The following is an edited transcription of the keynote presentation at the SSHRC-funded conference On the Margins of Trans Legal Change. This public conference was hosted by McGill University’s Faculty of Law and Institute for Gender, Sexuality and Feminist Studies, in partnership with Thompson Rivers University’s Faculty of Law. The keynote presentation was a conversation between Dr. Viviane Namaste and Dalia Tourki, where they asked each other questions.

Le texte qui suit est une transcription révisée du discours principal présenté au colloque On the Margins of Trans Legal Change (En marge des changements juridiques à l’égard des droits des personnes trans) financé par le Conseil de recherches en sciences humaines du Canada (CRSH). Cette conférence publique a été organisée par la faculté de droit et l’Institut Genre, sexualité et féminisme de l’Université McGill, en partenariat avec la faculté de droit de l’université Thompson Rivers. La prestation principale était une conversation entre Viviane Namaste, Ph. D., et Dalia Tourki où les deux intervenantes se questionnaient mutuellement.

This article draws on our qualitative study of trans unemployment to introduce considerations of the relationship between trans unemployment and the demands for workers across economic sectors to perform affective labour as integral to industrial service relations. Affective dimensions of labour are often unspoken and unconscious, rendering it challenging for anti-discrimination laws to accommodate. We demonstrate the ways that recent cases grounded on unconscious bias open spaces for further consideration of the ways that trans employment discrimination rooted in demands for affective labour can be dealt with by anti-discrimination law.

This paper analyses policy documents and interviews conducted in federal prisons to trace the emergence and early effects of Canada’s recent wave of groundbreaking trans correctional reforms. I show that prison authorities were forced to adopt more inclusive policies due to the legal, financial, and reputational risks generated by new trans rights protections. Yet, by examining what rights both enabled and foreclosed once they materialized in the everyday of prison life, I argue that reform’s implementation was fraught with ambivalence. Namely, this ambivalence was felt by the correctional administrators tasked with translating nebulous policy principles into concrete guidelines; by staff, whose front-line duty involved weighing rights against risks; and by trans prisoners, who grappled with how to balance their new entitlements with risks and uncertainties. What trans correctional reforms reveal, then, is that rights and risks are caught in an ambivalent and co-constitutive relationship in Canada’s regime of prison governance.

Between 2002 and 2017, Canadian lawmakers sought to redress the pervasive levels of discrimination, harassment, and violence experienced by transgender and/or non-binary people by adding the terms “gender identity” and/or “gender expression” to federal, provincial, and territorial human rights instruments. This paper tracks the complex, iterative ways in which antidiscrimination protections are brought to life outside courts and tribunals. Using Ontario’s publicly-funded English language secular school boards as a case study, we examine how the introduction of explicit human rights protections on the basis of “gender identity” and “gender expression” in 2012 worked to produce a series of responses across the education sector. Given that “gender identity” and “gender expression” remain legally undefined terms in the Ontario Human Rights Code, and only provisionally defined by Ontario Human Rights Commission (OHRC) policy, we argue that school boards constitute important actors engaged in constructing the meanings of these terms in policy and practice. In decentering courts and tribunals in our analysis, we aim to uncover the everyday practices of parallel norm-making taking place in the education context. These everyday practices shape how we collectively understand the meaning of “gender identity” and “gender expression.” By carefully tracking these post-legislative developments, which rarely make their way into reported decisions, we suggest that human rights law reforms might open up space for the emergence of norms that allow people to do gender in a variety of ways.

This paper explores results from a survey of fifty-four trans students in two major universities in Ontario that sought to evaluate participants’ access to on-campus facilities. Although both universities have made efforts to accommodate trans students in their use of washrooms, locker rooms, and student housing, the numerous barriers that participants encountered signals stark gaps in access. The results invite a critical reflection of three accommodation models that may be undertaken to address these barriers. By addressing each model’s benefits and limitations, wherein the journey towards trans inclusion may generate a new set of exclusions, this paper complicates the notion of increasing access. This paper concludes by offering recommendations across these three models but concedes that challenges may persist until better facilities are reimagined and redesigned going forward.

Human rights instruments are but one of many legal advocacy tools used by trans people. Recent legal scholarship emphasizes that human rights laws are not sufficient to address legal challenges facing trans people, particularly intersectional and systemic barriers. This article looks to Canadian trans case law outside of human rights law to reveal the many instances in which trans people’s fight for legal recognition and redress occur outside of the human rights arena. It focuses on trans case law in three areas: family law, the use of name and gender in court, and access to social benefits. Canadian trans jurisprudence illustrates that not only are trans legal strategies outside of human rights plentiful and effective, they are also imperative. An agile and pragmatic approach to trans rights is necessary, particularly when minority rights are under threat, and for trans people on the margins of trans law reforms.

Le langage du droit crée le sujet transgenre en tissant une conception légale du sexe ou genre, une conception qui a longtemps exclut les personnes trans. L’autaire propose d’analyser le langage du genre en droit québécois pour en faire ressortir deux phases conceptuelles. À travers ces deux modèles – l’un médical et l’un minoritaire – le droit québécois relate l’existence des personnes trans en premier lieu comme un moment essentiellement transitoire et liminal entre deux états d’être binaires, alors que le modèle minoritaire y voit plutôt une réalité d’exception, se définissant par son opposition au cadre social majoritaire. Ces deux visions s’enchaînent historiquement et révèlent l’évolution récente de la conception négative des personnes trans comme minorité qui ressort des avancées législatives récentes en droit québécois. L’autaire conclut que, malgré les avancées, il reste plus à faire pour réellement inclure les personnes trans comme sujets habituels de droit.

In the 1960s and 1970s, psychologists at the University of California, Los Angeles, operated two behaviour modification programs: one aiming to eliminate “feminine” behaviours in male-bodied children (“conversion therapy”), and one targeting autistic children’s so-called problem behaviours (applied behavioural analysis or ABA). The head of the autism program referred to his work as “building a person.” Decades later in Ontario, a radically incommensurate legal context sees conversion therapy banned while ABA receives millions of funding dollars. Drawing on legislation, case law, media, and clinical literature, I argue that the process of trans communities wresting themselves out from under conversion therapy involved discursively shifting from having a condition to being human—a process of “building a person”—still incomplete for autistic communities. While legal reforms protect some trans youth from harmful therapies, this does not extend to autistic trans youth, leading us to question at whose expense a rights-bearing trans person was built.

Literature on the topic of trans older adults has documented a few anecdotal cases in which some trans people living with dementia forgot they transitioned and reidentified with their sex assigned at birth (“detransition”). Trans communities and their allies have encouraged trans people to engage in end-of-life planning, including the preparation of legal documents that state their wishes regarding gender identity and expression in the event of “incapacity” caused by dementia. While useful, we contend that end-of-life planning is often implicitly based on cisnormative and cognonormative (normative system based on cognitive abilities) assumptions. Such planning is founded on a stable notion of gender identity throughout the life course (“post-transition”) and assumes that the pre-dementia self is better equipped to make decisions than the “demented” self. We conclude by encouraging, based on an intersectional, trans-affirmative, crip-positive, and age-positive approach, respect for the agency of trans people with dementia.