ACCESS TO JUSTICE FOR TRANS PEOPLE

Recommandations

Our recommendations to address the barriers outlined in the report are animated by five key factors:

1. Trans people must be supported to lead the further development and implementation of all recommendations, as well as the development of materials, tools, etc., associated with the recommendations.
2. An intersectional lens that accounts for the different experiences of trans people with different identities and circumstances must be employed at all stages of further development and implementation of the recommendations.
3. Without income, housing, and access to appropriate health and social services, trans people's lives will simply not improve.
4. Tinkering with rules, policies, laws or regulations is not enough. Rather, law reform and systemic change is necessary as many of the root causes of people's legal issues stem from past and current rules, policies, laws, regulations and systems. As part of this reform, early preventative intervention and resolution processes, as opposed to only court- and tribunal-based processes, must be implemented to effectively respond to the legal needs of trans people.
5. This work must be done in a way that respects the sovereign rights of the Indigenous Peoples of Canada, incorporates Indigenous justice approaches and responds to Calls to Action of the Truth and Reconciliation Commission of Canada and Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Indigenous trans and/or Two-Spirit people must be supported to take the lead on this essential work.

SUPPORT FOR TRANS LEGAL PROFESSIONALS

Trans people should be encouraged, supported, mentored and funded to complete legal training. Trans people should be supported to lead initiatives intended for or affecting their communities.

Recommandations

6. Trans people should be supported to lead initiatives involving trans people and trans issues.
7. Legal educational institutions should fund endeavours to recruit students from trans communities.
8. Legal educational institutions should offer comprehensive funding and resources, including mentorship, to support trans students.
9. Trans people should be supported to lead initiatives to address the discrimination they face in the legal profession.
10. Legal educational institutions should educate all staff and faculty on trans identities and ensure that trans students, staff and faculty are treated with respect and dignity.
11. Legal educational institutions should include trans-specific content in courses that address ethics, client and practice management, as well as substantive legal areas that impact trans populations. Whenever possible, this content should be developed and delivered by trans people.
12. The Federation of Law Societies of Canada and law societies should update the codes of professional conduct to make it explicit that intentionally deadnaming, misgendering or mistreating the personal information of trans people is a breach of a lawyer’s professional responsibility, and enforce existing rules calling for non-discrimination and civility.
13. Law societies should update their practice resources, legal profession admission programs, checklists, and continuing education requirements to improve the level of trans competency and awareness among lawyers, as well as knowledge of trans-specific substantive legal issues.
14. Law societies should update their databases so lawyers can list their pronouns, titles and correct names to avoid misgendering and deadnaming.
15. Legal professionals should actively participate in changing the culture of the profession to combat endemic transphobia affecting trans clients, trans lawyers and students.

PROFESSIONAL TRAINING

All actors in the legal system, as well as health care providers, should be educated on trans identities.

Recommandations

16. Law societies in Canada should require at least three hours of mandatory equity, diversity and inclusion training per reporting cycle, including one hour of trans-competency training.
17. All courts and administrative tribunals should implement policies related to the use of pronouns, language and titles, including those related to safety and confidentiality.
18. All judges and court staff, as well as interpreters assisting clients or appearing in courts, should receive mandatory and ongoing trans-competency training.
19. All administrative tribunal staff, as well as interpreters assisting clients or appearing in tribunals, should receive mandatory and ongoing trans-competency training.
20. Legal educational institutions should integrate education and training on trans issues into their curriculum.
21. Law societies should assess competence on trans issues as part of bar and paralegal admission.
22. Federal, provincial and territorial governments should require and fund ongoing trans-competency training tailored for legal aid employees (including but not limited to lawyers), legal clinics, private practice lawyers and paralegals.
23. Regulatory bodies for healthcare professionals across Canada should require at least three hours of mandatory equity, diversity and inclusion training per reporting cycle, including one hour of trans-competency training.
24. Federal, provincial, territorial and municipal governments should require that public servants complete mandatory and ongoing trans-competency training.

LEGAL SERVICES

Many trans people don’t have access to accurate, trans-specific legal information and legal services. The legal services required include legal advice, representation and referrals, as well as community development and law reform activities. This need should be met.

Recommandations

25. Federal, provincial and territorial governments should ensure adequate and sustainable funding for legal aid services across Canada, particularly in Indigenous and racialized communities.
26. Federal, provincial and territorial governments should fund trans-led legal clinics for trans people, funded by, but independent of, government, that provide free legal services.
27. Federal, provincial and territorial governments should fund remote legal services for trans clients. When needed, travel costs and access to data and hardware should be properly funded to increase the range of legal services.

IMPROVED PUBLIC ACCOUNTABILITY AND TRANSPARENCY

Trans people’s living experiences expose systemic barriers embedded in and created through rules, policies, laws, regulations, systems, programs and organizations. Public organizations that play a role in trans people’s experience of justice need to improve their transparency and public accountability, with increased monitoring and course-corrective measures to improve trans inclusion.

Recommandation

28. Public and private entities should be held accountable for existing systems and individual exclusions based on gender identity or expression and made to correct them. Public and private entities should critically assess their policies and practices, report publicly on their findings, implement course-corrective measures and report publicly on progresses made.

INCLUSIVE COURTS AND ADMINISTRATIVE TRIBUNALS

Trans people should be able to access the legal system without fear of being forcibly outed, experiencing assault, misgendering or misnaming. Courts and tribunals should be safe for trans people to work at or interact with.

Recommandations

29. All courts and tribunals should:
    • update their standard practices to include pronouns and titles to be used in the proceedings when participants are introduced.
    • adopt Counsel as a title for all lawyers rather than continuing the use of gendered titles for lawyers.
    • adopt gender-neutral language for official court positions, such as “Justice”, to avoid gendered alternatives, such as “Madame Justice” or “Madame Clerk”, creating a safer environment for gender-diverse individuals who want to be appointed to court positions, or potentially come out at work.
    • use a gender neutral and gender inclusive writing style.
    • assess their facilities for safe, accessible washrooms and robing rooms for trans people, including non-binary people.
    • review their internal communications policies to ensure that all emails going in or out of the court include pronouns and inclusive language.
    • review their hiring practices for staff and clerks to ensure that gender norms do not lead to the exclusion of qualified trans candidates.
30. Those courts and tribunals with existing practice directives and notices to the profession about pronouns and styles of address should enforce them and prevent the use of courts and court processes to out, deadname, and misgender trans legal participants.

EMPLOYMENT EQUITY LAW REFORM

Ongoing employment discrimination excludes trans people from employment. Additional safeguards should protect trans people from discrimination in the workplace.

Recommandation

31. All employment equity related legislation in Canada should explicitly protect all people who face gender-based marginalization, which includes trans people of all identities.

CRIMINAL LAW REFORM

The law itself causes many problems for trans people. Reform is required, in consultation with the communities most impacted. All such reform should be informed by an intersectional equity, diversity inclusion analysis.

Recommandations

32. The federal government should eliminate mandatory minimum sentences.
33. The federal government should adopt a spent regime model, where an individual’s record is automatically sealed after a certain time.
34. The federal government should amend criminal laws that contribute to the criminalization of trans people including in the areas of HIV non-disclosure, sex work and drugs, in consultation with trans people living with HIV, trans people engaged in sex work, and trans people who use drugs.
35. All levels of police service including the CBSA should be compelled to stop targeting, carding and over-policing of trans people..

IDENTIFICATION DOCUMENTS

Many government administrative regimes related to identity documents are based on harmful stereotypes about trans people and include unnecessary barriers such as onerous proof of identity, prohibitive costs, and gatekeeping by lawyers, notaries, commissioners and doctors. This deprives many trans people of access to ID, which is not only discriminatory and dehumanizing, but impacts full participation in society. Updating ID should be as easily accessed as updating one’s address.

Trans people must be issued identity documents that reflect their identity.

Recommandations

36. Provincial, territorial and federal governments should immediately amend their current practices for issuing identity documents to address barriers trans people experience, including onerous application processes, a lack of coordination between government ministries, and parental consent requirements.
37. Fees associated with issuing or amending identity documents should be waived for everyone, particularly Indigenous trans and/or Two-Spirit people who want to reclaim their family lineage names.
38. Reparations for the consequences of requiring sterilizing genital surgery as a prerequisite for updating gender markers should be paid.
39. Indigenous trans and/or Two-Spirit people should be supported to reclaim Indigenous names. To assist with this, governments should, among other things:
    • update their systems to Unicode so identity documents and other records can be produced showing characters not in the Latin alphabet (such as characters in Indigenous languages), and diacritic marks (which indicate pronunciation);
    • amend name legislation to allow for single word names.
40. Provincial and territorial government agencies should end the requirement for the mandatory assignment of sex or gender on birth records, and all government records, and should remove current requirements for compulsory display or sex or gender markers on government identification.
41. Citizenship should not be a barrier to obtaining or updating identity documents.
42. Regardless of the status of a trans person’s identity documents, all levels of government, legal service providers, courts and tribunals should:
    • adopt the language and gender markers trans people request and provide access to required services and facilities, such as washroom and changerooms;
    • update procedures and data management practices to protect trans people from being outed.

FINANCES, HOUSING, HEALTH AND SOCIAL
SERVICES

Trans people have statistically lower incomes than other people in Canada and often encounter discrimination, including in employment and housing. Many lack financial, social and emotional support as a result of their isolation from family. Trans people should have access to trans-informed social services.

Recommandations

43. Federal, provincial and territorial governments should implement programs to ensure income security for all trans people.
44. Federal, provincial and territorial governments should implement programs to ensure affordable housing for all trans people.
45. Federal, provincial and territorial governments should ensure adequate funding for trans health, including mental health, and social services, for all trans people.

Download Annex A