Section 1 – Sample Characteristics

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Demographic Data

Research participants were selected to cover a range of demographic profiles for variables such as gender identity, age, province and setting of residence, ethno-racial identity, and citizenship status. For gender identity, participants were asked to self-identify using their own preferred terminology. To simplify, we categorized 14 participants as being within the transfeminine spectrum,5 meaning they were assigned male at birth but reported identifying as women, trans women, etc., and four within the transmasculine spectrum, meaning they were assigned female at birth but reported identifying as men, trans men, etc. Furthermore, three participants self-identified as non-binary, three as both transfeminine and non-binary, and two as transmasculine and non-binary. The remaining participant self-identified as a “Two-Spirit female” and stated explicitly that she did not have trans or non-binary lived experience.6 In contrast, the four additional participants who self-identified as Two-Spirit also self-identified with gender identity terms falling within transmasculine, transfeminine, and/or non-binary categories. In the rest of this report (as in the tables above), we list Two-Spirit self-identification separately to reflect how it is not reducible to Western terms for gender identity or sexual orientation.

Participants’ ages ranged between 18 and 74 years old, with an average of 37 years old (1 participant did not report their age). A greater proportion of participants were recruited in Central Canada, with 10 living in Quebec and eight in Ontario at the time of interviews. Five participants were recruited in the Prairies (three in Alberta, two in Manitoba), two in the Pacific region/British Columbia, and two in Atlantic Canada (one in Nova Scotia, one in Newfoundland and Labrador). Because of time constraints and the limited resources available to conduct this study, we were unable to recruit from other provinces or Northern territories. The majority of participants were living in an urban setting or major city (n=23), one in a suburban area, two in a small city (including a city in a more remote northern region), and one in a rural area.

Participants were also asked to self-report their ethno-racial identity. Our sample included four Indigenous persons and one person of mixed Indigenous, Southeast Asian, and white background. These five individuals all self-identified as Two-Spirit. Our sample also included five Black persons, which comprised people who self-identified with the following terms: “African,” “Afro-Latina,” “born in Haiti,” and “of Haitian and Canadian origins” (2). Additionally, our study included 10 racialized persons, who self-identified with the following terms: “Arab and West Asian,” “born in Morocco,” “Caribbean and South Asian,” “from El Salvador,” “Latin American/Hispanic,” “Latina” (2), “Mexican” (2), and “Southeast Asian.”7 Our sample also included six white persons and one individual who preferred not to disclose their ethno-racial identity. Finally, nine participants — two of whom were Black, seven racialized — reported being born outside of Canada. Of these participants, three were Canadian citizens at the time of interviews, three were permanent residents, two had refugee status, and one was an asylum seeker who had applied for refugee status.

Some elements of our research design help explain the high proportion of Black, Indigenous, and racialized persons in our sample. On one hand, we recruited through a specific organization, ASTT(e)Q, that works extensively with trans women who are current or past sex workers and who experience criminalization and poverty, many of whom are also Black or racialized migrants. On the other hand, in the other recruitment stream, Black, Indigenous, and racialized individuals filled out the online screener in a greater proportion to begin with.

Socio-Legal Status

In this report, we employ the term socio-legal status to explain how trans, Two-Spirit, and non-binary people’s legal problems are caused by interconnected and mutually constitutive social and legal dynamics. Our results reveal that certain participants were particularly susceptible to facing more severe legal problems and experiencing more harmful contact with the legal system and other state institutions. Due to the qualitative nature of our study, we cannot draw conclusive comparisons between or across demographic groups, but the term socio-legal status helps explain how people’s legal problems are determined by their differential position relative to social norms and to laws, legal (and other state) systems, and legal actors. In other words, socio-legal status addresses how individuals’ interwoven social and legal statuses influence or produce their legal problems and shape their access to resources, opportunities, entitlements, and protections, including the protection of their rights.

At one level, social status refers to one’s social standing relative to others in society. This position is determined by economic status and social, cultural, and legal norms, which create hierarchies based on characteristics such as gender, race, health status, (dis)ability, class, age, etc. As our evidence will show, people’s legal burdens are often shaped by the interactions between and compounding effects of numerous social locations. For example, Indigenous, Black, and racialized participants regularly expressed how various aspects of their identitieswere inextricable from their experiences of legal problems:

I think it’s multilayered, because as a person who is non-white, there’s also race in play, right? So, sometimes I have to endure racism, but also homophobia, or transphobia, and, you know, it’s a multilayered issue, right? It’s not just one.

(Kaiden, non-binary and transmasculine, racialized)8

Hence, the concept of social status highlights that many of the legal problems experienced by trans, Two-Spirit, and non-binary people are not the result of transphobia, or of transphobia alone. Moreover, the evidence we present in this report will underscore that participants’ social status was not the only source of their legal problems.

Indeed, at another level, the term socio-legal status addresses how individuals’ recent experiences of legal problems are influenced by, and likewise influence, their legal status. Legal status refers to people’s status vis-à-vis specific laws, policies, and their enforcement. For example, a person’s legal status can refer to their immigration status, civil status, Indian status, or to having a criminal record. A person’s legal status also includes whether certain laws and policies situate them in conflict with legal and administrative systems and actors and at risk of punitive or otherwise negative consequences for going about their daily activities (e.g., earning income, using certain substances, being present in public space or in certain areas of town, exchanging consensual and remunerated sex, engaging in one’s spiritual and religious traditions, customs, and ceremonies, exercising one’s treaty rights). People’s legal statuses may be determined by numerous and intersecting laws, policies, and enforcement practices (e.g., youth protection, immigration, criminal, municipal, family, health, housing). These laws and policies can have serious consequences on people’s lives, rights, and opportunities, even if those people manage to avoid interaction with law enforcement. As such, the term legal status recognizes 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 people’s cumulative legal problems.

Individuals’ and communities’ social statuses are constructed and informed by their legal statuses — and vice versa. Additionally, some aspects of a person’s status can be simultaneously social and legal. For example, their age determines their status relative to others in their immediate and broader communities (e.g., position and power within family structures), but it is also a legal status that determines their legal control over various aspects of their life (e.g., guardianship, age of majority). Similarly, a person’s health status can have both social (e.g., stigma, exclusion from certain spaces due to inaccessibility) and legal components (e.g., inadmissibility on health grounds in immigration law, criminalization of HIV non-disclosure). We conceptualize these mutually constituted and interconnected relationships as the socio-legal status of participants.

The concept of socio-legal status stresses that people’s current or recent legal problems cannot be fully understood if considered in isolation from other legal problems, including previous and/or ongoing problems. This is because many serious legal problems have lasting social and legal consequences that contribute to people’s exposure to additional problems in the present and future. Alexa’s narrative provides an illustrative example.

Alexa’s most recent legal problems included barriers to obtaining permanent residency and difficulties finding housing, obtaining legal employment, and accessing education. But the occurrence and substance of these problems cannot be disentangled from her previous/ongoing problems, nor from these previous/ongoing problems’ connections to and impacts on her socio-legal status. Alexa shared that, many years before, she pleaded guilty to criminal charges despite having accrued them for acting in self-defense when she was assaulted. She did not fight these charges on the advice of her criminal lawyer, a strategy aimed at getting her released as soon as possible from the men’s facility where she was held in pretrial detention. Alexa described being detained among men — under correctional policies that determined trans people’s placement based on their genitalia rather than their gender identity — as a frightening and “traumatizing” experience.

Alexa’s criminal lawyer did not adequately inform her about the long-term legal and socio-economic effects that her guilty plea would have, nor did she anticipate them. Among other consequences, Immigration, Refugees and Citizenship Canada (IRCC) denied Alexa’s permanent residency application because of her criminal record. In turn, both her criminal record and her status as a refugee without permanent residency subsequently caused significant barriers to housing, legal employment, and education. These barriers were made worse by her inability to change the name and gender marker on her identity documents because of her immigration status. Furthermore, the risk of deportation lingered as a significant source of fear for Alexa because she had previously been ordered by immigration to abide by strict probation-like conditions to maintain her status in Canada. Alexa’s fear of deportation was amplified because one of her close friends, a trans woman from the same country of origin, had been murdered after being deported from Canada.

While Alexa’s guilty plea may have prevented continued imprisonment at the time, it nonetheless created conditions of life she called “prison-like”:

[translation]

My status is a refugee status. It’s been several years, it’s been like 15 years already, and then I didn’t manage to get residency, because of... a case where I had to declare myself guilty in front of the court. […] In fact, I was not really guilty. Because of that, it closed all doors for me. Not able to study, not able to work, not able to do anything, as if locked in a bubble that cannot be broken. […] As they say, it’s almost like a prison… you can’t do anything…

(Alexa, transfeminine, racialized)

In sum, Alexa’s already precarious socio-legal status made the consequences of criminalization more severe and long-lasting, and these consequences likewise worsened her socio-legal status.

In Section 2, we present the various types of serious legal problems that participants reported having experienced in the previous three years. As will become clear in this and subsequent sections, while we explicitly asked participants to describe their recent problems, interviews often revealed that these problems were exacerbated by, or directly stemmed from, the enduring effects of earlier legal problems.

What our report reveals is that we cannot gain a robust understanding of the legal burden that trans, Two-Spirit, and non-binary people face in Canada if we only or narrowly examine recent legal problems or their immediate impacts. Instead, connections must be traced between people’s previous and current legal problems; the intersecting and reinforcing impacts of different types of legal problems; legal problems’ impacts on people’s socio-legal statuses; and people’s statuses and the political, economic, legal, and social forces that shape them. Throughout this report, when possible, we make these connections explicit through our selection of quotes and in our synthesis and interpretation of interview data.

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