The Limits of Law and Rights-Based Approaches to Trans Liberation in Canada: Gender-Affirming Healthcare and the Carceral State


Lucas Marqus, Lincoln Alexander School of Law - Toronto Metropolitan University

This presentation considers the contemporary gap between transgender rights discourse in Canada and transgender liberation. Amid growing concern in both Canada and the United States about the status of transgender rights, national civil liberties organizations have mounted various rights-based legal challenges on behalf of transgender people. In Canada, the Canadian Civil Liberties Association (“CCLA”) has challenged provincial bills preventing students under 16 from using their preferred pronouns in school without the permission of their parents because the bills violate the Canadian Charter of Rights of Freedoms (CCLA, 2023). In the United States, the American Civil Liberties Union (“ACLU”) is tracking a record number of bills that attack 2SLGBTQ+ rights, particularly bills related to gender-affirming healthcare for transgender youth (ACLU, 2023). I will show that while rights-based legal approaches and victories appear to be a panacea for transgender people, a lack of restriction on transgender legal rights ultimately is not equivalent to transgender liberation. Drawing from critical legal studies, critical race theory, and empirical research on transgender healthcare and prison populations in Canada, I use two Canadian case studies to demonstrate the inadequacy of an exclusively or predominantly rights-based approach to trans liberation. The first is access to gender-affirming healthcare for transgender and gender-diverse minors in Ontario, which is not legally prohibited in the province. The second is the policy of Correctional Services Canada with respect to transgender inmates, which includes the right to receive gender-affirming healthcare and the right to choose whether to be placed in men’s or women’s prisons. Regarding the first case study - access to gender-affirming healthcare for minors in Ontario - no express legal prohibitions against access to gender-affirming healthcare for minors exist in Ontario. Further, Canadian courts have consistently held in favour of youth accessing care, typically citing youth autonomy rights and the overwhelming consensus among medical organizations regarding the benefits of gender-affirming care for trans youth. In practice, however, access to gender-affirming care is severely restricted – limiting youth autonomy and putting trans youth at significant risk for adverse mental health outcomes and suicide. Indeed, the period between when trans youth intend to start making physiological changes to their appearance and when they can access gender-affirming care is when they are most at risk for depression and suicide (Bauer et al., 2013). The second case study is the interaction of transgender people and the Canadian carceral state. While Correctional Services Ontario – for instance – states that it “ensures that all inmates are treated with the same dignity and respect regardless of their gender expression or gender identity” (Ministry of the Solicitor General, 2021), transgender inmates face disproportionate violence in prisons (Lourenco, 2022). Further, transgender inmates in Canada are disproportionately Indigenous in comparison with the cisgender prison population, only exacerbating the crisis of Indigenous mass incarceration in Canada (Correctional Service Canada, 2022). Transgender inmates also disproportionately report having experienced trauma or violence in their past in comparison to the cisgender prison population (Correctional Service Canada, 2022). The stark divide between the lack of legal restriction and the health and security outcomes of transgender populations in Canada represents the inadequacy of an exclusively legal or rights-based approach to trans liberation. As social movements organize to counteract anti-2SLGBTQ+ coalitions, the value of an exclusively, or even largely, rights-based approach should be re-considered.

This paper will be presented at the following session: