Section 2 – Legal Problems

In this section, we provide an in-depth overview of the types, severity, and immediate impacts of the legal problems that participants described having faced in the previous three years, while also attending to the longer-term consequences of previous or ongoing problems. We categorize legal problems thematically under five domains:

Legal Statuses

As explained in Section 1, legal status refers to one’s status vis-à-vis numerous and intersecting laws, policies, regulations, and the institutions and actors who enforce them. A person may be afforded certain legal statuses that offer protections, services, opportunities, and advantages. Likewise, legal statuses may produce and maintain legal problems by placing a person in direct conflict with legal systems, and by limiting or denying access to protections, services, opportunities, and advantages. Importantly, 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.

Criminalization

Numerous people in our study described how criminalization impacted their lives. By criminalization, we refer to the following situations: participants whose activities and/or labour were criminalized, even if they did not directly engage with law enforcement or legal systems; participants who spoke about being profiled and targeted by police; participants who interacted with criminal law enforcement and prosecution as a “suspect” or “offender” (e.g., arrest, police custody, pre-trial detention, criminal trials) and who described how these events disturbed their lives; and participants who were found guilty of criminal offences (at the outcome of trial or from entering a guilty plea) and had to cope with the detrimental consequences of having a criminal record. Like other legal problems, criminalization had long-lasting effects for certain participants and often led to future problems, including additional conflicts with the law, law enforcement, and legal systems. We note that many of the people who identified criminalization as one of their main legal problems explained that their initial contact with criminal law enforcement was related to the criminalization of drugs and/or sex work.

The consequences of the criminalization participants experienced were numerous (e.g., on housing, employment, familial relationships, immigration status) and cumulative, as early criminalization’s effects on participants’ socio-legal statuses often resulted in more criminalization and harsher penalties later on — in particular if their status was precarious to begin with. One participant, who worked as a sex worker and repeatedly faced criminal charges for selling her services in public, described this cumulative effect:

[translation]

Each time, what would happen was, since it was always the same charge, well each time […] it would give the judge the opportunity to hit harder. Then, it ended up… leading to incarceration, but it really took a long time before it came to that.

(Darya, transfeminine, Black)

Another participant described a similar path of escalating contact with criminal law enforcement, which also culminated with time in prison and criminal inadmissibility resulting in loss of permanent resident status — what she called a “vicious circle” (Miri, transfeminine, racialized).

Participants mentioned that the problems caused by criminalization emerged not only from being charged for a criminal offence or from the detrimental effects of charges and convictions, but also from having to manage the potential harmful consequences of criminalization. In other words, participants described how their everyday lives were negatively impacted by the risks associated with criminalization and their potential devastating effects on their lives. In particular, participants who reported being current or former sex workers spoke about the risks generated by sex work criminalization and about other forms of punitive regulation they face (e.g., receiving fines for loitering when working on the street, being evicted for involvement in sex work). Moreover, sex workers reported that the risks and harms of criminalization jeopardized their safety and exposed them to violence, including from police:

I had clients attack me, charge at me and everything, but I couldn’t call the cops because I would... I was afraid I was gonna get in trouble. So, I would have to suck it up, kick him out, and then have another day. Try another day to have a good day, basically.

(Star, transfeminine, Black)

[translation]

Well, regarding the police... I was degraded, I was… listen… I was insulted, belittled, you know, when you say control, there is a certain way of sometimes controlling a person. […] Listen, I was… ah! Demoralized, demeaned.

(Miri, transfeminine, racialized)

As we will return to later, some trans, Two-Spirit, and non-binary people are subjected to increased surveillance by, and more frequent and harmful contact with, law enforcement than others; this includes those who are Indigenous, Black, racialized, and/or sex workers.

The significant impacts of the criminalization of HIV non-disclosure9 — which can lead to charges of aggravated sexual assault and can result in a lengthy prison sentence, lifetime registry as a sex offender, and, for people without citizenship, deportation for criminal inadmissibility — were also made evident in some interviews. In one example, a participant living with HIV described how she faced criminalization for HIV non-disclosure after she was sexually assaulted. Following the assault, her assailant began to contact her dozens of times a day, threatening to kill her if she contacted police and warning that police would not believe her if she did, on account of her gender identity and immigration status. The participant then contacted the police to request a restraining order, and she disclosed her HIV status to police officers. Instead of attending to her safety, the police shared the participant’s HIV status with the man who assaulted her. He subsequently pressed charges against her for not disclosing her HIV status during the assault. She described the entire ordeal as a waking “nightmare”:

[translation]

I felt like... it was the end for me, I was afraid to go to prison […] that it was all over, I don’t know, it was very hard for me. The nightmare was not over.

(Maya, transfeminine, racialized)

Furthermore, the police did not intervene when the person who assaulted the participant continued to stalk and harass her for months following the assault, even after the charges against her were dropped. Maya did not pursue any legal recourse pertaining to the police’s disclosure of her HIV status to the assailant, in part because of the considerable time and resources required, but more significantly because she believed that further contact with law enforcement might create more legal problems or endanger her safety. As we will discuss in Section 3, many of the criminalized participants in this study avoided contact with legal and administrative systems whenever possible, because of the possibility that it would worsen, rather than resolve, their legal problems.

It is worth noting that every participant in our sample who disclosed being involved with child and youth protection services as minors reported experiencing criminalization. People whose first contact with criminal law enforcement happened when they were minors were explicit about the devastating effects it had on their lives as young adults, as two people who served sentences in youth detention facilities explained:

Had I had support from the age when I started getting in trouble […] in the youth justice system, it would have been better. I got an offer when I was 18, and had I stayed out of jail and out of the court rooms for like, two years, they were gonna expunge my youth record, but that didn’t happen. And so, all my charges transferred to adult, so that really sucked. But had I gotten that support when I was 18…

(Jason, non-binary and transmasculine, undisclosed ethno-racial status)

Even after I got out there was very little services. Like, after being in a facility for four years and being told you can’t, pretty much, do anything, and having a complete routine, to basically just going into your own apartment? There was no transition that could have prepared me for that. There were no services, no halfway house, no nothing.

(Yeti, transmasculine, Indigenous, Two-Spirit)

Like other persons in this study, these two participants described the harmful impacts that probation and/or parole conditions had on their lives.

Across our sample, probation or parole conditions included prohibitions on using substances, being in the company of specific people or communities, driving a motor vehicle, or being in certain neighbourhoods — including, as some participants reported, where they worked, resided, or went to school. Such conditions were described as difficult or impossible to abide by, and participants explained how they generated important barriers to accessing supports, services, employment, and community connection:

Not being able to drive to get to work or anything like that, it’s […] limited my [employment] options because, they don’t look at who you are or who you’re trying to be. They look at your behaviour, basically what you’ve done in the past through the court system and all that.

(Rachel, transfeminine, white)

Participants also described how conditions could or did result in further criminalization and escalating criminal charges. For example, Alexa reported that she was forbidden from entering or circulating in a certain area of town (known in certain provinces as a red zone or a quadrilatère) that included her own home. This court-ordered condition effectively made it illegal for her to leave her home and perpetuated an ongoing cycle of criminal charges:

[translation]

You weren’t allowed to go out… Even if you lived in [the prohibited zone]. You weren’t allowed. It's like terrible, it's like [if] you're in prison at home. […] I remember, one of my friends, he told me “OK I'll pick you up to go for a drink outside [your prohibited zone].” I said, “Okay, come get me.” […] The police saw me get into the car. It was like 11:30. The police saw me, then they were following me. Three blocks later, they arrested me. A week in jail. Just like that… for having gone out.

(Alexa, transfeminine, racialized)

Several other participants likewise described being trapped in a situation where their previous criminal charges and resulting conditions made it impossible to carry out basic activities of daily life without accruing new criminal charges. This cascade effect further marred participants’ life prospects, thwarted their access to employment and housing, and imperiled their immigration status, even in cases when the laws under which they were originally charged were eventually repealed. As we will explore in the next subsection, migrants were among the participants for whom criminalization had the most severe effects, determining both the immediate and the long-term conditions of their lives.

Finally, we note that many participants who were arrested for activities related to drugs or sex work were given court-ordered conditions, such as restrictions on mobility or continual reporting to law enforcement. In several cases, participants who breached their conditions received criminal charges. Notably, even participants who were ultimately declared not guilty of the original charges still had a criminal record because of the secondary charges they received for breaking court-ordered conditions.

Citizenship and Immigration

Our findings make explicit that having (or having previously had) a precarious immigration status has serious and lasting impacts on people’s access to resources, opportunities, entitlements, and protections, including the protection of their rights. Importantly, this is a key area of our data that demonstrates how current legal problems are in many ways inextricable from previous or ongoing problems.

Regardless of their current immigration status, many of the migrants in our sample, and especially those who made claims for refugee or protected status, discussed the lack of support (e.g., to access housing, food, and other essentials) and guidance they received (e.g., about where and how to apply for refugee status, how to obtain income assistance) upon their arrival in Canada:

[translation]

They questioned me, then they searched me […] everywhere, undressed, naked in a shower, unbelievable, [they broke] my shoes to search everywhere then… ah! It was unbelievable […], it was hard. They did that for a whole evening, after that they let me go and they gave me addresses, a note where I could maybe ask for help somewhere. But it was a Saturday. And on Saturday and Sunday everything is closed, there was nothing open. I didn't know where to go, and after that I was stuck in a bus terminal and I didn't know where to go. […] To come here, it was very difficult. […] Those early days were hard for me.

(Anika, transfeminine, racialized)

This participant, like others, shared that the only immediate help she received was from community members or organizations. In Section 4, we will show that for the great majority of participants, the most important resource for facing their legal problems was their communities, broadly defined. Her situation also reveals how the dearth of assistance she received from Canadian border agents was compounded by the trauma she experienced from her interactions with them upon landing. Standard immigration procedures such as strip searches can be especially harmful because they have the potential to “out” migrants as trans, exposing them to the possibility of violence and discrimination.

But with or without supports, migrants expressed that their initial situation in Canada was often made worse by how burdensome and lengthy various aspects of the immigration process were (including applying for various forms of assistance):

When I arrived I made the claim as soon as I got to the airport. I was one of the [approximately 30] people that came with me on the plane. And from those it was only me and two other guys that were accepted right away. […] And... I spent three months in the YMCA waiting to start the process of finding an apartment and getting welfare... and all of that. It took three months even though I submitted everything they asked of me.

(MX, transfeminine, racialized)

[translation]

Then I had all the required documents and I had all the papers I needed to be accepted as a refugee. […] It was very difficult because every time I asked my lawyer, he told me “Oh, the papers are still in [other city]. Oh, maybe the papers are lost.” […] It took me a long time, like three, four years to get an answer that my papers had been found, and then to have them sent to continue the refugee status process here.

(Maya, transfeminine, racialized)

Some participants discussed how their immigration status prevented them from obtaining legal employment and, as we will discuss in a later section, how it also acted as a barrier for some to securing stable or safe housing. As we explore in the next subsection, migrants who took part in our study also had some of the most significant barriers to accessing identity documents that matched their gender identities.

Migrants who arrived in Canada as minors experienced particularly serious and long-lasting problems because of their immigration status. One participant explained that she did not have access to health care for more than a decade because one of her parents, who did not accept her gender identity, refused to provide her with the documents needed to apply for the public health care plan in her province of residence. Another explained that one of her parents kept her from obtaining citizenship for similar reasons:

The reason why I never had the citizenship before, is because my mother [would] kind of hold it against... was kind of holding it against me as in, "If you don't go by my rules, I can always send you back to [country of origin] without a problem."

(Zara, non-binary and transfeminine, Black)

In another example, a migrant was removed from her family and placed in youth care shortly after arriving to Canada. As we mentioned above, every trans, Two-Spirit, and non-binary participant in our sample who disclosed being involved with child and youth protection services as minors experienced criminalization, which had long-lasting or irreversible consequences on their lives. This participant remained in youth care for around 10 years. During that period, the government youth care employees failed to apply for citizenship on her behalf. As with other migrants we interviewed, this participant’s prospects of obtaining citizenship were later further jeopardized as an adult because of the criminalization she experienced as a sex worker. She and other participants in our sample were either denied or stripped of permanent residency or citizenship because of criminal inadmissibility provisions, and some were even threatened with deportation. One of these participants reported having spent more than a decade undocumented after losing her permanent residency because of a drug-related criminal conviction. When she was eventually arrested and charged for sex work-related offences, she was transferred to immigration authorities and held in an immigration detention facility for nearly a year. She only narrowly avoided deportation, and her interview revealed that she continues to live in precarity while waiting to re-establish her immigration status.

Identity Documents

Across this report, our evidence will show that for many trans, Two-Spirit, and non-binary people, having identity documents (ID) that do not correspond to their identities can have serious impacts on their standards of living (e.g., access to employment, housing), their health and well-being (e.g., access to health care and social services), and their dignity and safety (e.g., being exposed to abuse, discrimination, or harassment; negative interactions with state actors such as law enforcement and court actors). For example, one participant reported that because her immigration status prevented her from changing her ID, she faced discrimination and hostility when applying for jobs. This discrimination led her to avoid seeking formal work entirely:

[translation]

When I’d go look for work they would look at my papers, they would look at me, they would say, “No, that’s not you.” […] My appearance and my papers are not the same, so I was embarrassed and that's why I didn’t look for work.

(Maya, transfeminine, racialized)

Some recent law reforms have reduced barriers to changing ID, including in relation to immigration status,10 but other law reforms have increased barriers, including in relation to criminal records.11

Beyond these law reforms, there continue to be numerous additional barriers to obtaining identity-concordant ID that participants in our sample identified. One participant described an example of the kind of bind that many refugees and refugee claimants found themselves in when submitting applications to change their documents:

It was kind of... complicated in a way because they are asking you for documents that [are] impossible for you to get. They wanted a passport, a valid passport, or travel document. I have never taken a travel document from here. And a passport, I cannot go up and renew my passport at the embassy here from [country of origin] because they told me that if you    renew your passport, it’s like... you [can be accused] of thinking of going back.

(MX, transfeminine, racialized)

Under Canada’s Immigration and Refugee Protection Act, refugees without Canadian citizenship (including many of the research participants who left their countries of origin because of anti-trans violence) can have their refugee status revoked for renewing a passport from their country of origin. Even when a refugee is instructed by IRCC that such travel documents are required for immigration-related procedures, renewing a passport can be interpreted as having “reavailed themself of the protection of their country of nationality.”12

Different jurisdictions (provinces, territories, federal agencies) have different onerous, elaborate application requirements and processes that are in themselves barriers for trans, Two-Spirit, and non-binary people. Participants talked about the difficulties linked to obtaining the supporting documents required for applications. Depending on the jurisdiction, these required documents can include authenticated letters from medical or other professionals that “validate” the applicant’s identity, or that confirm the person is on hormones or has had specific gender-affirming surgeries (the very fact of requiring medical interventions is also a barrier for many people). Other formal requirements, such as obtaining documents from one’s country of origin, having to disclose one’s criminal record, obtaining a police record check, and mandatory application fees and other costs, were also described as prohibitive:

When I send my application, they will send it back. Then I get the documents they ask me to send. And […] they will send it back to me, “No, there is this and this and that...” and then, “You need to update the dates, sign again, and put the new pictures.” So, they will keep asking you for things that they don't mention all together. They give you one [document] and then you send it back and they will change it again, “Ah... You need this too.” You see it as a pointless way for them to ask thing by thing when they could put everything in a list. […] But no... they send it back. So, you're spending money in postage, every single time and they're asking you for documents that it will take months for you to get back from [your country of origin].

(MX, transfeminine, racialized)

My charges have gotten in the way of [changing my ID]. Apparently, I have to wait five years for my youth record to be completely sealed, and then I also have to pay money to change my name, which I can’t really afford to do. So, I think maybe they should lower the rate to change people’s names. […] There are gonna be some people who are on low incomes, this is gonna help make their life more livable, you know?

(Yeti, transmasculine, Indigenous, Two-Spirit)

Overall, participants said that it was difficult to get information about the procedures involved in changing their IDs and that such procedures were onerous. Participants who succeeded in changing their IDs explained that they then had to go through several steps to notify multiple public and private agencies and request updates to records and files (e.g., school records, health care and social services files). These processes were also described as time-consuming and resource-intensive.

Still, identity-concordant ID is not sufficient to resolve the problems that trans, Two-Spirit, and non-binary people face in how they are addressed and treated in public and private spaces. For example, Quin elected to change the sex designation on their birth certificate to the gender-neutral “X,” but their identity continued to be disaffirmed by health care personnel and by the health system’s bureaucracy:

I am still, as a disabled person, misgendered every time I go to the hospital, every time I engage with any kind of [medical setting], which is especially not great during a global pandemic because it’s a deterrent to accessing health care, like I have avoided going to hospitals. […] The X marker, as I found out later… it’s just a Band-Aid, a binary gender or sex is still retained on legal documents, […] like the [provincial health care plan], right now, they don’t really have a non-binary option, it’s only male or female.

(Quin, non-binary, racialized)

Two other participants said that they hesitated to get the X designation on their ID, even if it would describe their gender identity more accurately than their current sex designation, because they feared it might expose them to more discrimination in various spheres of their lives (e.g., employment, international travel). Unlike “male” and “female” designations, the X designation immediately identifies the holder of an identity document as trans, Two-spirit, or non-binary, effectively “outing” that person to officials and prospective employers. In sum, legal recognition via identity documents does not always improve their safety and security.13

Child and Youth Protection Services

The participants in this study who were involved with child and youth protection services as minors described foster families and group homes as frequent sites of abuse instead of places of respite from neglect or abuse:

[translation]

I was seeing therapists, I had a social worker, and the thing is, that evening I had bruising. So then, I went to see my therapist and I told her: “Look, this is what's happening to me at home, it’s been going on for so long, and I’d like it to stop now.” […] From then on, I was placed in a foster home. Except the problem is that they also hit us in the foster home.

(Darya, transfeminine, Black)

Another participant made a direct connection between his incarceration and the negative treatment he experienced from his youth worker and in a group home, and more broadly because of the youth care system’s refusal to accept and affirm his gender identity:

Jason: So, then I was put in a group home, and then I stayed in that group home for like four years, no, three years, and then I was in and out of incarceration during that time.

Interviewer: Because you were hitting people?

Jason: Yeah.

Interviewer: Can you talk a bit more about what made you hit people?

Jason: I was just unhappy in life […] ‘cause I had come out when I was like, 12, but my worker told me, it’s just a phase, you’ll get over it.

(Jason, non-binary and transmasculine, undisclosed ethno-racial status)

This participant met further disavowals of his identity and punishment for his reactions to such abuse while incarcerated. He also reported being forcibly hospitalized in a youth mental health facility.

Another participant, who was involved with child and youth protection services from a young age and was eventually made a permanent ward as a teenager, likewise discussed the abuse and discrimination he experienced as a gender non-conforming youth in the foster care system. His first contacts with the criminal legal system happened when he tried to run away from a group home. Significantly, this participant explained that he had been denied access to an Indian status card, despite one of his parents having Indian status, but that he was nonetheless placed in facilities overseen by Indigenous youth services, against his wishes. When asked why he would have preferred to be placed in other facilities, he answered that Indigenous services were not only notoriously underfunded, but were also primarily staffed by white personnel:

I already knew that it was gonna be shit. […] The way that I view Indigenous people, a lot of the time, and it’s gonna suck saying this but it’s kind of true, we’re first in line when no one wants to be first, and we’re last in line when no one wants to be last.

(Yeti, transmasculine, Indigenous, Two-Spirit)

Yeti further said that his experience in the Indigenous services facilities confirmed his view:

“There’s a lot of stuff I didn’t get — there’s a lot of services — even the claims for drug services is crap. I’m telling you.”

In contrast, this participant described how meaningful it was when he eventually connected with a youth worker who was Two-Spirit like him after he started accessing services and support at an Indigenous-led community organization.

In the next subsection, we show how this participant’s view that Canadian institutions are sources of systemic disadvantage and harm for Indigenous people was shared by another person in our sample, Riel, who confronted legal problems and contact with the court system because of his conjugal and familial situation.

Conjugal and Familial Relationships

Nearly all people in this study described conflicts with — and in some cases violence from — family members and/or intimate partners at some point in their lives in connection with their gender identity, and some specifically faced legal problems tied to their conjugal or parental status. Legal encounters and proceedings tied to these and other legal problems were often particularly negative for trans, Two-Spirit, and non-binary people in our sample.

We will return to participants’ involvement in legal procedures in Section 3, but for now, we wish to emphasize how some individuals specifically reported that legal procedures made trying to separate from an abusive partner far worse.

The first thing that you do is you’re required by law, or you’re strongly encouraged to go through mediation prior to going to court, which was difficult not because of my queer identity but because I’d been in an abusive relationship. […] There’s lots of situations where’s there’s domestic violence and it’s not a black eye, it’s a coercion, they call it coercive control, and if you put these two people in the same room and expect them to go through mediation, you’re not getting the accurate depiction of the relationship.

(Seth, transmasculine, white)

Seth's ex-partner also instructed his lawyer to leverage Seth’s gender identity to his disadvantage during child custody negotiations. Luckily, the lawyer refused to do so. Nonetheless, this participant’s example reveals that encountering a respectful and educated legal actor was not sufficient to resolve his legal problems, because many of his problems emerged from his contact with the legal system and his involvement in legal procedures. Indeed, Seth explained how both the divorce and custody procedures dragged on for years following his separation, and that his ex-partner continued to harass and attempt to control him during that time, including by employing financial manipulation and legal mechanisms such as ex parte parenting orders. In Section 3, we will show that being in contact with legal and administrative systems or being involved in legal procedures was a common source of problems for many other participants in this study.

Another participant, who was also attempting to separate from an abusive partner, explained how his precarious financial situation put him at a disadvantage in attempting to engage in divorce and child custody procedures.14 Like the participant cited above, he explained how the lengthy and burdensome nature of these legal procedures resulted in his remaining legally bound to his ex-partner years after their separation, which further exposed him to abuse:

I’m a single parent currently, and I’ve had a lot of difficulties with anything to do with the legal aspects of separating as a married couple, and then separating as parents, and currently my divorce status is still — or my marital status still isn’t divorced even though we separated [three years ago]. And my legal status is still just… my parent-custody status is still legally joint even though I’m a primary caretaker. Yeah, I have no child support or anything in that regard.

(Riel, transmasculine, Indigenous, Two-Spirit)

Riel’s situation was further exacerbated when a judge refused to grant him a protection order he requested at the recommendation of the divorce mediator when his ex-partner began exhibiting particularly threatening behavior towards him. For this participant, this judge’s decision, made after a hearing that lasted only a few minutes, was characteristic of how the legal system responds to Indigenous people’s problems, and especially those perceived as Indigenous women:

It felt very typical of, I guess my experience of any sort of interaction about the protection of Indigenous people, particularly Indigenous mothers, when they’re in danger. [My request] was just like, barely even looked at, [the judge] threw it in the garbage and that was it, I was given no direction, nothing.

(Riel, transmasculine, Indigenous, Two-Spirit)

Significantly, Riel explained how he had made the choice not to present himself as a man or affirm his gender identity during court proceedings because, in his words,

“it would have made it all the more complicated and painful.”

Later, we will show that Riel’s fear and mistrust of the legal system and its agents, which stemmed from harmful interactions with law enforcement he and his community experienced, was shared by other Indigenous, Black, and racialized people in this study, particularly if they were also disadvantaged by their legal status(es). Next, we explore the legal problems that participants in our sample experienced relative to employment, income support, housing, and education, which we will show was often likewise exacerbated, if not caused by, aspects of their socio-legal statuses.

Economic Security and Standard of Living

Labour and Employment

According to our data, access to employment and to safe and equitable working conditions is one of the most significant sources of difficulty for many trans, Two-Spirit, and non-binary people. Legal problems reported by participants related to labour and employment included problems experienced in the context of legal labour sectors, as well as within criminalized labour sectors (e.g., selling sexual services, selling drugs).

First, participants reported facing barriers to obtaining or retaining legal employment. Participants spoke of being denied work or being fired because of various aspects of their socio-legal statuses, including but not limited to their gender identities:

I moved to [name of city] thinking I was gonna be able to get a job here, because I thought, you know, it’s a bigger city, people are more open-minded. […] I put my résumé everywhere, thinking I was gonna get a job easily. I would get interviews and because of, you know... They saw my name, a male name and everything. Once I would go to the interviews, I would never get a job. One woman actually told me that she would hire me but she’s just afraid of what the clients would think.

(Star, transfeminine, Black)

I was working at [store] at the time. And I personally feel like the way I was fired, like the way they terminated my contract, was really racially based.

(Zara, non-binary and transfeminine, Black)

Many participants also said that it would have been difficult for them to determine or document the precise reasons why they did not obtain work or why they lost employment, which would have been required if had they sought legal recourse. Additionally, some participants’ labour- and employment-related legal problems stemmed from their inability to work legally in any sector due to their immigration statuses or from employers’ refusal to hire them because of their criminal records.

Second, interviews revealed that instances or patterns of discrimination and harassment in the workplace were commonplace:

Transphobia in one of the workplaces is the reason why I quit, and I never really approached dealing with that through any kind of judicial system or anything like that because it just wasn’t… it was a lot of effort and a lot of time for something that, […] with the current systems we have, I couldn’t see that resulting in anything. So, I basically resigned.

(Jen, non-binary and transfeminine, white)

I was just very, very anxious at work all the time — like especially after my [Black] co-worker was fired without cause, I was just very on my toes. Like what if I say something, if I talk about something that makes me uncomfortable, am I gonna get fired, am I gonna get reprimanded? Just feeling lots of anger and hopelessness as well, I’m like this fresh-out-of-school Black trans person and this white cis lady who is […] employing me has all this power over me and I can’t say anything.

(Ekow, non-binary, Black)

Here again, while certain participants identified specific instances of transphobic, racist, or otherwise prejudiced treatment, others highlighted how their negative experiences were connected to multiple forms of bias. As we will discuss further in Section 3, the few participants who pursued them said that the legal recourses at their disposal to respond to or resolve such legal problems (e.g., internal complaint and accountability mechanisms, human rights complaints) did not yield adequate results, and in some cases even resulted in further problems.

Third, some participants reported enduring unsafe and inequitable labour conditions without any recourse available to remedy the situation, and with limited alternatives both within the sex industry and other labour sectors, because of their precarious financial situation and/or lack of other employment opportunities. One participant said that he was regularly misgendered by other employees at his workplace, where he was in regular contact with the public:

If my colleagues say, “Oh yeah, you can see my colleague — she’s over there.” […] So then, people become confused, like, “Who? You mean that guy over there?” So, sometimes that happened, I would just pretend they’re not referring to me. Just say, “What? I don’t know what you’re talking about.” To protect myself. Because sometimes, if the person realizes that I’m a transgender person… After work, I may get beat up, or at lunch break, if I go out to get something I might get beat up in the parking lot. Or stabbed, right? What if later I need to go use the washroom and I run into that person?

(Kaiden, non-binary and transmasculine, racialized)

This participant explained that he had previously been violently assaulted in a public space and that his workplace situation heightened his fear for his safety. It is worth noting here that numerous other participants who had experienced assault also reported hypervigilance in public spaces, and some said they limited their time in social or public spaces or avoided them entirely because of fear or trauma. This could also limit their capacity to access work or other services, including health care.

Fourth, it is important to note that participants also identified labour-related legal problems that resulted from a lack of legal protections in the workplace and/or that stemmed from the law itself. This included participants whose only labour options, because of their criminal record and/or immigration status, involved precarious, unsafe, or abusive employment conditions. It also included a high number of participants whose safety was jeopardized because their work-related activities were criminalized.

Most significantly, 12 participants in our sample shared that sex work was their main source of income or a way to supplement other insufficient sources of income, including government assistance. Sex work broadly refers to the exchange of sexual services for something of value, such as money, goods, access, or services. For many participants, the criminalization of sex work obstructed their access to stable income, safer working conditions, trans community supports, and/or gender affirmation. Several participants explicitly identified the current criminal legislative framework related to sex work as a source of unsafe work conditions or of fear (e.g., fear of contact with law enforcement, repercussions on other aspects of their lives such as their immigration status, housing, and income taxes).

Those with an already precarious socio-legal status were likely to be pushed into even more precarious situations by sex work-specific criminal law15 or enforcement,16 or by regulations that have punitive consequences for sex workers, even if they are not directly tied to criminal law or are not sex work-specific law and policy. In one example, a participant described the connections between the impacts of criminalization and other forms of regulations. Namely, she explained how she faced criminalization for engaging in sex work; how having a criminal record for charges unrelated to sex work later limited her options for legal work because it led to the suspension of her specialized vehicle licence; and how she was subjected to additional, repressive sex work-specific housing policies in her subsidized rental apartment. As the following quote demonstrates, these problems were not only interconnected, but also had compounding effects on her safety and well-being:

Interviewer: So when you were doing sex work you didn’t have any legal problems connected with that?

Raelee: No actually, I was pretty lucky. I was being found sleeping in my vehicle quite a bit though when I was doing sex work. The cops would roll up on me and ask me what I was doing, I’d just tell them I was sleeping. It was either that or you know… I don’t know what else it would be.

Interviewer: You mean, if you hadn’t told them you were sleeping you were worried you would have more serious legal problems?

Raelee: Oh yeah, it was very stressful for me because I shouldn’t have to… they’ve taken my way for me to earn a living [by suspending my specialized vehicle license]. […] It’s actually why I tried to just… I didn’t really walk the street, I mostly did sex work through either the rest stops or through [a website].

Interviewer: And so, the fact that you’re scared of having trouble with the police, does that affect your ability to earn a living?

Raelee: Well yeah, in several different ways. I can’t drive, and I don’t really want people coming to my house. For starters, I signed a contract saying I wouldn’t do sex work out of [provincial subsidized housing]. My pension […] covers my rent [but] yeah, there’s nothing left for survival.

(Raelee, transfeminine, white)

Other sex worker participants also noted that the criminalization of their work had harmful impacts on their physical and mental well-being, safety, and economic security. Additional consequences of sex work criminalization discussed by participants included: being threatened with eviction from their apartments or fearing eviction; displacement from collective working and living spaces; being forced to leave temporary accommodations such as a hotel room, or fearing being thrown out; being banned from online platforms that allow for communication and pre-screening with clients and subsequent inability to establish alternate safety measures to verify clients; being banned from online platforms that provide in-call rental locations; inability to call police for assistance due to fear of criminalization; and having to travel to other cities to work in order to avoid local police harassment. One participant described how the increased police surveillance she experienced because she was known as a sex worker and because of racial profiling was one of the main reasons she had to travel for work:

I do work in other cities because [current city], it’s dangerous for me. I can’t go to the street. The police check me all the time. I don’t know [if it’s] because [they] see I’m Latina. […] I don't know... But it’s very focused on me.

(Chula, transfeminine, racialized)

Finally, some participants made clear how negative work experiences that took place years or even decades ago continued to have ramifications on their current work prospects and standard of living. For example, Sailor J described herself as a victim of the Canadian military’s “purge” of known or suspected sexual and gender minorities in the late 1960s (which continued into the 1990s).17 Prior to being forced to leave the military, she also experienced harassment and assaults from superiors and other military personnel. This, in combination with being a victim of conversion therapy18 and having faced numerous additional barriers to living as a woman and accessing adequate medical care throughout her life (among other lifelong difficulties) caused severe mental health problems that led her to lose her second career:

I lost my job — my proper job, in the late 1980s, because my gender dysphoria was so overwhelming, I was not able to work. My doctor recognized I was suicidal in my behavior, and he removed me from my workplace with a pension. I still grieve the loss today.

(Sailor J, transfeminine, white)

This participant further explained how, since then, her income mainly consisted of long-term disability, which often proved insufficient to allow her to progress with medical transition or afford proper mental health supports. Although this participant’s legal problems primarily occurred several decades prior to her interview, her life opportunities were increasingly narrowed as a consequence of the repeated violation of her rights. Many other participants in this study also explained how legal problems and their interconnected and cumulative effects had serious and long-lasting negative impacts on their mental (and physical) health.

Income Support

Sailor J was not alone in reporting that having to rely on income support — because of problems with employment, disability, inability to work, or other forms of adversity — did not allow her to meet her needs. Given the employment problems just outlined, it should come as no surprise that numerous participants in this study relied on or had recently had to rely on income support and other forms of government assistance, including welfare, disability benefits, and employment insurance.19

These sources of income were overwhelmingly described as inadequate to cover everyday expenses, while some participants faced barriers to accessing them in the first place:

[translation]

I’m not very well. I have trouble going out, running errands, I have trouble going to pick up my medication. […] I’m sick, and social assistance didn’t accept a note the doctor gave me stating that I was sick. Social assistance wouldn’t accept this note, to increase my benefits a bit. Because with the money they give me, well, I can’t make ends meet. There’s nothing left.

(Anika, transfeminine, racialized)

Participants also noted the delays involved in applying for and receiving income support:

Ekow: It just took a long time because […] they spent a lot of time doing research as to why I needed the EI [employment insurance], and kind of put me through this fact-finding process that usually it’s for when there’s like a discrepancy. […]

Interviewer: So, you had to go, as you say, on a fact-finding mission and justifying and then eventually they accepted your application?

Ekow: Yeah, it just took a while and like maybe took an extra two or three weeks before I actually got any money in my account so that was a stressful financial time.

(Ekow, non-binary, Black)

Such delays can have serious consequences for those with a precarious socio-legal status, including for their capacity to remain housed, as we explore next.

Housing

Many participants in this study reported issues with securing or maintaining stable housing. In some cases, participants understood that one of the main factors preventing them from accessing housing was their gender identity, due to their appearance or inability to obtain identity documents aligned with their identities. More broadly, interviews revealed that persons with a precarious socio-legal status — such as those living in poverty, without Canadian citizenship, without support from family or friends, with a criminal record, or working in a criminalized labour sector — were particularly likely to find themselves chronically underhoused, periodically homeless, or living in unsafe or unsanitary dwellings.

For example, a trans woman explained how, for the past five years, she had lived in an apartment with recurring issues — such as mould and broken or missing appliances — that her landlord had consistently refused to resolve. The landlord had even threatened her with legal action when she started documenting these problems:

I started thinking, “Okay, if I don’t document this, he’s gonna be an asshole.” So, from that time on, I kept taking pictures, recording videos, and whenever he came in, I would put the recording on, because he would threaten me. The very first time, he said, “If you think that you can do something in an illegal manner, you’re wrong. It’s gonna be very nasty for you, and you’re not gonna be happy with it. You can end up in jail. I can tell you that.”

(MX, transfeminine, racialized)

Such threats were particularly unnerving for this participant, even if her landlord never followed through with them, given that she lacked Canadian citizenship. Her enduring housing problems also led to material losses (e.g., personal belongings due to mould, perishable food due to a broken fridge), health problems (e.g., asthma, injuries), and loss of income. As a sex worker, she previously received clients at home to minimize her visibility to the police. Since the onset of problems with her landlord, however, she had stopped working, as she knew her landlord could legally evict her if he had evidence that she was engaging in any criminalized labour or activities from home.

Some other problems described by participants with a history of unstable housing included: theft or being “kicked out” by roommates; having to live with persons they felt unsafe around, or in areas of town they felt unsafe in; having to remain in an abusive relationship because of a lack of alternative housing options; harassment or assault by neighbours; being lied to or taken advantage of by landlords; and facing threats of eviction or being evicted. Factors of socio-legal disadvantage tended to produce or worsen these experiences. Moreover, existing housing support services were described by some as inadequate and at times as a site of further discrimination or abuse, as one participant explained:

As a trans woman it’s hard to find housing, so me showing up to viewings and making appointments and all of that, that’s really difficult, I found, as a trans person. So, I reached out to [a non-governmental organization] for support, like, oh, could they help a trans person out? And nothing really happened, like they did an intake and I didn’t hear back from them. […] Two or three months later, when I ended up getting evicted, that’s when they said, “Well, we can have a bed for you here at the drop-in shelter.” […] But then, there wasn’t that much support from the staff — the staff were also transphobic. The staff would not respond appropriately or at all when other clients were saying or doing transphobic things. […] And then, my mental health — the anxiety and depression — just kept getting worse, up until the point where I snapped at the staff, I swore at the staff, and then they kicked me out.

(Kiva, non-binary and transfeminine, racialized)

Participants faced problems in other spheres of their lives (such as education, as we turn to next), which could further impact their housing situation. Indeed, Kiva herself explained how her experience of homelessness resulted from what she called the “interpersonal” and “institutional discrimination” she experienced especially but not exclusively in the education system, where she had “expected differently.” She summarized:

I experienced some pretty solid, some pretty hard discrimination and it has affected my life, my career, my education plans or educational goals, ever since I started living more openly as trans. To the point of […] contributing to my homelessness and losing my housing and literally having to stay in a tent outside.

(Kiva, non-binary and transfeminine, racialized)

Education

Like Kiva, other participants reported numerous problems in the education system, including high school and university administration refusing to affirm students’ identities, as well as disrespect, harassment, and violence from other students or school personnel with little or no recourse available. Carlos, the youngest participant in our sample, explained the combination of unaddressed transphobic and racist problems they encountered in high school, including verbal and psychological mistreatment by school authorities:

Students would tell me to off myself, they would repeatedly misgender or deadname me [i.e., use their former name] — this would extend to staff or faculty. Sometimes they isolated me, and they would ask how to handle trans issues with family members. Students would say, “Get over genocide or colonization.” There was an event where two students told me basically every queer- and transphobic thing in the book, and one of them being very anti-Black specifically, and [the principal] was just like, “I can't do anything.” […] The students didn’t get suspended.

(Carlos, non-binary, racialized)

Other participants linked the discrimination they experienced from school authorities and peers alike to the role of educational institutions in their surveillance and criminalization, particularly through collaboration with law enforcement. One example was a Black participant who was falsely accused of selling drugs on school property by school authorities, which resulted in contact with police and threats of criminalization:

Though I didn't have weed on me, they did call the cops. And I did have something written in my file until I was eighteen saying that I had, like, a warning for weed, and if I was caught with weed, well, I would actually be charged or something.

(Julie, transfeminine, Black)

As we return to later, this was not the only time this participant had the police called on her without cause.

Importantly, like Carlos above, other participants who faced problems in educational settings (e.g., bullying, harassment, misgendering, delays with or barriers to changing one’s name in school records) all reported that existing internal mechanisms were inadequate to address or prevent these problems. As we will see in Section 3, institutional accountability mechanisms in settings beyond the education system were likewise seen as insufficient to resolve participants’ problems and were sometimes themselves sources of harm. For now, we explore how another public institution, namely, the health care system, is also a source of legal problems for trans, Two-Spirit, and non-binary people in Canada.

Health Care and Services

It is beyond the scope of this report to explore in depth the numerous difficulties that trans, Two-Spirit, and non-binary people experience in the health care system or when trying to access health services, but we wish to emphasize some key issues because of their legal implications. One of these issues is that several participants in this study reported experiences of mistreatment, neglect, and abuse by health personnel:

I don’t trust policemen and nurses, I just don’t, you know. ‘Cause... Policemen and nurses are just the mean girls and the mean guys, the bullies from high school who just got their job because, you know, it looked good on them. The reason I’m saying that, it’s because I almost died of an accidental overdose, about four years ago. And... the nurses that treated me all went to high school with me, and they treated me very badly. I died, I wake up and they tell me I have to hurry up and leave ‘cause they need the beds. […] Yeah, it was a terrible experience. I woke up without shoes, without a wallet, without anything.

(Star, transfeminine, Black)

This example also illustrates how negative interactions with medical personnel can strengthen participants’ mistrust of state agents at large. Another participant, Carlos, reported that the transphobic and racist treatment they faced in the health system made them reluctant to seek out mental health supports, such as accommodations in school for neurodivergence:

[The psychiatrist], according to the testimony of two of my friends who’ve had him, he told my trans Filipino friend that he thought that he was trans because of his psychosis, and he told the other one that his family were, and I quote, “boat people.” The counsellor that I had, […] she repeatedly asked me how I knew I was this identity, or that identity. […] My concerns are that, because I’m trans, or because I was assigned female at birth, or because of my race, that psychologists won’t take me seriously.

(Carlos, non-binary, racialized)

Additionally, participants explained that experiences of mistreatment, neglect, and abuse prevented or discouraged them from accessing essential forms of care.

Various interviews revealed how participants’ socio-legal statuses impeded them from accessing health care. Carlos mentioned that, as a minor, another barrier to accessing adequate mental health supports was the legal requirements regarding parental consent, which made it impossible for them to discuss their gender identity with mental health professionals:

The protocol was that because I’m a youth my parents have to sit in [the sessions], so naturally I was trying to [withhold] as much as I could at the time, because I wasn’t out yet.

(Carlos, non-binary, racialized)

In a preceding section, we described the case of a migrant who did not have access to health care for more than a decade because of conflicts with her parents when she was a minor. This participant did not have access to copies of her legal records and did not know how to obtain or renew them when she moved between provinces. Other migrants in this study reported significant barriers to health care due to their immigration status. Participants also described how their lack of access to identity-concordant ID complicated their access to care or exposed them to mistreatment and abuse. One explained that he carried two pieces of ID (one with his current name and one with his former name) to lower the chances that he could be denied care or be publicly embarrassed in the health system, especially when seeking types of care that medical personnel would not associate with the sex designation on his most recent ID.

Finally, participants also spoke of the inadequate public health coverage available to people who seek medical transition, and of the limited or non-existent administrative and legal remedies available to overcome the barriers they encounter.20 Sailor J explained that, due to the limited coverage for gender-affirming surgical procedures in her province of residence, and because of the multiyear waiting list for the reputable surgical clinic approved by her province’s public insurance plan, she was a victim of medical malpractice. Being in her 60s at the time she sought access to surgery, Sailor J feared that she could end up being denied treatment because of her age if she waited for her turn on that clinic’s waiting list. Following the advice of her family doctor, who lacked expertise in trans health care, she finally elected to seek the care of another surgeon and to make a request for coverage under the provincial plan. Sailor J chose him not only because she would be able to access care more quickly, but also because his services were among the cheapest available internationally and, as such, she would be able to access some of the procedures that she required which were not covered by the province. She explained what happened after the province formally approved coverage for her genital surgery but not for the other procedures she required:

I was not fully, properly informed. I didn’t know what my rights were, and my doctor didn’t… I picked the cheapest […] because there had been such a bottleneck built up [in the province]. […] But my issue was age, and my skin being thin. I asked [the surgeon], “Is this an issue?” and he said, “Nope, nope — come on, I want your money.” The “I want your money” was not spoken, but it was there. I recognize that. […] He botched my genital surgery.

(Sailor J, transfeminine, white)

Sailor J described the debilitating pain she continued to endure because of the improper care she received and how she was unable to find adequate post-surgical care in her province of residence.

Although problems in the health care system were a common theme across interviews, this participant was alone in seeking redress through formal legal mechanisms. Following the events described above, Sailor J filed two human rights complaints to denounce the provincial plan’s lack of coverage for some of the procedures she had needed, but, after months of waiting, both complaints were rejected. She was determined to try again with a new legal representative, but also had to contend with mounting legal fees, which added to the significant debt she accumulated from medical expenses and previous legal proceedings.

Violence and Other Forms of Abuse

We have already demonstrated that trans, Two-Spirit, and non-binary people face wide-ranging forms of adversity, barriers, and harm in many interpersonal and institutional contexts. In fact, every participant in this study described being subjected to violence and abuse. Some reported isolated (but no less severe) incidents of abuse, while others revealed that violence and oppression were common, if not constant, across various spheres of their lives.

To summarize and simplify, the forms of violence reported by trans, Two-Spirit, and non-binary people in this study included verbal and psychological harassment and abuse. This includes isolated, occasional, or sustained behaviors or actions that intend to or have the effect of humiliating, demeaning, frightening, subordinating, coercing, or otherwise harming a person (or group of individuals). Participants also reported being subjected to physical violence, which includes isolated, occasional, or sustained incidents such as attacks by strangers, domestic violence, abuse by family members, sexual assault, and violent interactions with persons in positions of authority:

They jumped me from behind, they ran up and jumped me from behind and just started punching me in the head. It was one man that came up first, and then I took him on, and the other one jumped in, and both of them started attacking me and punching me.

(Kiva, non-binary and transfeminine, racialized)

[translation]

He asked me if I wanted to be his… as [they say], his girlfriend. Then I agreed, for two, three months, he’d come to see me on weekends, until he asked if he [could] live with me to help me pay the rent. And since I was in school and at the same time, I was taking driving lessons, for me it was a good idea… to have company and on top of that someone who is going to provide half the rent and money to pay for my classes. […] [When] he moved in with me, he started physically assaulting me. He wanted to have anal sex and I didn’t want to. […] He grabbed me by the throat, put a knife to my throat, took me to the bed, forced me to have sex.

(Maya, transfeminine, racialized)

Here again, our findings make evident that experiences of violence and other forms of abuse are often worsened by a person’s precarious socio-legal status. One participant, for example, explained how her disabilities made her more vulnerable to domestic abuse:

I have NVLD, so non-verbal learning disability, and Asperger’s, or, I guess, autism spectrum disorder. […] I can struggle in social situations like figuring out people’s motives, or, I guess, if they’re friends or not friends, like picking up fake friendliness, I don’t really understand that. […] I do think that definitely played a role in a lot of it, and I feel like my ex may have specifically picked me out due to some of my awkwardness and naivety. […] I was someone who […] would have been an easier person to victimize.

(Cavatappi, Indigenous, Two-Spirit Female)

Furthermore, few participants in our sample sought to report the violence they experienced to law enforcement and/or to pursue legal remedies for it. As we will discuss more fully in Section 3, one of the key factors contributing to participants’ reluctance to report abuse or seek legal redress for it was if they understood and/or had previously experienced the legal system itself to be a source of abuse. One participant described how, after she was physically assaulted, the policemen who intervened in the situation physically hurt her more than her assailant had:

I wasn’t really hurt. […] It was in the police car that they injured me, because the police officers, well, those who were driving the car to take me to the police station... they would accelerate quickly, and then brake suddenly, so that I’d hit my nose on... into the window. I was handcuffed, there, and yeah that’s, it was terrible because supposedly the police are there to protect us, not to hurt us.

(Alexa, transfeminine, racialized)

As such, another form of violence that our study highlights is state violence, which 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. To conclude Section 2, we discuss how detention facilities and law enforcement were some of the most significant institutional sources of state violence and abuse for people in our sample.

Detention Facilities and Law Enforcement

Incarceration and Other Forms of Detention

We already mentioned that some of the participants in this study were detained as a result of criminalization (e.g., pre-trial detention, sentence of incarceration, immigration detention). Our findings indicate that detention was another site of serious problems for participants in this study. Being incarcerated is in itself a form of extreme hardship and deprivation with harmful repercussions on people’s lives and communities — such as on their familial relationships, immediate and long-term safety, health, and general well-being. Still, our findings suggest that trans, Two-Spirit, and non-binary people face additional issues within detention and carceral centers and upon their release from detention/incarceration.

Detention facilities are usually sex-segregated, and although there have been policy changes in some Canadian jurisdictions relating to where trans people are placed (and according to which criteria),21 the majority of participants in our sample who experienced detention were placed in identity-discordant facilities. Some of the transfeminine participants who were detained in men’s facilities reported being harassed, threatened, or assaulted by other prisoners and correctional staff when housed in men’s facilities and witnessing other transfeminine people’s mistreatment:

[translation]

When I went to prison it was… it was hard. Now that was really hard. […] It was hard because there were people who would… who were trying to intimidate me or trying to hurt me, like sometimes, [I’d get] death threats.

(Anika, transfeminine, racialized)

The cops and the other guys... it’s too much stress. […] I’m a strong girl, but when I see other girls cry inside the jail, I'm like, “No, girl, you need to be strong.” It's very powerful moments, cause it’s my sisters and... I’m a migrant, you know, I’m stronger, whatever. I’m a fighter. But this is [a bad] part of the justice system in Canada. […] This exists. I remember many humiliations for people, you know.

(Chula, transfeminine, racialized)

Still, another participant was explicit that the violence she faced while incarcerated in a men’s facility came not from other prisoners, but from correctional staff and because of institutional policies and practices. Describing why she spent close to half of her two-year sentence in administrative segregation, she said:

There’s a barrier there — you know, us trans women are unable to seek placement in institutions of our preferred genders, and because we are trans women — because I’m a trans woman in a men’s institution — there’s this belief that I am at risk of danger or abuse. The abuse I’ve experienced while in the provincial jail actually came from the hands of the staff working there. I have experienced a lot of the correctional officers’ lack of understanding or even sensitivity. […] One of the guards openly admitted that there was a bet out against me on whether or not I would be able to survive in [the general] population. […] He saw me [after] I was released from segregation, and [was] like “Wooh, you’re still here, […] I didn’t think you’d make it.”

(Kiwi, transfeminine, Indigenous and racialized, Two-Spirit)

Kiwi further expressed how practices like strip searches were especially degrading in men’s institutions:

“Hard, yes, in the sense that they’re laughing at you and — and making you feel…what would the word be? Um… inhuman, or like a freak. It’s… [long pause] awful.”

Another person said that demeaning practices were also common when he was incarcerated in an identity-discordant youth detention facility. He explained how the treatment he received, and his reaction to it, led him to face institutional charges:

Jason: I needed feminine products — sorry, but I still need them.

Interviewer: Do you mind being specific about what kind of products you needed?

Jason: Yeah, I wanted a pad.

Interviewer: And they wouldn’t give you one?

Jason: No. […] No, and this guard was on for two days in a row, so it was like, “Hey, can I get a pad,” and she’d be like, “Yeah, I’ll put your request in,” and I’d be like, “You just gotta go get the pad, like, it’s not the end of the world.” […] I knew right away when she put in a request, I knew it was gonna be a no. […] So when we were out, when we were in the range, I basically just went up to her and I just punched her in the face. […] I was just fed up. […] I went in segregation for, I think it was like, eight days.

(Jason, non-binary and transmasculine, undisclosed ethno-racial status)

Participants reported that transfers to identity-concordant facilities did not eliminate the reality and risk of violence in detention. Jason explained how even though he eventually succeeded in being transferred to an identity-concordant youth facility after months of advocating for himself (and receiving the support of organizations to that effect), the situation was not easier in male facilities:

“I also got other agencies involved to advocate for me. So, when that happened, I got a transfer. I regret the transfer. Like, I had to be put in protect[ive custody] the whole time, 33.5 days.”

Another participant reported experiencing sexual and physical violence after successfully being transferred to an identity-concordant facility while in the youth system.

Yet another participant succeeded in transferring from a men’s to a women’s facility, but this was years after first requesting a transfer and was the outcome of having submitted a human rights complaint against the correctional system. She explained that despite the implementation of new policies that allegedly entitled trans people to placement in the facilities they prefer, correctional authorities had the power to deny requests without justification:

You ask the warden. It takes a while, but I just got denied. They don’t give you a reason why or nothing, it’s literally their discretion, so every time I put in a request to be transferred it’s been a no and, legally, they don’t have to say why.

(Rachel, transfeminine, white)

Still, upon her eventual transfer to a women’s facility, she continued to confront denials or important delays in accessing identity-affirming clothing and accessories, as well as women’s correctional programing. As such, even reformed correctional policies that claim that the identity and human rights of trans, Two-Spirit, and non-binary persons will be affirmed do not ensure these rights will be upheld, nor do they prevent institutional mistreatment or violence from taking place.

Law Enforcement/Policing

It cannot be understated that nearly all the trans, Two-Spirit, and non-binary people in this study who reported any form of contact with criminal law enforcement (especially with police) described their interactions as harmful or otherwise negative. In fact, our results indicate that positive contact with police was exceptionally rare. Moreover, Indigenous, Black, and racialized participants — including participants who were migrants and/or involved in criminalized activities (e.g., possessing or selling drugs, selling sex) — reported the most frequent, recurring, and violent encounters with criminal law enforcement.

There were three main types of circumstances through which participants in this study encountered criminal law enforcement. This included, first, participants who were victims of abuse (e.g., assault, theft), regardless of whether they wished for police to be involved or would have preferred to avoid any police involvement. In some of these situations described by participants, police did not believe participants’ versions of events, would refuse to assist them, or would turn against them, sometimes going as far as arresting or charging them:

I had asked [my ex-partner] to leave. He was in violation of the parenting order, so I said “I need you to leave,” I asked him to leave a second and third time, and then I said, “If you don’t leave, I’m going to have to phone the police,” because that’s what you’re supposed to do when they violate the parenting order. And then he stood outside and talked with [the police]: “Oh, you know, it’s just silly, Seth is just being weird, I’m not here in violation.” And they believed him.

(Seth, transmasculine, white)

[translation]

Maya: The investigator […] asked me hard questions, that made me cry. And he’d say, “It’s not true what you're saying. [The other person] said it wasn't like that.”

Interviewer: Did you feel like the investigator […] was working for him, did you feel intimidated by this person?

Maya: Yes, intimidated because [the investigator] was asking me questions. Sometimes he would bang on the table like this, he would say “No, no, no, it wasn’t like that! He said it was…” He would ask me the same question again to… to confuse me.

(Maya, transfeminine, racialized)

In a similar vein, participants’ interactions with police also resulted from being witness to an event (e.g., an accident, an assault) that led to police presence or involvement. Some participants reported being treated poorly by police in such circumstances.

Second, some participants also came into contact with police because they were suspected of having engaged in criminalized activities, or because another person (e.g., neighbours, clients, partners) reported them to police. In some of these situations, police were disrespectful, if not downright aggressive:

[translation]

I was dressed as a woman and […] they were calling me by my boy name. And then, yeah, the same nonsense they usually do. […] At one point, one of them decided I’d been rude to him. And after that, instead of handing me my ID card, he threw it on the ground and then… Yeah, like… nonsense like that.

(Darya, transfeminine, Black)

I moved to my stepfather’s place at some point. It was in a more... I wouldn’t say a white neighbourhood, but just like a bit more white than where I was living before. […] One time, I forgot my key and I went to the back of the house. And yeah, I did look queer, like... very queer at the time, so I guess someone called the police on me, even though that was my house. Just because I looked a certain way. And yeah, [the police] came and used violence. […] They pulled guns on me. They handcuffed me and um... Yeah, they kept me like, really stressed out like, out in the snow and stuff.

(Julie, transfeminine, Black)

Numerous participants reported being exposed to surveillance and profiling, and therefore to more frequent or more negative police contact because they were suspected of engaging in criminalized activities and/or because they were known to police. Another participant spoke about being ticketed by the police for jaywalking while passing through a commercial area where many trans women sex workers lived and worked:

Especially that one time... I was walking on [name of] street and I went between two cars to tie my shoes. I guess that was the end of the month and they needed to arrest someone. Cops gave me a ticket. Even after I kept telling them that, you know, I was a woman, “You have to call me by this […] name.” They kept calling me a guy, a male, “Oh, you're drunk!” I didn't even drink that night. So, the fact that somebody would treat me that way when I was doing nothing but walking... I can't imagine if I had […] been caught doing work or, you know, a client.

(Star, transfeminine, Black)

This participant explained that this type of police surveillance and profiling was routine for her and her friends. Not only did being visible in public carry a risk of police harassment, but working with other trans women carried additional risk of legal problems, including arrest and incarceration.

Finally, contact with law enforcement also occurred in cases where participants experienced mental health crises and family members or friends called the police to intervene. An Indigenous participant described how the police ’s intervention did not address her mental health situation and instead worsened it:

The police arrived. I told them my name was Jane instead of John [as per my ID], and they were like nope, you’re John, this is who you are. […] They didn’t care that I was trans, they just proceeded to what they were doing and arrested me, put me under arrest. They had no reason to check my house, [but] they went in and “Oh, we‘ve got to close your windows,” they said, “just in case we have to take you in,” and all that. But they didn’t even take me in. They went in my house, they went all over the house.

(Jane, transfeminine, Indigenous, Two-Spirit)

Jane suspected that although she herself did not have a criminal record prior to this interaction with police, the officers may have wanted to search her house because some of her family members were known to police. This participant also described that police officers left her for over an hour alone in the police car with handcuffs tightly on while they searched her house, barely checking in on her during that time and showing no concern for her well-being, even though she was clearly distressed. They even refused to loosen her handcuffs when she told them they were too tight and causing her pain.

In contrast, another participant described how his own situation unfolded in relative calm, despite being in possession of a firearm when police arrived at his home:

I was surrounded by a SWAT team. I don’t know how many there were, it was at least a half a dozen, who came out of the bushes from all around me. […] But this is where the compassion starts, well, it started on the phone even, she was very nice, very kind to me, there was no judgments going on, but the guys that took me down, I told them — they kept yelling at me to get down on my knees and I said, “I can't, my left leg doesn’t bend.” […] And they’re like, “Just stand with your arms out,” they guided me the whole time, and I’ll remember that — there was nothing out of control in their voices. […] They handcuffed me and they put me in the vehicle, but this is where they took the next step. […] They knew I was transgender [but] they also knew I was a veteran. […] They put [an officer with me] who was also a veteran and he stayed with me for everything. He went to the hospital with me. He stood outside the room when the doctor talked to me and then he was back in. […] He stayed with me until I was settled in the psychiatric ward.

(Journey, transmasculine, white)

The significant contrast between the police’s response in these two cases underscores the differential treatment that people will receive from law enforcement depending on their socio-legal status. This is something Journey himself reflected on. Although he had “no complaints” about how police interacted with him in this tense situation, he suspected the outcome could have been different for someone else:

Now, I think about it, and […] I think I was safe but, what if I had been somebody else? What if I had been Native? […] What if I had been a Black guy, would I be here to praise [police], or to complain about them? I don’t know, I just know that I was treated well. But I am still white, even though I’m trans, I’m still white.

(Journey, transmasculine, white)

Black and Indigenous participants situated their own experiences of harm and abuse by law enforcement within the historical and ongoing targeted policing of, and state violence against, their families and their communities. Recalling his terror when, as a child, police were called to his home, an Indigenous participant articulated the connection between historical and ongoing state violence as follows:

I just remember being so terrified when the police were there, because I really didn’t want my dad to be hurt, and how scared I was that that was going to happen. It’s not even just from one experience, it’s just like the interactions pile up. […] If that’s how [police] act in the worst of conditions, and especially in conditions where they think no one is looking, or listening, or caring, then you just kind of know… that doesn’t suddenly stop. […] The history just goes back really, really far too, it’s not like a new phenomenon. If you really want to go into like, the historical origins of the first interactions of Indigenous people and police, like the North-West Mounted Police and RCMP here in Canada, it was things like… there were bounties for Indigenous people.

(Riel, transmasculine, Indigenous, Two-Spirit)

Likewise, two Black participants linked their more recent experiences of police abuse and violence to their childhood, when they first learned about and witnessed racial profiling and police violence in their neighbourhoods. Zara described an encounter she and her friends had with the police in a public park during the COVID-19 pandemic. She explained how anti-Black racism and specifically police violence towards Black people perceived as masculine inform how she interacts with law enforcement:

I was the only black person other than the ones, other than my friends that were arrested, I was the only black person within that group that was present at that moment... So, I made sure I kept six feet [apart], not only for the fine [related to social-distancing measures during the COVID-19 state of emergency], but also for my own safety. […] That night I was getting chilly. So, my friends kind of passed me their stuff. So, I was wearing a hoodie, I had pants, and I knew I had cornrows. […] I knew that if I was to step […] one step in [the police’s] direction with this hoody and these pants and stuff like that, they would see [me as a threat][…] I even separated myself from the group. […] I knew that if we were all to get arrested… like the way they treated some of my black friends that were [eventually] arrested. Compared to another white person that was arrested, it was way different. […] This is something just, me growing up in [predominantly Black neighbourhood], I've seen it, and it is something that I know, that... my parents taught me from an early age.

(Zara, non-binary and transfeminine, Black)

Another Black participant made similar links between her experiences of racial profiling and police violence as an adult and what she had witnessed in her community as a child:

It’s very, very much rooted in, like, what I've seen in other people [and] myself, just the story about […] getting the cops called on me and everything. That’s something that was very traumatizing. But also, as a kid, […] I’ve seen, you know, kids in my neighbourhood, like eight, nine years old, get pushed on the [police] car and handcuffed.

(Julie, transfeminine, Black)

These accounts demonstrate the inherent connections between, on the one hand, colonization and anti-Black racism, and, on the other hand, the legal problems that Indigenous and Black trans, Two-Spirit, and non-binary individuals experience today. Our evidence also highlights the connections between the historical and ongoing role of criminal law and law enforcement in criminalizing, regulating, and subjugating Indigenous and Black communities.

Participants with a precarious immigration status and/or who have experienced criminalization, most of them Black, Indigenous, or racialized, further spoke of the lasting and harmful effects of policing and law enforcement in their lives and communities (e.g., trans communities, sex worker communities). As we will discuss in Section 3, the historical and contemporary relationships between criminalized communities and law enforcement play a significant role in shaping and determining the ways in which trans, Two-Spirit, and non-binary people interact with or protect themselves from law enforcement and, more broadly, legal systems.

Footnotes

9 In Canada, the law that criminalizes people living with HIV was established in R v Cuerrier, [1998] 2 SCR 371, which declared it a legal obligation for people living with HIV to disclose their HIV status before any activity that poses “significant risk of serious bodily harm.” In R v Mabior, 2012 SCC 47, the Supreme Court determined that “significant risk” applies whenever there is a “realistic possibility of transmission of HIV,” which they defined as any situation that does not meet two conditions: (1) a condom is used, and (2) the person living with HIV can prove that their viral load is lower than 1,500 copies/mL. Effectively, this law exposes all people living with HIV to the risk of criminal prosecution or other harmful consequences for going about their daily activities. This constant risk of criminalization compels people living with HIV to devise strategies to avoid prosecution, which negatively impacts and predetermines their options and decisions, whether they are subjected to prosecution or not. For more information, see The Criminalization of HIV Non-Disclosure in Canada: Current Status and the Need for Change, HIV Legal Network (2019).

10 This decision of the Quebec Superior Court eliminated multiple barriers, including a citizenship requirement for changing legal name and sex designation. The decision was the outcome of years of advocacy led, in part, by trans migrants and allies. See Centre for Gender Advocacy c Attorney General of Quebec, 2021 QCCS 191.

11 In 2020, Saskatchewan amended The Change of Name Act to allow for the refusal to register a change of name for adults convicted of Criminal Code offences that designate an individual as a sex offender. See The Change of Name Regulations, 1996, RRS c C-6.1, Reg number, s 5.1(2).

12 Immigration and Refugee Protection Act, SC 2001, c 27, s 108(1)(a).

13 See Namaste and Tourki (2020) for a discussion of the financial repercussions that changing one’s identity documents can have for migrants.

14 For more on the legal problems (e.g., related to child custody, appropriate recognition of one’s parental role) facing trans, Two-Spirit, and non-binary people in Canada, see Singer (2020b) and Pyne (2012).

15 Criminal Code, RSC 1985, c C-46, ss 213(1)-(1.1), 286.1-4.

16 See Durisin, van der Meulen, and Bruckert’s edited book (2018) for more on the impacts of sex work legislation and regulation in Canada.

17 See Kinsman and Gentile (2010) for more on the history of the Canadian military (and civil service) purge.

18 See Ashley (2020) for more on conversion therapy.

19 For more on trans, Two-Spirit, and non-binary people’s experiences of employment discrimination and their access to income supports (including disability benefits), see Singer (2020a).

20 When it comes to the eligibility of some of their medical expenses (e.g., for breast augmentation) for tax deductions, trans people are held to a higher standard than required under Canada’s tax statute (see Singer 2013).

21 For more on these correctional reforms, see Hébert (2020).