Serious Legal Problems faced by Lesbian, Gay, Bisexual, and Other Sexual-Minority People in Western Canada: A Qualitative Study

Conclusions

The findings suggest that sexual- and gender-minority individuals face limited access to adequate legal resources and encounter unique barriers to justice. The data that have been illuminated by this project indicate that these barriers result in sexual- and gender-minority individuals having limited self-determination in and access to Canadian legal systems, which consequently contributes to their disenfranchisement. Access to justice is a complex issue and further investigation is needed to explore all barriers to access. Our findings indicate that access to justice for sexual-minority people will be enhanced by efforts to:

  1. provide access to legal representation by professionals who are sexual- and gender-minority people themselves and/or who understand the unique challenges facing diverse sexual- and gender-minority communities;
  2. uplift community and informal support systems for individuals who lack adequate access to legal resources;
  3. provide access to holistic support services, including mental health support services, for sexual- and gender-minority people who have become engaged in legal processes;
  4. address the financial burden and barriers associated with securing legal counsel, particularly for those with limited resources;
  5. acknowledge and uproot the legal system’s colonial impacts on the lives of Indigenous Two-Spirit and other sexual- or gender-minority people;
  6. deconstruct systemic, cultural, and structural barriers, such as homophobia, transphobia, and racism that ultimately produce many legal problems and the disenfranchisement of sexual- and gender-minority people;
  7. explore decarceral and/or restorative justice approaches for sexual- and gender-minority people who have become engaged in legal processes;
  8. provide resources for legal professionals (e.g., lawyers, judges, paralegals) on the experiences of sexual- and gender-minority communities, including topics on pronoun use, HIV stigma, transphobia, homophobia, cisheterosexism, settler colonialism, and structural racism;
  9. produce resources specifically for sexual- and gender-minority people that make complex legal processes more transparent for those who need to navigate this system. These resources should include information on sexual- and gender-minority people’s rights when engaging legal systems and avenues for redress if they feel that their rights have been transgressed;
  10. provide resources on the human rights bodies in each province, the issues they cover, how to access them, and what outcomes can be sought through them.

Additionally, sexual-minority people continue to identify and experience legal systems as homophobic, transphobic, and racist, which in turn undermines trust in the legal system among these communities and has led to a sense of disenchantment with the legal system more broadly. Improving access and confidence in the legal system to protect and support the lives of all sexual- and gender-minority people will require that past harms experienced within this system be acknowledged and actively addressed.

As our data also show, sexual- and gender-minority people who have become engaged in legal processes can also face increased visibility, both within sexual- and gender-minority communities and their broader communities. This increased visibility can compound the stigma they already face as sexual- and gender-minority people, impacting their professional, family, or social lives, and may act as an additional deterrent to accessing the legal system.

Limitations

This study has a number of limitations. The exploratory nature of the data collected through this study cannot capture the full breadth or nuance of sexual- and gender-minority people’s experiences with the legal system, as a full qualitative study could have been conducted on any one area of the law that has been briefly discussed in this report. The data contained in this report thus provide a broad sense of various legal issues among sexual-minority people that can serve as a foundation for more focused research into specific legal domains in the future.

The study sample has important limitations on the applicability of findings to all sexual-minority people. Although approximately a quarter of our participants were Indigenous, which provided us with rich data on the impacts of settler colonialism on access to justice, most of the remainder of our sample was white and we were unable to interview any participants who identified as Black. This limits our ability to speak to how anti-Black racism shapes legal problems and interactions with the legal system. Future intersectional research must explore the unique experiences of queer and trans Black, Indigenous, and people of colour (QTBIPOC) within the justice system and to create a greater understanding of the way complex interactions of power and privilege differentials based on gender, race, culture, class, religion, etc. impacts the legal problems faced by sexual- and gender-minority communities. Continued research is critical in determining the types of systemic changes necessary to improve sexual- and gender-minority people’s access to legal resources and address social inequalities and discrimination faced by sexual- and gender-minority people throughout their lives.

Additionally, all study participants were from British Columbia, Alberta, and Manitoba. We had no participants from Saskatchewan, which limits our ability to speak to sexual- and gender-minority people’s experiences in that province. Since access to legal processes, such as human rights bodies, varies across provinces, additional work should be conducted to explore how access to justice for sexual-minority people varies across regions and between rural and urban areas.

Finally, while some of our participants had experience working within the legal system, we did not specifically seek to interview legal professionals who work with sexual-minority community members. Sexual- and gender-minority legal professionals – including lawyers, paralegals, frontline workers, case managers, settlement workers, court interpreters, and prison system staff – likely possess a complementary “insider’s” view of how the legal system works for sexual-minority people and should be engaged in future research.

Overall, our data demonstrate that despite advancements in legal protections, which appear to make legal systems more equitable for sexual-minority people in Canada, sexual-minority people continue to face disproportionate and systemic barriers in access to justice across a range of legal domains. Additional community-based research that foregrounds the voices of community members and restores agency to participants is needed to explore the continued impacts of these barriers on sexual- and gender-minority people’s lives. Ultimately, improving access to justice for sexual-minority people will require meaningful deconstruction of systemic barriers such as heterosexism, homophobia, transphobia, racism, and settler colonialism, in addition to formal legal protections.