Section 4 – Discussion and Conclusion

In this report, we have provided extensive evidence of the serious, wide-ranging, and interconnected legal problems that trans, Two-Spirit, and non-binary people experience in Canada. This study has demonstrated that participants confront differential legal burdens because of their socio-legal status, their position relative to social norms and relative to laws, legal systems, and legal actors. In other words, our findings reveal that people’s socio-legal statuses in great part determine their access to resources, opportunities, entitlements, and protections (including the protection of their rights), and thus their susceptibility to experiencing legal problems. Furthermore, we have demonstrated that participants face significant difficulties when engaged with various legal and administrative procedures, and that legal and administrative systems are often the very source of their legal (and other) problems. As we have shown across previous sections of this report, participants’ socio-legal status shaped the origin, trajectory, and outcome of their legal problems, and, in turn, their legal problems often reshaped their socio-legal status.

In this final section, we synthesize some of our study's main findings and provide further reflections on their significance and applicability. First, we summarize what our interviews revealed about the complex nature of the legal problems facing trans, Two-Spirit, and non-binary people in Canada. Second, we review how participants' socio-legal status had serious impacts on their ability to engage with and navigate legal and administrative systems. Third, we propose that some of the main root causes (i.e., sources) of trans, Two-Spirit, and non-binary people's complex legal problems cannot be resolved without comprehensive law and policy reforms. Finally, our interviews demonstrate the essential, central role that trans, Two-Spirit, and non-binary people’s communities — broadly defined — play in helping them respond to serious and complex legal problems. This also points to the central role that communities must play in defining responses to these problems.

1. Trans, Two-Spirit, and non-binary people’s legal problems are complex and persistent, spanning multiple legal systems

Participants’ legal problems were generally highly complex, spanning multiple legal and administrative systems, institutions, and jurisdictions, and occurring over periods of several years or even decades. The effects of these legal problems were especially complicated, long-lasting, and intractable in cases where participants faced multiple legal problems at once and/or had to simultaneously navigate more than one legal or administrative system.

Some of the most notable and recurring sources of enduring legal problems reported by participants included:

Interviews consistently revealed the interplay between legal and administrative systems and institutions (e.g., child and youth protection services, educational institutions, and the criminal legal system; immigration and criminal legal systems). The impacts of this interplay varied in severity, and in some instances had devastating consequences, such as detention/custody, risk of loss of immigration status and deportation, loss of secure housing and employment, threats to physical and mental health and safety, etc. Our data indicates that as participants became more embroiled in interconnected legal and administrative systems, their legal problems became more complicated, harmful, and difficult to resolve.

2. Legal and administrative systems offer inaccessible and insufficient remedies for trans, Two-Spirit, and non-binary people’s complex legal problems, and contact with these systems is often a source of harm

When our study's participants tried to resolve their legal problems, they often found that contact with legal and administrative systems made their problems more — rather than less —complex. Participants reported that these systems and procedures were not only inaccessible, insufficient, and burdensome, but also harmful, dehumanizing, and potentially lethal. Our findings outline the pervasive barriers, mistreatment, and abuse that participants experienced within legal and administrative systems, regardless of how and why they came into contact with those systems.

Problems identified by participants included: discriminatory, stigmatizing, and victimizing encounters with legal actors, including judges, state agents, and lawyers; unaffordable, inadequate, or incompetent legal representation; unsatisfactory, insufficient, and often harmful outcomes of procedures, including accountability/complaint procedures designed to remedy legal problems; a lack of information on how to navigate complex and interconnected legal and administrative systems and procedures; the overall resource-intensive and burdensome nature of legal and administrative procedures; and underlying power imbalances between research participants and various legal actors (see Section 3 of report for greater detail). These forms of barriers and mistreatment made legal and administrative procedures even more onerous, further entrenched participants in their legal problems, and often created new legal problems and/or caused them to avoid legal systems and actors altogether.

Participants consistently reported that they could not access the adequate legal resources required to uphold and protect their rights within legal and administrative systems. Moreover, participants’ socio-legal statuses — including their economic insecurity, immigration statuses, and criminal records — determined or influenced the extent and severity of the barriers and mistreatment they faced. In some cases, participants reported that the removal of certain barriers (e.g., gaining access to legal resources, being able to afford legal representation, being treated with respect by legal actors) played a role in mitigating the burdens and harms associated with their engagement in legal and administrative systems.

Often, however, increased access to support or resources could not have resolved participants’ underlying legal problems, specifically when the problems were direct results of laws, policies, and the socio-legal statuses they create. For example, improved representation could have helped reduce some participants' chances of detention and/or deportation. Still, it would not have resolved the numerous other legal and non-legal problems resulting from their precarious immigration status, such as their inability to access health care or to work legally. As such, our results clearly demonstrate that programs and reforms solely oriented towards improved contact with legal and administrative systems would not remedy or even address the sources of many participants’ serious legal problems.

3. Trans, Two-Spirit, and non-binary people’s legal problems cannot be resolved without law and policy reform

As we demonstrated across this report, laws and policies are the source of many participants’ legal problems. These legal problems were, and are, inevitable, and will persist as long as those laws and policies exist. Without substantive law and policy reform, many trans, Two-Spirit, and non-binary people will resort to various strategies and alternative measures to mitigate or shield themselves from ongoing and future harm from laws, legal systems, and law enforcement.

Our study participants’ legal problems are exceedingly diverse. We therefore cannot specify every law or policy that caused or contributed to those legal problems, given the multiple sites of creation, enactment, and enforcement of law and policy in many of the cases we described. However, a great number of participants were particularly harmed by certain punitive laws and policies, such as criminal law, as well as other types of punitive law (e.g., certain provisions under the Immigration and Refugee Protection Act). These laws and policies — independent of enforcement — generated numerous serious legal problems for participants which negatively affected many aspects of their lives.

For example, for many participants, the criminalization of their activities either made legal problems inevitable (such as through criminal charges) or otherwise forced them to live under constant threat of legal problems. We have shown that this threat itself constituted a legal problem and rendered it difficult if not impossible for participants to rely on the legal system to remedy their legal problems. Whether through criminal charges or through persistent threat, when participants’ activities were criminalized, virtually every domain of their lives became a legal problem. Recall, for example: Alexa’s court-ordered conditions preventing her from leaving her home or accessing community without the risk of arrest; MX’s inability to earn income through sex work without the risk of eviction; and Maya’s inability to access protection from police services following a sexual assault without the risk of prosecution for aggravated sexual assault charges based on her HIV status.

As we demonstrated in these and other cases, once participants were ensnared in criminal legal procedures, criminalization created a cycle of continuing and worsening legal problems (e.g., criminal inadmissibility within the immigration system, increased severity of sentencing within the criminal legal system, enduring barriers to housing and legal employment, inaccessibility of/ineligibility for record suspensions). For these participants, the root cause of many if not all of their legal problems can be traced to the existence or enforcement of a criminal offence. Here, it bears mentioning that the repeal or rewriting of a given law or policy would not be sufficient to resolve many participants’ legal problems. For example, we have shown that for Trans, Two-Spirit, and non-binary people who have been convicted of an offence that has since been repealed, only the expungement of their criminal records would prevent further related serious legal problems.

Although improved access to legal representation and legal procedures may assist in reducing some of the adjacent legal problems stemming from criminalization, it is evident from our data that criminalization as a legal problem can only be remedied through comprehensive law and policy reform. Short of this, participants who experienced criminalization will be subject to a continued cycle of related legal problems. In sum, this study has revealed that resolving trans, Two-Spirit, and non-binary people’s legal problems cannot be achieved by merely improving their “access to justice,” and, instead, many root causes of these problems (i.e., their sources) require broader law and policy reforms.

4. Trans, Two-Spirit, and non-binary people addressed their legal problems via community and trans-led organizations

For the great majority of participants in this study, the most important resource for facing their legal problems was their community, broadly defined. Depending on the person, community could refer to their friends, families, and other loved ones; the people with whom they worked; their cultural, religious, spiritual, or artistic communities; people in their neighbourhoods; as well as members of the advocacy or activist groups to which they belonged. One participant described how crucial the presence and support of other trans people had been for them:

It’s trans people who are […] doing suicide intervention, they’re the people who will get you the hormones that you need, who will teach you about different types of surgeries or interventions. […] So yeah, I just really believe in the power of community, and [of having] loved ones in [your] corner who share [your] identity.

(Ekow, non-binary, Black)

Overall, participants described their communities as sources of support (e.g., emotional, financial), information (e.g., for where to access services or information), and guidance (e.g., for how to navigate various legal and administrative systems).

Likewise, participants noted that when they sought out organizations to help them respond to their legal problems, they received the most useful and substantive support from organizations within their communities. In some cases, service providers in community agencies provided direct assistance to participants while they were engaged in legal procedures, even though such agencies did not specialize in legal service provision. One participant, for example, described how a staff member from a women’s shelter had helped her with the process of changing her name and sex designation on her identity documents, and another mentioned how a local HIV/AIDS community organization was in the process of assisting her in obtaining a new copy of her birth certificate. In many cases, members of their communities and trans-led organizations and initiatives offered a form of legal expertise that was unavailable elsewhere. For example, trans community supports were especially indispensable in helping participants anticipate the legal implications of a decision or course of action (e.g., Pre-Removal Risk Assessment applications for migrants facing deportation, advice with complaint and grievance processes in correctional facilities), particularly with regard to the complex forms of criminalization unique to certain trans communities. Others said that community organizations and programs were crucial in helping them find competent legal (and other) service providers or in finding legal information. Some participants reported that community organizations they worked with were sometimes required to educate their lawyers on the legal risks and problems faced by members of their communities.

Additionally, participants discussed how accessing different services and programs and having positive experiences with service providers in various community agencies was another key source of strength and support that helped them mitigate and cope with their legal problems. Some Indigenous, Black, and racialized participants noted how powerful it was for them to engage with staff from organizations and community mentors who shared their identities, even when their services or expertise were not specifically focused on the realities of trans, Two-Spirit, and non-binary people. Some participants also talked about the importance of accessing adapted, inclusive, and non-judgmental support services (e.g., mental health, harm reduction, and peer-counselling services) while they dealt with the consequences of various legal problems. They reported that community support of this kind made it possible for them to respond to their legal problems, many of which were too complex or enduring to resolve on their own or with the help of public legal services alone. Our evidence shows that participants who felt their life experience and expertise was acknowledged, understood, and respected while they were facing or responding to their legal problems reported markedly better outcomes.

One participant further remarked how trans, Two-Spirit, and non-binary people’s firsthand knowledge of their legal problems must be centered in any process of decision-making about potential solutions to these problems:

I think it’s very important that when decision makers get together and make these decisions, that they include the thoughts and voice of people with lived experience. They may be able to provide some detail or angle, you know, that [decision makers] would have never bothered to consider, because they just don’t have that way of thinking.

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

Throughout this report, we have endeavored to bring the thoughts and voices of trans, Two-Spirit, and non-binary people to the consideration of the Department of Justice, with the understanding that our study’s participants — and more broadly, their communities — are experts on both the sources of and solutions to the serious legal problems that confront them. Trans, Two-Spirit, and non-binary communities play a vital role in analyzing their serious and complex legal problems, and in producing the necessary related legal knowledge and expertise required to respond to their problems. As such, these persons — and their communities — must be recognized as experts and given leadership and decision-making roles at every step of the design, elaboration, and implementation of any strategy developed in response to their problems.