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One Year After CBA Calls to “Defend and Protect” Trans People, Where Are We Now?

By Athina Pantazopoulos

One year ago, I reported on then CBA president Steeves Bujold’s call to Bar Association leaders and members to “continue to be, or to become an ally of the trans and non-binary community”. And while perhaps not as much clear and decisive action has been taken as some of us may have hoped, given the multitude of active and violent threats facing the trans and non-binary community, the CBA has not sat idle in the past year. The work of information gathering and strategic development has begun.

Early into Bujold’s office, the Canadian Bar Association’s National Access to Justice Subcommittee released a 54-page report in partnership with the HIV & AIDS Legal Clinic Ontario (HALCO) and the TRANSforming JUSTICE Research Team titled Access to Justice for Trans People. This report republishes and expands on the findings of TRANSforming Justice’s 2018 report with the renewed purpose of situating the specific access to justice challenges faced by trans people within the CBA’s broader Equal Justice initiative. This research plays an important role in validating and reinforcing what the trans community has known for decades: the Canadian legal system does not adequately serve the trans community. [This conclusion is confirmed in Justice Trans’ May 2023 2STNBGN Legal needs Assessment and Coverdale Courtwork Society’s 2023 study on the Criminalization of 2SLGBTQIA+ Canadians].

The report illustrates in clear detail that:

  1. Trans individuals, in general, experience a disproportionately high number of justiciable legal problems compared to the general population in Canada.

  2. The legal system and the many human actors within it explicitly and implicitly discriminate against trans individuals.

  3. Both trans individuals and lawyers lack information about trans-specific legal issues.

  4. These issues must be addressed by through large-scale systematic reform that necessarily involves the cooperation of federal, provincial, and territorial governments.

The report concludes with 40 specific recommendations to address the significant and pervasive barriers and burdens encountered by trans people navigating the legal system.

As a response to these recommendations, Bujold established the “Presidential Advisory Group on Inclusion of and Access to Justice for Trans, Non-Binary and Gender-Diverse People.” The intention of this group was to advise the CBA on initiatives, programs, and policies, such as those included in the 2022 report, intended to address the unequal access to justice faced by trans individuals in Canada. So far, this advisory group has not released their final recommendations, but these are expected in late 2023.

However, information gathering is only the first step, as the 2022 report states: “It is intended as a starting point […] not a conclusion.”

The CBA has been involved in a number of public education initiatives in the past year. In February 2023, members were invited to attend a one-day online symposium titled “LGBTQ2S+ Rights in Canada: The Past, The Present, The Future” (where uCalgary’s own Jonathan Griffith presented in his role as Early Intervention Counsel with the Law Society of Alberta). In May 2023, the CBA published an updated Gender Identity Resource Guide, which better reflects some of the gaps in information identified in the 2022 Study.

Additionally, the CBA has made a number of submissions to the Department of Justice and Minister for Women and Gender Equality and Youth advocating for systematic reforms to support trans people. In particular, they urged the federal government to re-introduce the legislative reforms in the formerly unsuccessful Bill C-36, Criminal Code and Canadian Human Rights Act amendments on hate propaganda, hate crimes and hate speech to address the alarming rise in violent online hate speech directed at the trans community.

Ultimately, the CBA and the legal community as a whole are in the very early stages of making any meaningful impact, and we must be mindful to not lose momentum in the face of newer or more publicized concerns. With the latest change in leadership at the CBA happening in September, it is heartening to see incoming CBA President, John Stefaniuk, confirm the need to “redouble our efforts in the fight for equality” in the face of mounting anti-2SLGBTQI+ rhetoric and condemn the use of the notwithstanding clause to continue the implementation of the Parental Inclusion and Consent Policy in Saskatchewan. Systemic change on the scale needed to create equitable access will take time, effort, and dedication, and it is essential that all members of the legal community remain conscious and prepared to “defend and protect” trans and non-binary individuals.

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