Florence: I’m cynical with a solution, you know, because at the end of the day I might be cynical that there is no hope for the future, but people are still suffering in the here and now. And so as much as I may not have hope, I can’t just like do nothing, we can’t just do nothing.

Julia: Hi. I’m Julia, host of The Every Lawyer. My guest today is a hero, literally. Florence Ashley received the CBA Sexual Orientation and Gender Identity Community Hero Award in 2019 and has just published their first book, Banning Conversion Practices. In this podcast, they bare all.

Florence: And this is where I’m revealing, you know, the deep influence of civil law traditions that [hound? 00:00:42] me, but the society of like people sleeping with their civil code [laughs] and the law being something that’s accessible. The law being something that people can just pick up and read and understand without having to go through a million court proceedings in order to finally get a few judgements that tell you how the hell this all works.

Intro: This is The Every Lawyer presented by the Canadian Bar Association.

Julia: First we nerded out about the best legal databases out there.

Florence: I’m sorry, who knows how to use Westlaw. Well first of all you need money to use Westlaw and –

Julia: First, that’s it.

Florence: – also I [unintelligible 00:01:24] Westlaw but let me be clear, I say who knows how to use Westlaw because I stopped using Quicklaw. So let me not be taken for a Quicklaw lover.

Julia: No, no. That’s good, that’s good, yeah [laughs].

Florence: The only one I actually like is CanLII.

Julia: I was about to say CanLII. CanLII is quite friendly, but yeah.

Florence: Yeah. I mean it has its – it certainly is not as complete, but it’s more than anything accessible and that’s the thing that I value the most. Also, it looks pretty –

Julia: Even the name. Yeah, I mean given what it is, you know, it’s a bit more accessible.

Florence: Yeah. I mean do you remember when they had [CatLII? 00:02:02]?

Julia: No, that I don’t.

Florence: What, you don’t remember – OK. I think you can still get it if you like generate an error, CanLII error. So if you find a way to generate an error page on CanLII, you can still see it but – a random page and then – just pick a random page, add a few letters to the URL/ –

Julia: I just found it; I just have it. Yeah, I just [laughs] …

Florence: Yeah, and then you have your –

Julia: Wow, it [gets? 00:02:31] on Cat, this is so good and then you have the cat. Wow, that’s good, I love it.

Florence: Yeah. So, you know, and this is a great example of like – and honestly, I wish CanLII was more well known. Like there’s a couple of people who know CanLII but honestly, like imagine if people were like taught how to use CanLII in high school.

Julia: Yeah. I mean and using law as a tool to empower yourself.

Florence: Well, so the law is actually way too inaccessible for most of us so what we use it for is to self-advocate, right. Like anti-discrimination suits, like people don’t sue. Like have you seen the Human Rights Tribunals, like nobody goes through that. Like a couple go through that.

I mean I was like searching a couple of years ago and it was like what, like 200 trans-discrimination cases on CanLII when we can like estimate probably like 20,000 to 30,000 cases of like serious discrimination against trans people per year in Canada, you know. So it’s like it’s a joke.

But when you have the law, when you are able to print a judgement and bring it to the employer and tell him, “Hey, you’re not allowed to do this,” well hopefully that will give the employer pause and perhaps back down. So like that’s certainly the hope. And it’s not always going to work, but you know what, it’s going to work more often than the number of times you’re actually going to go to court.

Julia: In this episode of The Every Lawyer we gain insight into the drafting process behind Bill C-4, Banning Conversion Therapies in which Florence participated extensively. We learn why the hard work of litigation must be done and receive actionable guidance on working with clients who are survivors of conversion practices.

Florence: I feel like lawyers one thing that’s important is kind of like decentre yourself, and also realize that winning is not the end all be all, how you win is important. And you need to realize that, you know, securing the biggest sentence or whatever might not be what matters the most to your client, this isn’t – like and similarly especially in like civil lawsuits, like securing a big payout might – like your client might not care. They might and it sure never hurts, but like that might not be their goal.

So really be attentive to what their goals are and take the lead from there and see how you can do this in a way that really gives them the lead and makes them feel like they’re in control and are empowered throughout the process. Because, at the end of the day, this isn’t about some abstract notion of punishment, this is about making the world a better place for survivors and it’s about helping them heal and backing them as a society And we can’t do that if lawyers are bringing the big ego to the courtroom and walking all over everybody including survivors, you know.

You know, if a survivor wants you to walk all over other people that’s fine, go ahead have fun, but make sure that that’s what they want first, you know. Like, you know, sometimes you just need to – and I think honestly that’s something that needs to be done more in law in general. Like stop assuming that you know what people want and need and stop centring yourself, you know.

Like the legal system is extremely tough to navigate and it’s costing people’s livelihoods and at times lives, so the least we can do is decentre ourselves and truly bring the best for those people on their own terms. And that’s an important thing, I think we all need to learn more from is to be there for people on their own terms, not on what we think they need.

You know, the reality is if you have a survivor in a courtroom, you’re pretty much guaranteed to have depression and anxiety at a minimum, probably CPTSD or PTSD very, very high likelihood. And then there’s a fairly decent likelihood that – also very high likelihood of a history of substance use and then also quite high likelihood that they might – if they experienced it quite young, very high likelihood of having been diagnosed with BPD or I mean slightly less likely histrionic personality disorder, but borderline personality disorder especially. And then the problem that happens is as soon as you have borderline personality disorder the courts stop listening, doctors stop listening.

And the kind of deep and tragic irony here is that in a lot of cases the BPD is because you went through conversion practices. So it doesn’t undermine your credibility because it’s literally why you’re there, it’s a result of that very issue. So, you know, it’s really tough and like I don’t blame survivors for oftentimes not wanting to go through the court system. A lot of the time what they want more is to talk about it and share their stories out there and then they get hit with a slap.

Julia: So at the end of this podcast I think you will agree that Florence is indeed cynical with a solution.

Florence: When you have a civil suit, survivors decide for themselves who they want to go after. So they’re not going to go after the people that they think are, you know, like them, that were manipulated. And are survivors always going to make the best choices? Well probably not, nobody does, but they’re certainly going to make hell better choices than the cops. And so that’s one of the big concerns there.

Then I also have, you know, the concern about the fact that it’s going to be really hard to prove at criminal law, right, because this is based on intent and like quite good law getting to intent. A lot of the time if the person decides not to testify – and which they can just refuse to do because it’s a criminal proceeding. If it’s a civil proceeding, you can force them or draw adverse inferences, you can’t do that at criminal law.

The same thing with like, you know, literal control over who you ask to come as witnesses and considering that probably you’re going to have to call survivors as witnesses to corroborate things and well that’s an immensely re-traumatizing process. And again now it’s in the hands of cops, now it’s in the hands of prosecutors, they’re going to be making those judgement calls and at the end of it, you’re probably going to struggle to secure a conviction because the burden of proof is prove beyond a reasonable doubt because it’s criminal law. That’s hard.

So a civil suit is much more flexible in many ways that is much more empowering to survivors. Survivors are in control of the process to a certain degree. It’s not perfect but they at least get to decide, you know, how much they expose themselves to being re-traumatized and they get to make a lot of those important decisions because again, that process is super re-traumatizing. And I mean I hope that we’re not going to get a situation where the Crown decides to force a survivor to testify and like I sure hope so. But do I trust so, absolutely not. Not at all, zero.

And so yeah, so you have this weird situation where the entire point of proceedings because by the time the proceeding is happening you haven’t – you failed to discourage a person, right. So like that’s already done, this is not a deterrence issue anymore, this is a healing – it’s about healing and protection. For something to be healing, you need to feel empowered.

If it’s disempowering you, if it’s re-traumatizing you it’s not going to help, and the criminal justice system is quite literally the most disempowering place you could possibly be. Which is not to say that the civil – you know, that the civil proceedings are particularly empowering, but they’re still much, much, much less disempowering than the criminal justice system and for everybody involved. And so yeah, I’m quite concerned about how that’s going to pan out. I think realistically though the law will just largely go unenforced.

And so we do really need to keep pushing for provincial laws and better things and, you know, funding for survivors and, you know, legal aid coverage for lawsuits. And legal aid coverage for, you know, one, doing the suing, but also defending suits because like as a survivor not as a provider of conversion practices because you know what happens all the time is you speak out against the person who does conversion practices and then you get hit with a defamation suit.

Like during the lead up to this law I’ve seen multiple people get cease and desist, multiple survivors get cease and desists, like many. It’s not like – it’s a very trigger-happy bunch. I mean one of my co-authors on the paper, we’re doing a systematic review of conversion practices prevalence. We published our protocol; we’re currently getting sued by Joseph Nicolosi Jr. in the U.S. –

Julia: No way.

Florence: – you know, who holds the trademark for reparative therapy and whose father is like the single most famous conversion therapist in like the history of the U.S. Yeah, we’re talking really trigger-happy people in terms of lawsuits.

Julia: Do you have like an example here of best practices to ensure that survivors if actually some cases go in front of judges because as you say it might happen that actually there will be no enforcement of the law, but if it happens, yeah, how do you think we can make sure that they feel safe, they feel empowered during this very difficult process, that they feel respected? I mean I know it’s a hard question, but do you have, yeah, some examples of …?

Florence: Yeah. I mean I think one of the best thing that – I think like one of the best thing that these laws do, it means that if you like go to court you don’t like actually have to prove that it’s medical malpractice to engage in conversion practices. Which I think is like quite a beneficial side of it because it does cut a very re-traumatizing part of the process. In terms of best practices, like a lot of it is best practices around trauma and around, you know, working with LBTQ+ people.

And in terms of trans people, like pronouns, misgendering and tropes and stereotypes are still a huge issue. And especially for trans women being perceived as, you know, aggressive, unreliable is a huge a trope and when you’re working with people who have trauma then you have to expect trauma responses. You know, trauma responses are things that constantly get dismissed and used against survivors in the legal system.

Julia: Were survivors included in the drafting process, did they have a chance to have a voice? Do you know if their views and their experience was asked because I mean it’s not only about criminalizing it, it’s also about providing some education about that, also making sure that they have access, survivors have access to holistic services including for mental health? So yeah, were they included, do you know?

Florence: Now we’re, you know, throwing this back again to the feds and this time maybe the feds are going to take it more seriously because, you know, it’s our second – well I guess it’s our third kick at the can. Well, let’s set aside the counting of how many kicks of the can it was and focus on the fact that they get a kick at the can now, you know, and so that’s an opportunity to bring that perspective to – with the government.

And my fear is going to be that again what they’ll do is that they’ll talk to a couple of people, not necessarily the people who have the creative ideas because the people who have the positions of power tend to be a little bit more set in their ways. Which is not to say they don’t have good ideas, but that the ideas are not necessarily going to be out there in terms of originality and are not necessarily going to be very heterogenous. It’s going to capture a relatively narrower scope of what the range of possibilities is.

But if they don’t do that, if they, you know, consult wide, there would be an opportunity to actually bring these broader perspectives. To not only talk about, you know, feminist campaigners who have been doing this legal work around [that? 00:18:59] for years, who are brilliant thinkers but, you know, what about talking to an association for – that mitigate for the rights of people who use drugs.

What about talking to a feminist association that represent women of colour and represent black women and represent Indigenous women. What about, you know, Indigenous and black organizations are fighting against over-incarceration and, you know, LGBT groups who are also oftentimes groups that disproportionately use drugs. And look at, you know, all the brilliant people with very, very nuanced views that we have all around and are just like waiting to get asked. I mean I’m saying waiting to get asked, we’re all burned out.

But setting that aside, like there’s a lot of really brilliant people out there who never get asked by the government for shit because they’re considered too “radical” but I mean that radical people, that’s the people we need right now. And so that’s the first angle. You know, at this stage that’s where we go. And a more intermediate-like kind of moderate-term we need to like, you know, actually start taking intersectionality seriously in courts and move towards that through the hard work of doing litigation and that’s where I want, you know, organizations that do these lawsuits.

You know, the CCLA, the Egales and the LEAFs of the world to actually take up intersectional cases and like deliberately intersectional cases and go to court and say, “Hey, this is not a single angle issue, but a civil injustice and you need to do something about this. And we’re going to, you know, stop picking cases that are going to be, you know, predigested for you. We’re going to stop taking all of the like easiest fact patterns where you don’t have to engage with intersectionality and actually like deliberately bring you intersectional cases because that’s what we need.”

Like that’s the sensibility that we need in Canadian law because like that’s always the issue with impact litigation is that you pick – you know, you pick the plaintiff that’s going to work out the best in terms of the outcome of this particular case which oftentimes is somebody you, you know, think is going to be the most – you know, politics or respectability, going to look the most respectable and going to avoid complicating anything for the court. That presents a very singular one strain narrative.

But the long-term cost of doing that is quite high because we’re not building that capacity of the legal system to handle the more difficult issues and as we face one easier and easier issues because, you know, some of the – sorry. As we face harder and harder issues because we’ve done some of the easier ones, then we’re kind of screwed.

But then also, you know, people who are pushing back against social justice are complexifying their narrative in a way that means that even what is considered to be a simple narrative is now being recast as a difficult one.

And we’ve seen that with the Supreme Court in the United States with the upcoming, you know, evisceration, in fact straight up overturning of Roe v. Wade. And the fact that we have, you know, people like Amy Coney Barrett that’s importing this narrative of, you know, there not being enough supply of kids for adoption. Which of course means, you know, white kids who were separated like at birth because if you look at the foster care system it’s definitely not, you know, a lack of kids in the foster system, it’s a lack of this like one very narrow, narrow set of kids that are considered desirable by these families.

So there’s that and then you also have like Clarence Thomas who are framing abortion as a form of eugenics and as anti-black because disproportionately abortions are sought out by black women, other women of colour. And so they’re reframing their own arguments in these kind of like justice, like social justice terms even though you won’t find more conservative than Thomas on the court – well alongside Alito.

But, you know, so conservatives are finding ways to complexify the narrative and now that we’re, you know, decades and decades into our jurisprudence and have developed it around easy cases, now faced with these cases we don’t necessarily know how to handle them and we don’t know how to convince the courts that they should handle it our way.

Julia: Florence continues to advocate for an intersectional approach and improve uptake of science by the courts in their decision-making process and within the legal system generally. For more information visit florenceashley.com and cba.org. Thanks for listening and look back here for new episodes of The Every Lawyer. [French 00:25:14].

Outro: This is The Every Lawyer presented by the Canadian Bar Association.

Florence: We’re working with the system not because we believe in the system, not because the system will liberate us or liberate anyone at all but because the system is one of the ways in which we can create a small shelter of temporary reprieve from the rain for the people.