Legal system ‘contributing’ to problems for trans people ‘concerning,’ CBA president says of report

By Amanda Jerome

Law360 Canada (February 9, 2023, 12:15 PM EST) -- The Canadian Bar Association (CBA) and HIV & AIDS Legal Clinic Ontario (HALCO) have released a report highlighting the “barriers and challenges for trans, non-binary and gender diverse people in accessing justice,” which includes 40 recommendations for improvement.

The report, released Feb. 3, emphasized the “significant and pervasive barriers and burdens encountered by trans people when they seek help with legal issues.”

“In conjunction with other well-documented problems such as over-policing, threats to personal safety, economic hardship, and isolation from families, the need for improvements in access to justice for trans people is particularly acute,” the report explained, noting that “instead of encouraging trust in the legal system,” the system itself can be the problem.

CBA president Steeves Bujold told Law360 Canada there were “many findings” in the report he found concerning, noting that the main one was the “extremely low” level of confidence members of the trans community have in the justice system.  

CBA president Steeves Bujold

CBA president Steeves Bujold

“It’s everyone,” he stressed, noting that the distrust spans to lawyers, judges, police officers and court clerks.

“But what is the most concerning,” he added, is that the “legal system is not part of the solution and is rather contributing to the problems this population is experiencing.”

Bujold described access to justice for trans people as a “live and current issue that needs to be addressed.”

As the first CBA president with a same sex partner, Bujold stressed that tackling this issue was the “most important subject to address” during his term.

“On one side,” he noted, the trans community is “a part of the Canadian population that has more legal needs than the average population. But then on the other side, we seem to not have the correct setup to address those needs properly and increase the confidence and the trust in the legal system.”

He emphasized that people need to have the “trust and confidence” in the justice system to properly address their disputes.

“If you don’t have the trust, you will just not be able to solve your problems or you will turn to something else that will be less adequate,” he explained.

The Access to Justice for Trans People report made clear that “trans” was used as an “umbrella term to refer to a diverse array of experiences and identities, including Two-Spirit, non-binary, agender, genderqueer, genderfluid, cross dresser, transgender and transsexual, as well as those who identify as men or women with a history that involves a gender transition.”

In 2019, the report explained, “HALCO, on behalf of the TRANSforming JUSTICE Research Team, approached the CBA with the goal of situating findings from TRANSforming JUSTICE in the broader access to justice framework of the CBA’s Reaching Equal Justice report.”

The report was therefore “drafted by the CBA and the TRANSforming JUSTICE Research Team, with reviews by trans and Two-Spirit people, CBA Sections and Subcommittees, private bar and legal aid lawyers, and TRANSforming JUSTICE consultation and outreach committees.”

The report found that “trans-specific discrimination and can be further compounded by discrimination based on identities and intersections of identities including Indigeneity, race, gender identity, sexuality, class, and actual or perceived HIV status.”

According to the report, the “frequency of justiciable legal problems reported by TRANSforming JUSTICE trans participants is stark: in the three-year period studied (2013-2016), 71% (n=129) of the 182 survey respondents who completed the legal problems section of the survey reported at least one justiciable legal problem, compared with 48.4% of the adult population in Canada generally.”

“Eighty-two percent (n=18) of the 22 Indigenous respondents who completed the legal problems section of the survey reported at least one justiciable legal problem, as did 83% (n=10) of the 12 non-Indigenous racialized respondents,” the report explained, noting that the “most common justiciable legal problem” identified by trans survey respondents was “discrimination.”

The report also noted that 97 per cent of respondents “agreed or strongly agreed that the legal system works better for cisgender people than for trans people.”

The report emphasized that “trans people should be encouraged to join legal professions and be supported and mentored.”

“Universities and other educational institutions should ensure their admission processes are free of systemic barriers and support trans students. Trans people should be supported to further advocate and lead for change in the legal profession,” the report added, while also noting that “more needs to be done to improve cultural competency among lawyers and others providing legal services to trans and other equity-seeking communities.”

The report included 40 recommendations, spanning themes of “support for trans legal professionals” and “inclusive courts and administrative tribunals” to employment equity and criminal law reform.

“It is clear that existing legal processes do not offer adequate solutions to trans people’s legal problems, and many avoid the legal system altogether because participating in the legal system necessarily involves discrimination and, at times, danger. This report is intended to place responsibility for change on the legal system and its players, and to recommend concrete measures to motivate action toward a legal system that is truly human rights based,” the report concluded.

Bujold told Law360 Canada that the “main theme” of the recommendations is “empowerment.”

“Like in every situation where there is a minority community that is facing challenges, the solutions should come from the individuals, the member of the community themselves. Trans individuals should be included in the committees, Task Force, any organization that is trying to find solutions. It should come mainly from the community because only the members of the community know what they need and know what are the solutions,” he explained, noting that this can “bring a level of complexity” and “add time,” but this is required to “find the real solutions” and “increase the level of confidence for good.”

Bujold stressed that he will be establishing a Trans Advisory Group at the CBA that will survive his term as president.

“The names of the individuals will soon be made public, and we will have our first meeting in the coming weeks, but they are highly regarded individuals in the community, mainly trans individuals from across the country, with different backgrounds that will come together and sit and tell us, the association, what should we do first,” he said, noting that he’s “confident that the solutions that will come out of this advisory group will not only be the right ones, but will be legitimate because it will come from the community itself.”

Bujold also noted that the biggest takeaway from the report for the legal profession is the “data.”

“With any problems, sometimes you think you know what you're facing, but we don't know what we don't know,” he added, stressing that “now we have robust data” to work towards solutions.

The CBA president encouraged education as an immediate action that can be taken to improve access to justice. He has personally provided a lot of LGBTQ2S+ education, specifically in Quebec, and the feedback he receives shows that people are grateful to improve their understanding, or some other people say, “I was just not aware. Thank you for making me informed that reality existed …”

“Education is a big part of the solution. There’s not a lot of people that aren’t doing what they’re doing intentionally. I think that they’re doing it because they just don’t know and a lot of people are well intended, but they just need the tools. They need the information they need the practical advice to do the right things to increase the level of confidence and the trust of the trans community in the legal system and then increase access to justice,” he explained.

In a statement, HALCO stressed that “the recommendations in this report are ultimately only part of the solution.”

“They focus on certain actionable items that can improve access to justice for trans people within Canada’s legal system. However, as the legal system itself is the root cause of many trans peoples’ problems — and as effective solutions are generally not arrived at through that system — more must be done than the full implementation of these recommendations,” HALCO added, noting that “law and policy reform is required, led by trans people, as is a commitment to ongoing reform by institutions and individuals within the justice system to improve.”

Lee Nevens, chair of the CBA Advisory Group on Inclusion and Access to Justice for Trans, Non-Binary and Gender Diverse People, said that “although there has been some progress in the treatment of trans, non-binary and gender diverse people in a few areas of our justice system, we continue to experience discrimination, harassment and violence in many aspects of our lives, including attempts to retrench any modest gains we achieve.”

“The data and recommendations in this report are a useful addition to the work in this area and will be used as a catalyst for discussions and action on improving access to justice for trans people,” they explained.

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