Pride and Prejudice: Battling Systemic Barriers to LGBTQIA2+ People’s Access To The Legal System

With Pride Month officially upon us, it’s the perfect time to reflect on all the progress members of the LGBTQIA2+ community have made over the past few decades. LGBTQIA2+ people and their allies have had great success using activism and advocacy to work towards repealing many regressive laws that criminalized sexuality and passing new laws that protect the rights of sexual minorities. Canada now routinely ranks at or near the top of lists of the best countries in the world for LGBTQIA2+ people to visit or live.

Yet, amid the celebrations and liberating experiences to be found in the safe spaces Pride events create, we must also recognize how much more there is to do. Despite the impressive progress made, LGBTQIA2+ people continue to experience systemic barriers to participating within society to the same extent as heterosexual and cisgender individuals.

In this blog post, I explore systemic barriers to LGBTQIA2+ people within the legal system. I provide examples of areas where discrimination continues to be evident and explain the frustration and inequality LGBTQIA2+ people experience as they seek justice from the legal system. Although I conclude with some examples of positive change within the legal system, it is imperative LGBTQIA2+ people and their allies do not become complacent or see progress as inevitable. We need only look to our neighbours to the south to see how vicious campaigns against sexual minorities and non-cisgender people are creating a climate of fear, promoting violence and rolling back hard-won protections under the law.

How does discrimination based on sexuality and gender lead to interactions with the legal system?

For some LGBTQIA2+ people, the spaces in which they live, work, and play are generally positive, accepting and affirming - at least on the surface. While explicitly homophobic or transphobic acts against them by individuals may be rare, lack of representation, ignorance or implicit bias within institutions can still create situations where they are disadvantaged.

For others, particularly LGBTQIA2+ people who present as gender non-conforming or who belong to one or more other marginalized groups (female-presenting individuals, member of the BIPOC community, Indigenous people, persons with disabilities, etc.), systemic barriers and outright hostility are much more apparent.

Community-based research published by the Canadian Ministry of Justice in 2021 has suggested LGBTQIA2+ people experience a variety of legal problems where their sexuality or gender identity has been a primary or otherwise significant factor in their interactions with the legal system. Moreover, members of equity-seeking groups such as LGBTQIA2+ people have been found to have statistically more legal problems than the rest of the population.

These legal problems include:

• employment or labour law (covert and overt workplace discrimination, including fear, exclusion, and mockery or explicitly homophobic or transphobic acts by both co-workers and management);
• other forms of discrimination and harassment (notably within the healthcare system);
• family law (sexuality or gender identity being used against them in divorce or custody hearings, being unable to live authentically for fear of losing access to their children, discordant identity documentation);
• immigration and refugee law (being forced to remain in unhealthy relationships due to precarious nature of status, having to present in a stereotypical manner for a refugee claim based on sexuality or gender to be accepted);
• human rights law (uncertainty with how to use human rights tribunals to protect their rights, difficulty in getting hearing officers to understand why certain conduct is homophobic, transphobic, etc.);
• criminal law (intimate partner violence, homophobic or transphobic violence);
• interactions with the police and the prison system (lack of protection within the general prison population, having to hide sexuality or non-conforming gender identity for their own physical safety)

Researchers doing similar work focussed on the criminal justice system have noted that homelessness, unemployment and previous experience in the care system were frequently root causes that lead LGBTQIA2+ people into the criminal justice system when they were defendants.

How do systemic barriers prevent access to justice?

The authors of the Ministry of Justice study explain that these legal problems (and the challenges LGBTQIA2+ people faced accessing the legal system) were generally rooted in systemic forms of oppression, including homophobia, transphobia, racism, settler colonialism, and cisheterosexism (the societal and institutional privileging of heterosexuality, cisgender identity, and binary sex assignment as the norm).

In discussing how their sexuality and gender identity contributed to their legal problem, created a problem when accessing legal resources, or stymied their attempts to resolve their legal issues, participants in the survey noted a variety of barriers. These included:

• lack of clarity about legal systems and processes;
• financial barriers (one Ontario study has found that half of trans people are living on less than $15,000 per year);
• disproportionate burden of proof; lack of response or slow timelines;
• having to self-advocate.

Many of these barriers have been identified in other recent studies, including the Canadian BarAssociation’s jointly-authored publication Access to Justice for Trans People.

Another significant barrier for LGBTQIA2+ people seeking justice is finding safe legal representation. While lawyers and paralegals are expected to abide by the laws, including the Human Rights Code, in the provision of legal services, members of the LGBTQIA2+ community continue to experience challenges in finding lawyers and paralegals who are both competent and compassionate to the unique challenges faced by members of the LGBTQIA2+ community.

Building on successful strategies for positive change.

The Ministry of Justice study identified factors which contributed to the greatest opportunity of a successful legal outcome for participants. These included:

• ability to access resources and navigate systemic barriers;
• supports available to them at the time;
• trust in legal systems for resolving legal problems.

Unfortunately, access to resources and support continue to be limited for many people within the LGBTQIA2+ community, and negative past experiences within the legal system has caused many people to lose faith and trust in the system.

To improve access and change perceptions of the legal system for LGBTQIA2+ people, here are some steps that have been taken and/or where more work is needed:

Identifying advocates and allies within the system -

All professionals offering legal services can include clear notes on their personal and law firm websites and social pages indicating they and their firms are safe spaces for members of the LGBTQIA2+ community. All legal professionals can educate themselves on the systemic barriers LGBTQIA2+ people face when accessing justice so as to become better advocates. All legal professionals can take diversity, equality, and inclusion training or education, both so they can be better advocates for their clients and so they can be better allies to their LGBTQIA2+ colleagues and peers. Advocates, judges, and decision makers can take care when advancing the law that heteronormative and cis-gender-normative views are not promoted either in legal argument or in legal decisions. Advocates should consider assisting disadvantaged members of LGBTQIA2+ in accessing justice as part of their pro bono work. Advocates should be brave and continue to promote both the rights of LGBTQIA2+ community members and continue working towards removing systemic barriers in access to justice where possible.

Publicizing and/or funding work supports and community supports -

Public and private unions often take on a pioneering leadership role in advocating on behalf of their members and insisting on training programs that educate both management and employees about the barriers faced by equity- seeking groups. To that end, LGBTQIA2+ community groups often provide a range of important services, including legal clinics and keeping the community informed on legal matters. Drawing awareness to these resources, volunteering, or donations, can improve access.

Changing perceptions of the legal system -

Courts and administrative tribunals in several provinces have begun indicating the pronouns lawyers are to use when address counsel, clients, witnesses and others at the beginning of a proceeding. Training courses in equality, diversity and inclusion matters for lawyers and police officers are also now more common. While these changes are positive, deeply-rooted stereotyping is still present in courts, and minority populations continue to perceive or have experienced bias by police. For example, research by Transpulse found almost one-quarter of trans people report having been harassed by police. LGBTQIA2+ people who distrust the legal system should not be expected to gain or regain trust quickly. Instead, we must acknowledge the enormous work ahead of us in addition to highlighting the positive changes that have begun.

Tools for self-advocacy -

Until such time as LGBTQIA2+ advocates, allies, and other institutional actors are able to shift the perception of distrust among marginalized people that leads to reluctance to reach out for assistance, creating simplified tools for self-advocacy may encourage people to take the critical first few steps for justice that could bring them into the system. For example, providing how-to guides and summaries of successful outcomes from human rights complaints may encourage LGBTQIA2+ people to feel comfortable seeking justice directly when fear of dealing with police or lawyers may otherwise dissuade them from doing anything to right a wrong.

Proud of our past activism, ready for future campaigns.

My primary area of legal practice is sexual assault and sexual abuse.

Sexual abuse and sexual assault are acts of violence against an individual’s autonomy. Many of my clients first meet me at a time in their life when they feel they have lost a sense of control, when they lack trust in people, and when they are managing the task of recovering physically, emotionally and mentally from trauma.

My goal is to help my clients access justice and obtain a sense of closure. Whether we are able to secure financial compensation for the damage another person or people caused, prevent a perpetrator from hurting someone else by preventing them from working in a field where the abuse or assaults occurred, or simply supporting a survivor as they rediscover their strength and regain control of their lives, it is my privilege to help survivors on their justice journey.

It’s well-understood that a perpetrator’s abusive actions or assault can harm a person’s sense of autonomy and control. This loss of control can be made all the worse for members of the LGBTQIA2+ community who experience other forms of trauma, affronts to their dignity, and loss of control in their lives, simply for being who they are. When a survivor perceives there is ignorance of or indifference to systemic barriers to them in the legal system, the very people and institutions meant to assist them can re-traumatize them in new and unexpected ways, rather than supporting them in healing. In my practice, I relentlessly challenge the stereotypes and barriers, ensuring that my clients search for justice is realized.

Ending systemic discrimination - both explicit and implicit - in our legal system is not a goal that will be realized quickly. But the LGBTQIA2+ community has never been known to stop its journey when the road ahead looks to be long.

Through hard work, determination, and a refusal to accept injustice as a fact of life, I believe there will is a bright future ahead of us. Pride grew out of that brick thrown at the Stonewall Riots. In our practice, we work hard to remove every brick from the walls that keep us, our community, my community, from getting justice.

If you or a loved one is a member of the LGBTQIA2+ community who have experienced sexual abuse, sexual assault, or a serious personal injury, Jellinek Ellis Gluckstein Lawyers is here for you. Contact us today for your no cost, no obligation consultation.