Section 3 – Legal and Administrative Systems: Sources of Legal Problems and Barriers

Points of Contact with Legal and Administrative Systems

In Section 2 of this report, we demonstrated that trans, Two-Spirit, and non-binary people experience varied and interconnected serious legal problems. Our evidence reveals numerous procedures and contexts through which the trans, Two-Spirit, and non-binary people in our study came into contact with legal and administrative systems in Canada, including:

In what follows, we discuss some of the common themes and experiences that emerged when participants described their contact with and avoidance of various legal and administrative systems and actors. While a small number of participants in our sample explicitly stated that they had engaged in specific legal or administrative procedures with the intent of resolving their problems, our findings indicate that the majority did not initiate contact with these systems and procedures as a pathway to recourse or protection. Rather, participants in this study primarily came into contact with these systems because the systems themselves created legal problems that they were forced to mitigate. This aligns with evidence we have presented in preceding sections of this report, which already made clear that the legal problems that trans, Two-Spirit, and non-binary people experience are overwhelmingly caused by laws, law enforcement, and contact with legal and administrative systems.

Moreover, this section presents the numerous barriers and forms of mistreatment that trans, Two-Spirit, and non-binary people face across legal and administrative systems, including but not limited to situations when they initiate engagement with these systems as a means to resolve their problems. Many participants said they avoided contact or communication with legal and administrative systems because of the barriers and forms of mistreatment they had experienced in these systems (including when reporting violence to law enforcement), because these systems were potential sources of additional legal and non-legal problems and harmful consequences, or because these systems offered insufficient recourses to address the complexity of their problems.

Laws, Policies, and Contact with Legal and Administrative Systems as Sources of Legal Problems

Our findings reveal that for most participants, legal and administrative systems were not solutions to their problems, but rather the source of their legal problems. Participants reported that the problematic and harmful aspects of their experiences of contact with legal and administrative systems were not solely attributable to the discriminatory attitudes or lack of education of various actors in these systems, nor to what has been termed “institutional erasure.”22 Many laws, policies, and procedures in themselves constituted the legal problems reported by participants, because they determined their legal statuses and produced or maintained their legal problems by placing them in direct conflict with the law, law enforcement, and legal systems, or otherwise creating conditions of precarity, exclusion, or marginalization.

In some cases, the mere existence of certain laws and policies created legal problems for the trans, Two-Spirit, and non-binary people in this study, even when participants did not directly make contact with legal and administrative systems or actors. For example, many participants who did not have Canadian citizenship described how immigration law and policy created barriers to accessing resources and legal protections. Their precarious immigration status was the cause of their legal problems (e.g., inability to access legal employment and income, risk of deportation due to inadmissibility), as well as what prevented them from accessing appropriate recourse to resolve or respond to their problems.

As one participant explained, although she had been granted protected status in Canada 10 years prior, she remained inadmissible for permanent residency. Consequently, she faced serious barriers to accessing health care, income support, housing, and identity documents, in addition to obtaining adequate support to navigate multiple administrative procedures.

[translation]

I didn’t get any kind of like… like help. None… to start with, I didn’t get any identity documents. I didn’t know how or where, nobody wanted to help me, nobody understood my situation. Nobody understood… knew how to help me. Nobody. And I didn’t know where else to go. And I didn’t know where else to go, [so] I gave up, I stayed like that, just not knowing where else to go…

(Anika, transfeminine, racialized)

As another example, many participants who earned income through sex work described the presence of police in their lives and work spaces as the source of legal problems that produced enduring consequences. As we have shown in preceding sections of this report, law and policy related to the criminalization of sex work were the cause of numerous criminal and regulatory offences and convictions, and a source of racial and social profiling experienced by many participants. Participants who were criminalized also reported how certain laws and policies forced them to avoid contact with or conceal information from one legal or administrative institution in order to engage with another institution without punitive consequences. One participant described how she avoided calling the police when she was having problems with her landlord and postponed going to the housing tribunal to address the conditions of her apartment:

I have restricted myself from calling the police because at the beginning I was just on the mentality that [my landlord] can... tell them that I was a working girl and then the problems will be for me, not for him. […] I was afraid of him… ‘Cause I thought that maybe they will believe him more than me if he brought it up. Like [if] he brought up the situation that I was working or something. […] That’s why it went too long for me [to take my landlord to the housing tribunal]. […] I was afraid that he will say something and I will get in trouble.

(MX, transfeminine, racialized)

Our evidence therefore indicates that being in contact with legal and administrative systems often is a major legal problem in and of itself, with substantial impacts for trans, Two-Spirit, and non-binary people. One participant explained how people who experienced sexual violence, such as himself, are at a disadvantage from the start if they engage in a court process, not only because of the negative attitudes of legal actors towards victims/survivors but also because such attitudes are reflected in legal procedures:

Particularly for [province of residence], so many of these old backwards attitudes are reflected in policy, really go to how deeply it can affect a person’s life and harm an individual. I just think that knowing [how] that’s so intrinsic in that process, it’s a whole other reason, a whole other layer that makes this so difficult. Literally every step of the way. [Y]ou as the victim are being questioned, and you as the victim are being forced to make everyone else believe what happened. […] There is no real support for victims in that sense. It stretches out literally in every layer of interaction with that system, […] even the fact that I have to interact with that system or having to deal with that system, if that makes sense, already puts me at a disadvantage.

(Riel, transmasculine, Indigenous, Two-Spirit)

This ties in with one of the central reasons participants cited for not pursuing specific legal and administrative procedures or for avoiding contact with state institutions and agents more broadly: namely, that they perceived that those procedures and/or contact could potentially create new problems for them, including legal problems.

Indeed, participants who were not able to respond to or resolve their legal problems through legal or administrative systems — because law, law enforcement, and legal systems were the very source of their problems — reported actively avoiding or trying to avoid contact and communication with legal and administrative systems and actors. Some participants avoided contact to prevent potential harmful legal consequences (e.g., to avoid being detained or to avoid negative impacts on their immigration statuses). Examples included individuals who avoided court appearances, tribunals, or other legal and administrative institutions, or who did not contact police after being assaulted in the context of sex work, in order to mitigate the risks associated with criminalization.

Participants who turned to law enforcement after experiencing abuse (e.g., reporting to police, providing testimony to support charges) often reported their interactions with law enforcement as negative. Most participants who were subjected to violence avoided reporting to police altogether. This should come as no surprise, given that, as described in Section 2, many of the participants in this study reported the harmful impacts of law enforcement and policing of trans, Two-Spirit, and non-binary people. Notably, many Indigenous, Black, racialized, and migrant participants reported that they avoided contacting law enforcement at any cost, even in an emergency or when they were victims of violence, because they feared that they or other persons involved would be harmed or even killed by police:

I think it was in [Nunavut]. This guy was drunk, he was walking along the road and the cops rolled up and open the door, hit him with the door and he was in the ditch, and they arrested him and they laughed at him.23 […] That’s why I didn’t want to call the cops on my ex-partner, ‘cause what would they have done if they’d come and got her, [her also] being an Indigenous trans person? They can kill an Indigenous person, no problem, when it comes to an [Indigenous trans person], what are they gonna do, kill her too?

(Jane, transfeminine, Indigenous, Two-Spirit)

The experiences of a great number of our participants highlight that law enforcement and policing are a source of violence, and that they create and perpetuate individual and collective experiences of fear, terror, and trauma. Likewise, these experiences shape and inform if, how, and when people protect themselves from law enforcement and legal systems and, more broadly, from state violence.

As per the legal problems we listed in Section 2, the experiences and legal problems that participants endured when they made contact with legal and administrative systems were shaped by their socio-legal statuses. The structural factors that produce participants’ differential social locations and positions relative to laws, institutions, and legal actors in turn determine how participants come into contact with legal and administrative systems, along with what outcomes and impacts result from their contact. As we discuss in the section below, their statuses also shape the barriers they will face in legal and administrative systems and their access — or lack thereof — to the resources they need to engage with and overcome these barriers.

Barriers and Mistreatment in Legal and Administrative Systems

Participants identified various interconnected characteristics of legal and administrative systems and procedures that were problematic and harmful. In particular, participants reported facing numerous barriers and mistreatment, regardless of how they came in contact with legal and administrative systems. In some cases, participants encountered barriers and mistreatment while they were trying to use these systems to resolve a legal problem. In other cases, their involvement in legal and administrative systems was a direct consequence of their legal problems. Some of the barriers and forms of mistreatment they described included:

Discriminatory and disrespectful encounters with legal actors and decision makers included being misgendered by court actors, such as judges; being asked inappropriate questions (e.g., about one’s identity or appearance) by state agents such as immigration officers; and having one’s problems dismissed or minimized by decision makers, including mediators, union representatives, equity officers, wardens, lawyers, and judges. Participants also reported facing inaccessible or unwelcoming venues and practices within the legal system (e.g., courthouses with sex-segregated bathrooms or holding cells; the use of gendered language in state institutions). As one participant explained, these barriers and forms of mistreatment are sometimes interwoven throughout legal procedures:

I was part of the union. I did think about making a human rights complaint, but they left it for like a year and with the legal process, or the way it was explained by the union to me, the employer would try to dig up every little detail to shame me and humiliate me and bring up every little thing from my past to try to prove that I am not believable or whatever, even though we have documented stuff about them misgendering me. And even the mediator, because we did have a mediation about it, even the mediator misgendered me repeatedly.

(Quin, non-binary, racialized)

Pervasive barriers and mistreatment across legal and administrative systems led numerous participants to describe their contact with various sectors and agents in these systems as “dehumanizing”:

I don’t want to go through that kind of traumatic processing, institutional processing, again, especially knowing that I don’t — there isn’t really anybody that I can count on to be an ally in these institutions. There’s no purpose to me having to put myself through these dehumanizing systems.

(Kiva, non-binary and transfeminine, racialized)

Participants also described how power imbalances negatively affected their interactions with legal and administrative systems. Among other examples, participants discussed how the “other party” in various processes (e.g., a landlord in the context of a housing dispute, an ex-partner during divorce proceedings, the state in the context of criminal or immigration procedures) was able to control the manner in which said processes unfolded, if not their outcome. Power imbalances were produced by numerous factors, such as the inability to access adequate and competent legal representation and limited affordable housing availability (e.g., the inability to move out of unsafe/unlivable housing).

As we discussed in Section 2, power imbalances also involve how legal and administrative systems disadvantage or harm certain individuals because of gendered and/or racialized norms. For example, one Indigenous transmasculine participant decided not to present as a man or affirm his gender identity during separation-related court proceedings to minimize the risk of transphobic violence by the judge. He viewed a judge’s refusal to grant him a protection order from his abusive ex-partner as characteristic of the legal system’s disregard for the safety and security of Indigenous people, particularly of those perceived as women and mothers.

In addition, several transfeminine participants spoke of being disbelieved and denied protection as victims of gender-based violence, particularly Black, Indigenous, and racialized participants who are often treated by various actors across legal and administrative systems as if they are inherently dangerous or aggressive. This often resulted in participants being charged with violent offences when they themselves had been the target of transphobic, sexist, and racist violence. In one example, a racialized and migrant transfeminine participant had a conflict with a client who was in her apartment. The participant and the client both called the police to request protection. When the police entered her apartment, she began filming the situation, a reflex she had developed from years of harassment and abuse by police. The participant explained:

The [policeman] immediately said: “You need to stop filming.” And I said, “Why?” “Because [we] want [to] protect you.” “Okay.” So when I close my telephone, I see they immediately [change] attitude. They... [were] racist to me because the client say to the police I’m... I'm kidnapping him in my apartment. And the police talked to me like... you are the bad person, you know, like... I couldn’t believe it. […] It’s the woman, you know, […] the policewoman [who has no] solidarity for [older] trans women […] like me. It’s very frustrating, honestly.

(Chula, transfeminine, racialized)

Others described how internal accountability or complaint mechanisms in various institutions (e.g., schools, workplaces, correctional facilities) primarily appeared to serve and protect institutional interests and rarely resulted in “justice” for the individuals involved. A participant described how human rights complaints were inaccessible to many people and oftentimes inadequate to address the root causes of many problems,24 a sentiment that was echoed by other participants in this study:

I definitely recognize just how much institutions can’t be depended on to help people, or at least like not in a way that actually I think addresses trans needs [or the] causes of oppression in a way that’s actually useful. […] And like I said, unless you have really concrete evidence of someone calling you a racial slur, or a video of someone telling you, “I’m not renting this house to you because you’re a trans person.” It rarely comes out as plainly as that, you know what I mean? So, I think a lot of people, they get really disappointed with the tribunal process because they think they’re going to be able to get the justice they’re looking for, but in reality, because they don’t have concrete evidence or really tangible proof of what they’ve experienced, it’s just not gonna work out for them.

(Ekow, non-binary, Black)

Even participants who experienced a positive outcome at the end of a legal or administrative procedure, such as those who received a settlement or remedies in a complaint process, often did not feel like they had received adequate compensation or that they had received “justice” more broadly speaking.

For example, participants who had engaged in internal accountability and complaint mechanisms or filed human rights complaints discussed how at the outcome of the process, they were required to sign non-disclosure agreements. They said that being prevented from discussing or further denouncing the institutional problems they had faced (or else facing punitive measures for having breached the non-disclosure agreement) stood in the way of achieving justice. One participant explained this as follows:

I feel like that’s part of the puzzle here, when you have those offices to deal with those things internally, it gives the institution so much power to discriminate in a way that is hidden, right? All the stuff that happened in the actual process, I’m not allowed to share that with people, even though I explicitly didn’t agree to going through the process. […] It feels like it’s just part of the oppression in this case. I understand the need for [non-disclosure agreements] in some cases, but in this case, it’s just protecting the [institution] more.

(Jen, non-binary and transfeminine, white)

Moreover, every participant who reported having been involved in a human rights complaint said that the offers they received as settlements or as an outcome of the tribunal’s decision did not make up for the time, energy, and emotional burden involved in the process itself. Ekow, cited above, described how the burdensome complaint process they went through had been “slow,” “demoralizing,” and even “traumatic”:

I didn’t hear from the tribunal for a long time, another — this was like more than six or seven months later, actually no, it would have been longer than that, it was like nine or ten actually, a lot longer than that. […] And then the pandemic hit and then the human rights [tribunal] was like, yeah, “We’re not seeing anybody, we’re not doing anything right now,” so it’s kind of been at a standstill since then. […] It’s definitely, like I said, been a bureaucratic, slow process that’s quite demoralizing, really quite traumatic to have to recount over and over again what you’ve experienced […] to people who are largely cis, largely white, who probably don’t experience the discrimination that you’re alleging has occurred.

(Ekow, non-binary, Black)

Regardless of which legal or administrative realm these procedures pertained to (and in many cases, they were connected to more than one realm), participants overwhelmingly characterized them as burdensome. Participants identified the financial, time, and energy resources required in legal processes as among the chief difficulties they encountered across legal and administrative systems. The significant delays involved with the great majority of the legal and administrative procedures listed above meant that participants were often caught in legal processes for significant periods of time (often years), without any resolution or end in sight. Some people spoke about how their involvement in legal and administrative procedures took away from or negatively impacted other areas of their lives (e.g., education, employment, health, safety and security, interpersonal relationships). For example, a participant who was involved in a housing dispute that her landlord was purposefully dragging on explained how this legal process was a source of stress that added to the problems she experienced because of deteriorating housing conditions (which, as we described in Section 2, included health problems and material losses):

So [my landlord is] dragging the matter. He doesn’t want to be exposed, probably, in front of the judge. Because he knows… that it’s not going to be good for him and he’s just trying to delay as much as possible. He’s using… every excuse available to just drop the matter. So sometimes it can be really... it can affect people. We are already having enough in our heads and all the problems that we're having with these things [and] to keep having even more with all of that, the stress...

(MX, transfeminine, racialized)

For these and other legal and administrative procedures, accessing adequate legal representation was another significant problem reported by participants. Some people lamented being unable to obtain proper representation because of their financial situation, or explained how representation provided by legal aid was inadequate. Still, being able to pay for legal representation did not guarantee adequate representation. Some participants described how their lawyers did not inform them of the possible consequences of following their advice (e.g., how an advised guilty plea could impact a participant’s immigration status and possibly result in deportation), did not respect their identities (be it their gender identity or, for some participants, their ethno-racial background), or did not appropriately advocate for them across various legal settings.

In contrast, participants who received adequate legal representation and whose lawyers were supportive, respectful of their identities and experiences, educated, and proactive reported faring better, both in terms of legal or administrative outcomes and of their general well-being throughout procedures. Yet, the list of legal and administrative procedures we provided above shows that trans, Two-Spirit, and non-binary people come into contact with legal and administrative systems through various paths. For many of the procedures they must engage in, they are not required to have legal representation or advice, or they are not entitled to it. In other words, for a great proportion of the procedures they recounted, participants had to face legal and administrative systems on their own.

Because of their socio-legal statuses, most participants did not have the legal capacity to resolve or respond to their problems, and/or they lacked the resources necessary to do so. In Section 2, we already explained that some participants could not apply for modifications to their identity documents because their immigration statuses or criminal records prevented them from doing so, and/or because they did not have the financial means to do so. Other examples included participants who were not eligible for legal aid, who did not have the financial means to seek legal representation before engaging in a legal procedure, or who did not know where or how to begin procedures.

Here, we note that numerous participants deplored how difficult it was to find legal information about how to navigate the complexities of legal and administrative systems. This is something we already discussed in Section 2, when describing how onerous and confusing it was to access gender-concordant identity documents and various procedures related to immigration. Still, numerous participants reported that despite the barriers to accessing legal information in legal and administrative systems, they had received crucial support and advice from knowledgeable people within their communities, from community organizations and programs, and from legal clinics. Some participants identified these sources of support as the key factors that contributed to their capacity to pursue — or withstand — various legal processes, as one person explained:

[translation]

I know that the community organisations […] helped me a lot, and I know that they help a lot. And they’re always there to help when a person needs and asks for help. Because if I was alone maybe I wouldn’t be here [today], I would be in jail. I had good outcomes. The community organisations helped me a lot, they’d suggest lots of things. They called me to… to [follow up] and […] they motivated me to… to keep going.

(Maya, transfeminine, racialized)

In Section 4, we will further discuss how participants’ communities were among their greatest resources when facing their legal problems.
Many participants also went to great lengths to educate themselves about Canadian legal and administrative systems, even in the face of important barriers to accessing legal information:

I was lucky enough that I was, you know, savvy enough to go look online and be able to use the right words in the search [engine] and be able to find exactly what I needed. But it still was a lot of... It was a lot of research on my end.

(Zara, non-binary and transfeminine, Black)

Some participants had to expend considerable energy educating legal service providers and other professionals about the complexities of the legal risks they faced, as well as about their communities’ realities. Participants educated legal professionals not only to minimize potential harmful outcomes related to their own legal problems, but also to encourage legal professionals to provide less harmful and more adequate services to other trans, Two-Spirit, and non-binary people in the future.

Finally, participants also named as a deterrent or barrier to engaging in legal and administrative procedures their expectation that the potential outcomes of these procedures would not be worth the necessary time, resources, and energy. Interviews revealed various cases where participants had experienced discrimination or wrongful treatment (e.g., in employment, in educational settings) but were deterred from trying to resolve the situation or seek remedies by the time and resources involved or because of how legal procedures might affect other spheres of their lives. Some of the participants with the most precarious socio-legal statuses even explained that, given how extensive and multifaceted their legal problems were and how their lives were already so deeply enmeshed with legal systems and agents, it was in their best interest to “accept” or try to forget about their problems, rather than try to resolve them.

[translation]

I left it at that, […] I didn’t go looking for help. I just dropped the whole thing. Sometimes I give… I give up like that so that the [problems] don’t drag on longer and [I don’t have to] be reminded all the time of what happened, why it happened, and have it running through my head all the time. I try to, like, leave it in the past and not remember. That’s why I said, “Okay […] really, it would be great if I got help,” but I forgot about it. I said, “Okay, these things happen in life,” [and] I didn’t pursue it.

(Alexa, transfeminine, racialized)

As this section has shown, a common theme across interviews was that participants avoided or tried to avoid contact with legal systems and actors. This is not surprising, given the fear or lack of trust they felt towards various state institutions and actors (in particular, towards law enforcement), which resulted from the problems and numerous barriers they encountered when engaging with legal and administrative procedures and the abuse and mistreatment they experienced at the hands of legal actors. In sum, what our findings demonstrate is that, overwhelmingly, participants reported harmful experiences in Canadian legal and administrative systems.

Footnotes

22 “Institutional erasure” has been defined as “a lack of policies that accommodate trans identities or trans bodies, including the lack of knowledge that such policies are even necessary” (Bauer et al. 2009, 354).

23 See John Van Dusen “Nunavut Man in Violent Arrest Later ‘Viciously Attacked’ While in Police Cells,” CBC News (4 June 2020) https://www.cbc.ca/news/canada/north/trudeau-nunavut-premier-address-violent-rcmp-arrest-1.5598632.

24 For more on the limits of anti-discrimination protections in legal labour sectors, see Irving and Hoo (2020).