Introduction

Lesbian, gay, and bisexual (LGB) communities in Canada face challenges in addressing justice issues in Canada, both civilly and criminally. Although only 3 percent of Canadians identify as LGB, over 11 percent of those assisted by Legal Aid Ontario in 2015–16 identified as part of the 2SLGBTQI+Footnote 1 (lesbian, gay, bisexual, transgender, queer or questioning, intersex, and Two-Spirit) community. The legal experiences of this community vary widely, depending on what services they are trying to access.

Refugee and immigrant process

The process for 2SLGBTQI+ people to immigrate or meet refugee determination requirements can be burdensome. It often requires intimate details about their relationships, for example forcing them to recall traumatic experiences as “evidence” of their sexuality and/or gender identity to fulfil a Western understanding of 2SLGTQI+ experiences. Also, 2SLGTQI+ asylum seekers often face barriers to accessing safe environments and social support services (Hall & Sajnani 2015).

Domestic violence and intimate partner violence

Members of the 2SLGBTQI+ community experience exceptionally high sexual and domestic/intimate partner violence (D/IPV). Despite the elevated rates of occurrence, 2SLGBTQI+ survivors of sexual violence and D/IPV are less likely than cisgender and heterosexual survivors to report incidents to the authorities or access D/IPV shelters and support services. Barriers include an extreme lack of cultural competency (Ard & Makadon 2011), stigmatization, and limited understanding of D/IPV within 2SLGBTQI+ communities (Calton, Bennett Cattaneo, & Gebhard 2015). Those who do report may face a dual harm: they may experience rape culture myths as well as homophobia, biphobia, and transphobia within the support systems, including from police, shelters, and counselling services, if they go to for help.

2SLGBTQI+ people dealing with family court system

The Ontario family court system has passed legislation, the All Families Are Equal Act⁠Footnote 2, to ensure that parents and children are treated equally under the law. However, some 2SLGBTQI+ people have complained that in actual practice, the judiciary continues to use heteronormative notions of family to inform their decisions in cases involving 2SLGBTQI+ people. As a result, 2SLGBTQI+ people report feeling that their identity has been erased, or they experience false assumptions and ignorance, which enables emotional violence and/or gender-based violence to continue during the family court process. Until recently in Ontario, the non-biological parent had to adopt their child to be recognized as a parent. In cases of adoption within the Children’s Aid Society, many queer couples have reported caseworkers who are homophobic and discriminatory because of their heterosexist assumptions and opinions about family structure (Ross, Epstein, Anderson, & Eady 2009).

Homelessness and shelter

Shelter systems and service agencies are often not inclusive when it comes to 2SLGBTQI+ users’ experiences. 2SLGBTQI+ individuals experiencing homelessness who seek support often face discrimination and inappropriate services (Ard & Makadon 2011). Homophobia, biphobia, and transphobia within the shelter system and service agencies may result in 2SLGBTQI+ individuals being denied access to services. In some cases, legitimate violence against them is ignored or dismissed (Calton, Bennett Cattaneo, & Gebhard 2015). Those who are homeless experience increased vulnerability to violence, exploitation, and criminalization. In a study examining the lived experiences of homeless, racialized 2SLGBTQI+ youth in Toronto, researchers found that participants were at a heightened risk of experiencing police violence and targeted police intervention (Cukier & Daniel 2015).

Justice system

Perhaps most troubling from an access to justice perspective, law enforcement and Canada’s Criminal Code have historically targeted 2SLGBTQI+ communities disproportionately. This systemic discrimination in criminal law is evident in legislation, such as anti-sodomy laws, like s.159 of the Criminal Code; policing practices such as carding; and, famously, the raids of bathhouses and other queer-occupied spaces. Members of the 2SLGBTQI+ community complain that police continue to discriminate against their communities, especially when members are also racialized and/or Indigenous. Some significant issues facing 2SLGBTQI+ people in Canada remain the criminalization of HIV/AIDS, sex work, and discriminatory carding. Many in the 2SLGBTQI+ community thus either see traditional legal services as an extension of that system, and/or have been discriminated against, or fear they will be if they attempt to access legal support. This is particularly true for those who live at the intersections of racialized and 2SLGBTQI+ identities.

This qualitative study complements the quantitative 2021 Canadian Legal Problems Survey (CLPS) and is intended to uncover the nuances of the 2SLGBTQI+ experience within a number of legal contexts. Listening to the voices of the community provides richer insights into the ways in which the justice system either supports or does not support their needs.