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  • Writer's pictureThe Moot Times UCalgary Law

CBA President Calls to “Defend and Protect” Trans and Non-Binary Population

By Athina Pantazopoulos

On September 7th, Steeves Bujold accepted the Canadian Bar Association’s presidential Chain of Office and became the 94th President of the CBA. In a speech outlining his priorities for the 2022-2023 year, Bujold made several decisive calls to action and ended his 21-minute speech by urging Bar Association leaders and members to “continue to be, or to become an ally of the trans and non-binary community”.

Bujold has made a commitment to promote diversity in the legal community as one of his two main priorities for his presidential term. As a part of this commitment, he took time to outline some of the specific challenges and inequalities faced by the trans and non-binary community in Canada. In citing a Canada-wide 2015 survey of Trans Youth Health, Bujold emphasized the high levels of discrimination, serious mental health crises, and abuse faced by trans and non-binary youth.

Bujold places the CBA in a position to address these inequalities, saying, “I believe that as leaders of the Canadian legal community, we have a duty, a sacred duty, to defend and protect the rights of the most disadvantaged people in our society”.

The response of the legal community has, in part, been left in each of our hands as we decide whether to answer Bujold’s call.

What is Happening in the Legal Community?

The legal community is already taking some steps to address the discrimination and inequality faced by trans and non-binary Canadians in the legal system.

The first step to addressing any inequality is research and understanding, and the Department of Justice has begun to take these steps. Earlier in 2022, the DOJ published a research report titled “A Qualitative Look at Serious Legal Problems: Trans, Two-Spirit, and Non-Binary People in Canada”, which identified the key challenges faced by the trans, two-spirit, and non-binary community. The report found that while legal protections for trans and non-binary individuals are established in human rights legislation, there are a number of barriers that still exist to prevent or discourage access to meaningful legal protection that span multiple legal and administrative systems. Some of the barriers identified included state violence, mistreatment by authorities and actors within the legal system, and complex legal statuses that place many trans and non-binary people in direct conflict with the law.

More research is undoubtedly needed to better understand how to address these problems, and incoming CBA president Bujold has made one of his first acts in his new role to propose the creation of a new CBA advisory group on “Inclusion and Access to Justice for Trans, Non-binary and Gender Diverse People” to the CBA national board.

Even with the little research that is available, steps are being taken by courts and individual lawyers to address some of the barriers to trans participation in the legal system that are widely known and recognized. One these known barriers is the persistent misidentification (in both name and gender) of trans individuals.

The BC courts have demonstrated a commitment to properly identifying and gendering all people in their courtrooms, making court a safer and more welcoming place for the trans community. Trans and non-binary individuals are often misgendered and “deadnamed” in the legal system, making legal processes stressful and traumatic. A number of organizations are working to bring awareness to these problems in other jurisdictions in Canada, including at the Supreme Court level, and hopefully more commitments to improving court settings for trans and non-binary people will be forthcoming.

How Can Law Students Show Allyship?

As a law student, you may feel that there is very little that you can do to be an ally of the trans and non-binary community. According to the stats collected by the University of Calgary Faculty of Law, 1% of the class of 2023, 1% of the class of 2024, and 4% of the class of 2025 are non-binary students. The trans and non-binary community is all around us, and most recent census data suggests that the majority of trans and non binary Canadians are between 15-34 years old (which is fairly close to the average age to attend law school).

There are many ways that law students can support trans and non-binary populations both within the law school and beyond.

Create Trans Inclusive Space

There are many little things that students can do throughout their day during their time in law school and in their own practice to show allyship to the trans and non-binary community by creating and fostering safe and inclusive spaces.

The Law Society of Alberta has produced a guide on how to “Foster a Healthy Workplace for the LGBTQ Community”. Many of the recommendations can be easily applied to your law student experience, including:

  • Take stock and address your own internal biases.

  • Use gender-inclusive language in your speech and writing.

  • Make it clear that transphobic actions and sentiments are not acceptable.

  • Proactively address stereotypes and misconceptions.

If you are not familiar with gender-inclusive language, the British Columbia Law Institute has published a free resource guide, “Gender Diversity in Legal Writing: Pronouns, Honorifics, and Gender-Inclusive Techniques”, which offers excellent guidance into how to avoid exclusionary language, and properly use gender-inclusive and gender-neutral wording.

Do the Reading

While there are no course offerings at the Faculty specifically dedicated to LGBTQ2S allyship in the legal profession, that does not mean that this issue is not being discussed in legal academia.

The Canadian Bar Association’s Women Lawyers Forum has published a list of resources to guide lawyers in educating themselves on gender identities and gender expression, which is an important first step to enacting meaningful trans and non-binary allyship. CBA president Steeves Bujold has also asked the CBA national board to green light a new advisory group for Inclusion and Access to Justice for Trans, Non-Binary and Gender Diverse People, so we may see much more research and resources coming from the CBA in the coming years.

If you are looking to go a step further, the Bennett Jones Law Library has a number of legal journals and databases that include articles on trans and non-binary legal issues. Legal scholars are writing about the challenges facing trans Canadians in the legal system and methods that lawyers can take to become effective advocates for trans clients.

Get Involved

The legal problems facing trans and non-binary people in Canada are not limited to human rights complaints. According to the 2018 study “TRANSforming Justice: Trans Legal Needs Assessment Ontario”, trans and non-binary respondents reported far higher rates of justiciable legal problems than the average adult Canadian in many significant areas of law, most notably discrimination (43% vs 5%), medical (25% vs 3%), and housing (22% vs 3%).

There are a number of pro bono opportunities at the Faulty of Law that allow students to support the trans and non-binary community both directly indirectly through research, advocacy, and assistance.

Trans specific services, such as the Trans ID Clinic – This project allows students to assist members of the trans and non-binary community fill out and file applications to change names and gender markers on government-issued identification.

Having government-issued identification that properly reflects a person’s name and pronouns grants affirmation, independence, and security to trans and non-binary individuals. Students volunteering at the Trans ID Clinic can make a significant, positive impact in the trans and non-binary community by assisting with the frustrating, and often emotional, process of applying to change one’s government identification.

Direct legal assistance projects, such as Student Legal Assistance (SLA) and the Human Rights Project – These projects allow students to represent clients in a number of civil, criminal, and human rights matters under the supervision of qualified lawyers.

While these programs are not specifically targeted at trans and non-binary clients, student volunteers can demonstrate allyship by creating trans-inclusive environments in their pro bono work. Developing trans-inclusive practices even while not actively representing trans clients creates a legal system that is more welcoming to members of the trans and non-binary community.

Legal education projects, such as the Hearsay Podcast, the Consent Project, and the French Youth Law Project – Pro Bono Students Canada runs a number of legal education projects with the aim of improving access to information about Canadian law and the Canadian legal system. While these projects are not specifically targeted at the trans and non-binary community, students direct their own research and have the opportunity to include trans and non-binary perspectives and gender inclusive language into their research.

Learning from the trans and non-binary community and considering their perspectives allows students to better understand the challenges these communities face and allows for more effective allyship and even advocacy.

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