimination, medical treatment, employment, housing, issues with neighbours or property damage, personal injury, police action, disability benefits, relationship breakdown, threat of legal action, social assistance, criminal charges, family matters specific to children, and immigration and refugee issues. Moreover, 71% of trans survey respondents experienced at least one legal problem in the preceding three years (versus 48% of the general population), with 18% reporting five or more problems.

Studies on the health and well-being of trans people more generally have also generated data on legal problems. The 2010 Trans PULSE project (based in Ontario) found that 98% of survey participants (n=433) experienced at least one incident of transphobia in recent years (Longman Marcellin et al. 2013). The 2019 follow-up national Trans PULSE Canada survey further showed high prevalence (over the preceding five years) of verbal harassment (68%), physical intimidation or threats (37%), physical violence (16%), sexual harassment (42%), and sexual assault (26%) among trans participants (n=2,873) (The Trans PULSE Canada Team 2020). The national survey data also highlighted high levels of mistrust of police and the legal system from participants who were migrants (Navarro et al. 2021), sex workers (Arps et al. 2021), or racialized (among whom one in four participants self-identified as Indigenous) (Chih et al. 2020).

In the United States, two large-scale surveys have provided relevant data on the legal problems and legal needs of trans people. The first, a national survey that included 6,456 trans participants, found a high incidence of discrimination among trans people (especially racialized trans people) compared to the general American public, across domains such as employment, housing, health care, police interactions, and jail or prison (Grant et al. 2011). The second, a follow-up national survey that involved 27,715 participants, again found important disparities between the mistreatment and discrimination reported by trans respondents (especially racialized trans people) and that reported by the general US population (S. E. James et al. 2016).

Beyond such surveys, quantitative and qualitative studies from Canada, the United States, and other national contexts have investigated trans people’s experiences of specific types of legal problems. For example, some studies have examined barriers to employment, workplace discrimination, and the abuse that trans people face in both legal and criminalized labour sectors (Irving and Hoo 2020; Chu, Clamen, and Santini 2019; Devor and Strudwick 2020; D’Ippoliti and Botti 2017). Other researchers have shown that trans people confront many difficulties in finding and maintaining stable or temporary housing (Lyons et al. 2016; Abramovich 2017; Pyne 2011; Yarbrough 2021). Evidence also reveals that trans people face barriers and negative treatment in the health care system and social services (Giblon and Bauer 2017; Hébert, Enriquez, and Chamberland 2015; Lena 2019; Hébert, Chamberland, and Enriquez 2012; Bauer et al. 2009; MacKinnon et al. 2020; Sansfaçon et al. 2018).

Another body of research has explored the impacts of specific laws, policies, and regulations on trans people’s lives. This includes how barriers to obtaining identity documents that reflect trans people's gender identity can have negative effects on their socioeconomic stability, access to health care (Hill et al. 2018), perceptions of social belonging (Couch et al. 2008), and suicidal ideation (Bauer et al. 2015). Other studies have demonstrated that immigration law (Lee 2019; Tourki et al. 2018; Jacob 2020), criminal law (Graham 2014; Bailey-Kloch, Shdaimah, and Osteen 2015; Krüsi et al. 2018; McClelland 2019), and the interactions between them (Butler Burke 2016; 2018) harm and further marginalize already marginalized trans communities. Family law and courts have also been shown to disadvantage trans individuals in their conjugal and familial relationships (Singer 2020a; Pyne 2012).

Another important area of research examines how trans people interact with legal and administrative systems and the various agents and actors across these systems. Scholars have revealed that trans people report negative experiences in courts or when engaged with various legal processes (Johnson 2013; Buist and Stone 2014; Sharpe 2002). Criminal laws, policies, and enforcement practices have been demonstrated to be particularly harmful for certain trans people (e.g., racialized and Indigenous trans people, sex workers) and gender non-conforming individuals (Namaste and Tourki 2020; Namaste 2000; E. R. James 2014, Hamilton 2014). This has also been observed in correctional institutions (Hébert 2020; Jenness and Fenstermaker 2014; Sumner and Sexton 2015), community corrections (Kerrison 2018), parole (Greene and Dalke 2020), and reentry services (Greene 2019).

Finally, researchers have found that trans people are exposed to various forms of discrimination and violence in interpersonal and institutional contexts (e.g., Factor and Rothblum 2007; Jauk 2013; Kidd and Witten 2010; Jamel 2018; Stotzer 2009; 2008; Moran and Sharpe 2004). Yet, they are likely to avoid reporting instances of abuse and often face further abuse when they do (Moran and Sharpe 2001; Langenderfer-Magruder et al. 2016; Walters et al. 2020). Indeed, police and other law enforcement agencies have been shown to be significant sources of discrimination, violence, and other forms of abuse for trans communities (Lyons et al. 2017; Angeles and Roberton 2020; Miles-Johnson 2015; Nuttbrock 2018; Serpe and Nadal 2017).