Become a Creator today!Start creating today - Share your story with the world!
Start for free
00:00:00
00:00:01
Law, Gender and Social Change with Adrienne Smith
25 Plays2 months ago
In this episode of Gender in Focus, Kai sits down with Adrienne Smith (they/them), a trailblazing human rights lawyer and activist. Adrienne has spent years advocating for the legal rights of trans and non-binary individuals, working on groundbreaking cases that challenge the status quo and push for greater gender equality. From advocating for trans people’s right to safe and inclusive workplaces to fighting for equitable access to essential services, Adrienne's work is shaping a more inclusive future for trans and non-binary people.
Adrienne takes us through the intersection of law and gender, shedding light on how legal protections for trans and non-binary people are critical for creating inclusive, respectful spaces in our workplaces and communities. With clarity and warmth, they explain how small but powerful changes can have a huge impact on making our environments more welcoming for everyone. This episode is a gentle reminder that inclusivity isn’t just a feel-good idea - it’s something that can make a real difference and is, in fact, required by law. Adrienne shares why it’s not as complicated as it may seem to build environments where all people, no matter their gender identity, can feel safe and seen.
Check out all the links Adrienne mentioned below:
- BC Trans Legal Clinic (lawyer@cwhwc.com, phone: (604) 442-4352)
- CANLII.org
- adriennesmithlaw.com
___________
Want to get in touch? Contact us at podcast@transfocus.ca
Join us on social media:
LinkedIn | Instagram | TikTok | Threads | Facebook
Recommended
Transcript
Introduction to 'Gender in Focus' Podcast
00:00:03
Speaker
Hello folks, this is Gender in Focus, a podcast exploring how to create a more inclusive world for trans and non-binary people. I'm your host, Kai Scott, and I use the pronouns he and him.
00:00:15
Speaker
I'm the president of Trans Focus Consulting. Each week I dive into real stories and expert advice, offering practical tips and actionable takeaways to help you lead with kindness, confidence, and heart.
00:00:28
Speaker
Tune in to discover how you can make a positive difference. It's just a conversation away.
00:00:39
Speaker
In this episode, we're thrilled to sit down with Adrienne Smith, a human rights lawyer and an activist dedicated to advancing equity for transgender people and others at the margins of society.
00:00:51
Speaker
Adrienne shares their journey insights from their groundbreaking work and the challenges and triumph of advocating for inclusion of gender diversity. Get ready for a deep dive into the intersection of law, gender and social change with one of the most inspiring voices in the field.
00:01:08
Speaker
Let's get started. So Adrienne I'm really excited to talk to you about the law today, ah particularly human rights. And I'm so thankful you came on our show to talk about it. I'm a bit of law nerd myself, so I'm really keen to jump into things. But I think a good place for us to start just to get a sense of what inspired you to pursue a career in law and how has your transgender identity shaped your approach to human rights?
00:01:36
Speaker
A small question to begin with. Yeah, just that. Thanks so much for having me. Thank you for your very gracious introduction. It is a very nerdy thing to be interested in. And and I appreciate your interest in the law.
00:01:49
Speaker
um How did I get here is your question, I think. um I did not plan this. I was um going to be a physicist when I was little um and then realized I can't do math.
00:02:01
Speaker
ah the The activism came out of the trade union movement. I was selected as a steward for the union workplace that I worked in. And I did that diligently for many years until I got to a point where there was a ceiling and a barrier to making better change and I couldn't do more.
00:02:20
Speaker
um And I had kind of stars in my eyes. I'd moved to Victoria to work as a researcher at the Legislative Assembly, which is amazing to work in a monument. um Victoria was not at the town for me.
00:02:32
Speaker
i was very unhappy and quite lonely. And then I came back to Vancouver and did something entirely different and um started working frontline for the Portland Hotel Society, which is the organization that operates Insight.
00:02:45
Speaker
And it was not legal. It was not anything... ah legislative, it had nothing to do with that world and I feel like it's still some of the most meaningful work that I've ever done, changing sheets in a shelter and handing out
Challenges of Being a Transgender Lawyer
00:03:00
Speaker
rigs.
00:03:00
Speaker
um But um I had written the LSAT, which is the admission exam for law school, sort of because I'm bored and I'm the kind of nerd who would write the LSAT for fun.
00:03:12
Speaker
Wow. That's amazing. Yeah, when I was living in Victoria and i had a sort of applied, I guess, and forgotten about it. And then I got an email at the very end of August that summer.
00:03:25
Speaker
They said, you got into law school. And I thought, oh, God, will quit my job and find some way to pay for this. And then and went to law school for three years. It's a three-year program. And then you do a year of sort of an apprenticeship in law. It's called Articles. And I was very fortunate to article at a union firm when I did worker side um workers' compensation law, which is really important in occupational health and safety.
00:03:54
Speaker
um It felt meaningful. It's also a system that really needs an overhaul and a way to streamline it, make it much more accessible and clearer to and really everybody involved in the system what to expect because people think I've been hurt, I'm going to be able to make my rent, and that's really not true.
00:04:14
Speaker
um And it was really heartbreaking work, and I went from the end of my articles, um sort of picking up these stitches that I guess I had left, and um I went to Pivot Legal Society where I did drug policy and fought against mandatory minimum sentences.
00:04:31
Speaker
And what we argued was that for women, for Indigenous folks, and for people who come before the court, as a result of their addiction, this one-size-fits-all really throw throw the book at people, kind of sentencing didn't work.
00:04:43
Speaker
And to take that individual advocacy, the trade union aspect of it, the social justice for folks who are experiencing a criminal barrier to accessing health care. felt like collecting all of these loose threads together.
00:04:58
Speaker
i think the human rights stuff, you described me as a human rights lawyer, and this is still a bit of a surprise to me because that wasn't my plan. I wanted to do criminal law. um i I got a master's in constitutional law, um but I find myself doing human rights. And I think it's it's meaningful change and important.
00:05:15
Speaker
But I think I would be doing this flavor of work no matter where I was. Right, right. Because there's such a need, no matter what the topic is, and and or the lived experience, the way that you describe
Trans Rights and Legal Protections in Canada
00:05:28
Speaker
it.
00:05:28
Speaker
and And so beautiful, too, how you're able to bring all of that together, ah you know, no matter if we're talking about Indigenous rights, or, you know, people using drugs, or, you know, trans and non-binary folks, like there's just...
00:05:42
Speaker
so many different needs that it's really important to have that expertise that you have ah to be able to leverage it and for our collective good and hopefully to get to a more humane, inclusive and considerate society.
00:05:58
Speaker
um So I'm so glad you're doing this work and and really thankful I can appreciate that there's a lot ah to it and you know, can feel overwhelming like you were saying at times. so It's, yeah, really wonderful.
00:06:12
Speaker
I'm curious what kind of, you know, if there are kind of unique challenges or opportunities that you might have encountered as a transgender lawyer in the legal profession, given the work that you're doing. Yeah, um I think for people who want a short answer about what I do, i say I do underdog law and law.
00:06:33
Speaker
I'm not usually aware of my own status as an underdog unless I'm in law. And it is an extremely traditional profession with some very rigid gender roles and expectations about how you will behave.
00:06:46
Speaker
um We had a ah workshop for law students and they tell you, like the career services office is very hard working and diligent and um they are of tremendous assistance.
00:06:58
Speaker
ah This particular workshop was unhelpful when they told us what to wear to an interview and men, men, of course, you're going to wear a blazer and pants and it's going to be gray or black because it's law and women, you're going to wear the blazer and the pencil skirt and a color block blouse that's not too low cut. And then there was picture to show us.
00:07:19
Speaker
Oh, wow. Low cut is to a drawing. Um, and it was not a curvy body like I had, and it wasn't representative of the kind of, um,
00:07:30
Speaker
career that I wanted. Certainly, I think law schools really direct people towards a corporate in-house big firm. I wanted a different path and i i wore pants to my interview.
00:07:41
Speaker
um no But equally, there's some trans femme folks who would be much more comfortable in the pencil skirt, but can't do that. And um I feel like the legal profession is really a ah step back in time.
00:07:54
Speaker
When I worked more clearly in human resources, It wasn't like that. And I think there's something about the credential that really puts us back, you know, and i carousing with Charles II, which is the reason lawyers wear black because we're still in mourning about the death of King Charles because he would come and party with us.
00:08:15
Speaker
He's the same guy. He's the reason you don't button the bottom button in your vest because he enjoyed himself and became ah curvier and couldn't do his bottom buttons up. So it became the fashion.
00:08:26
Speaker
So like, it's a super weird pomp circumstance. um But with that, our expectations that people will hold the door for me and judges call me Ms. Smith, which, I mean, I don't expect them to know who I am, but we also have a time at the beginning of the hearing when we're invited to give our pronouns. And um that's actually really useful because I can tell when other people don't do it.
00:08:51
Speaker
where how how it's going to go. Right. Yeah, true. It's like a litmus test almost. yeah I've had some actually quite disastrous times being trans because as you know, and as I'm sure your listeners know, um there's really a concerted anti-trans campaign going on.
00:09:11
Speaker
And ah some of that manifests in the profession, both in the courtroom but also outside. We had a There's a Canadian Bar Association, which is the closest lawyers get to a union.
00:09:25
Speaker
And at its annual general meeting, there was a debate about pronouns, which was really a cover to discuss the legitimacy of trans people. um at At last year's ah Law Society AGM, there was a discussion about um It was just really, in in my respectful view, it was residential school denialism and um ah an effort to force the law society to change content of its indigenous competency training. But eight the discussion was really quite um aggressive. And I think in the general um equity universe,
00:10:05
Speaker
The legal profession has a long way to go. It's it's a little bit farther behind. And I don't, um that doesn't make me sad because I can look elsewhere and see how um how much positive change has been made in so many other sectors.
00:10:19
Speaker
Sure. Yeah, absolutely. And that, you know, people such as yourself and and others present in the yeah sector really help ah to make this tangible because I think many people lose track ah when they're kind of debating broadly and they don't realize that there's human lives behind these kind of what to them probably are a bit theoretical.
00:10:44
Speaker
um And so, yeah, I think that's yeah super important, but of course also very exhausting to be present for those types of discussions and um and to weigh in to counterbalance with what you know some of the dialogue and direction that people want to head in.
00:11:00
Speaker
um So I just want to shift gears a bit and think talk more broadly about trans rights or transhuman rights but here in Canada in particular.
00:11:12
Speaker
Certainly there have been a lot of changes and you were mentioning some of the positive shifts. particularly around protected grounds that have been changed both on a provincial as well as a federal level.
00:11:25
Speaker
And so I just wanted to you know get your insights on kind of some of those changes to human rights protections for trans people, trans and non-binary folks across Canada, and what have been those changes that have happened.
00:11:39
Speaker
Sure. um i think it's important to say that trans people have inherent dignity and always have. And like all ah laws, our human rights legislation is an imperfect effort to capture those and to write them down. i mean, it just because it's not in the code doesn't mean you're not.
00:11:58
Speaker
worthy There was a a time when the Alberta government didn't put sexual orientation in its human rights code on purpose. um But that doesn't mean that that, you know, queer Albertans weren't entitled to protection. And ultimately what the court did was was called reading in and they just decided, well, you didn't write it there and you meant not to write it there, but it has to be there.
00:12:19
Speaker
The case is called Vriend, V-R-I-E-N-D for the one... nerd out there who's going to go to um canly which is a fantastic resource canlii.org it's a coalition of law librarians for my nerds out there like law librarians are the most nerdy superheroes in the world they run this free website where all the cases are um so we have this inherent dignity that really predates how those rights are captured in the law and Trans people have always been protected in the provinces, the territories, and federally, because discrimination on the basis of sex has always been illegal.
00:12:58
Speaker
And some of the really early human rights cases talk about particularly trans women on the basis of sex. The government's decided that explicit recognition and putting discrimination gender identity or expression in the wording of the law was important not because it created a new right, but because they wanted people to be able to recognize themselves in the law. This is the same as what happened more recently when indigeneity has been added as a ground.
00:13:26
Speaker
Indigenous folks have always been protected on the basis of race and ethnicity and and some settings religion, but to have it explicit means People see themselves in the law and they say, oh, yeah, OK, that that that could be me.
00:13:40
Speaker
a I think what's really important is to think about trans recognition under human rights law. in cases in a long a long scheme and not to to think, you know, Alberta issued this problematic decision last week, um which which is about a woman who phoned 911 because her friend was missing and she was treated quite badly by the dispatcher who who've told her that her friend shouldn't be in that profession assuming that they were both sex workers and misgendered the caller. And I mean, when these cases come out like that, it's quite disappointing. You're like, oh, is this a step back when governments are overtly anti-trans? But over the scheme of several decades,
00:14:24
Speaker
It's actually quite comforting. There's this this foundational case that came out in 1999 about a woman who went to a bar in Victoria, one gay bar in Victoria. The case is called Sheridan and Sanctuary Investment. And she went there and they treated her quite badly. They asked her for her id She didn't look like her picture.
00:14:41
Speaker
They hassled her using the bathroom. She filed this human rights complaint that took two years to be heard. And that Case which is still the law, still good law, says there's a business reason to ask for her ID in that case to police the liquor law, make sure she's old enough to go there.
00:14:57
Speaker
um But you don't have to look like your picture, which is good because a hellscape when we all look like our driver's licenses would be monstrous. and ah But it says really clearly she can use the ladies room. She's a trans woman. She can use the ladies room.
00:15:10
Speaker
um We know non-binary people are entitled to a barrier free bathroom that doesn't misgender them. Like, and what I mean explicitly by that is the picture of the superhero with the cape and the superhero of the superhero with just the tights. There needs to be ah just a picture of a toilet um so that, you know, um people will know the facilities inside rather than,
00:15:33
Speaker
expectations about the bodies of people who use it. But I mean, it's really comforting to me that since 1999, the law has been that you can use the damn toilet. And this rule applies equally to sports teams and uniforms and fitting rooms. And, um,
00:15:49
Speaker
That's never been displaced. It's been reinforced by some subsequent cases. And um I mean, 1999 is a long time ago in the memory, certainly of of most workers and and most folks who consume a service in the city. And I think about Ms. Sheridan and the tremendous support.
00:16:10
Speaker
sacrifice she took talking about the discrimination she experienced so that we would have the benefit of this law but it's also really heartening that that's still the law and i think for folks listening to this who are you know you need to go think about your office and think about the layout of the toilets and whether that's actually accessible and maybe do that extra step for disability justice and not put the bathroom behind a door that needs to be locked because anybody who's you know Disabled or has a small person knows you don't have time to go ask for the key.
00:16:41
Speaker
The bathroom should just be open. And if there's a problem with how people are behaving in the bathroom, we have different rules for that. But but locking a service, it's like a padlock on a water tap. You wouldn't do that. and And so we shouldn't be locking up our toilets.
00:16:55
Speaker
So true. um Such a good analogy to kind of really drive it home that, you know, you can provide a space, but then depending on how it's set up, it can, you can borrow access to it in the name of safety. But, you know, there's also people being it being able to access that space.
00:17:14
Speaker
This is not a new problem. And I think about the way that we have um administered social programs like hot lunches in schools. Super important for kids who might not be getting a meal at home.
00:17:24
Speaker
But when we do it badly, we make them all line up at the poor kids till or have a card or something and everybody can see you're getting a free lunch and it doesn't need to be like that. And um I don't think that's a ah controversial discussion. I don't think that gets into some of the culture war around trans people, but it's an example of how to deliver access to things people need in a ah compassionate and respectful way.
00:17:51
Speaker
And thoughtful to have thought it through yeah from from the perspective, the lived experience perspective, like this wouldn't feel great, right? Doesn't take too much of a stretch to understand that.
00:18:02
Speaker
And certainly washrooms has been a big issue, like you're mentioning, certainly not the only one. I know the media tends to focus on it quite a bit and and it is an important issue. um But certainly having, you know, these landmark cases really clarify it, especially in contrast to some of the things that are happening south of the border now, think this is integral.
Misconceptions and Respect in Trans Rights
00:18:22
Speaker
And I think many people, especially employers, are often surprised by this case law. And it's not just, I mean, Sheridan being a really important kind of get the ball rolling, but then, you know, you know,
00:18:34
Speaker
half a dozen or more court cases that have reinforced that. um Why do you think that is that, you know, there's just like ah a lack of understanding that this case law is in place and to, you know, provide people with that type of access to washrooms?
00:18:49
Speaker
Well, and in the ideal world of nerds, we all, of course, sit down and read the decisions that come out of all of us, of course, in tribunals on top of our exploding inboxes. um I think a lack of access to the law has been a problem.
00:19:03
Speaker
I think this website, Canly, is a great leap forward because you used to have to go to a library library or or dig through paper records. So just access to the law has improved, but it's not a thing that Lots of people do read cases. um And when they do read them, it's a 300 page case and you're not sure which part is important. I think the human rights tribunals are very good at being very clear.
00:19:32
Speaker
And I think having a lack of activists in this area who can explain what the law means practically in language that people will understand. Like I can use the bathroom. That's the law it says here. Like people need plain language explanation of what's actually going on.
00:19:47
Speaker
But I think trans people are a special category because for so long, we weren't allowed to talk about the fact that we existed. And as you know, the coming out pattern was to discover that you're trans, to access what health care you could, um to, you know, in the model we were supposed to follow, live in your real life life.
00:20:08
Speaker
trial and then have cross hormone treatment and and surgery if you could afford it. And if you passed, you moved to a different city and burn your yearbook and never tell anyone you're trans. It's a different world now when our rights aren't contingent on our having been medicalized in that way, but also,
00:20:25
Speaker
I can use my fancy pronouns out in the world and it's actually possible to live like that and I think lots of people think that they've never met a trans person. They have.
00:20:37
Speaker
We're everywhere. There's a trans person possibly in your living room at this moment. You have already shared a bathroom with a trans person. um But I think access to Safety into services on the basis of gender has really been restricted to a discussion about women's rights.
00:20:56
Speaker
And women's rights are fundamentally important. Trans rights are allied with women's rights. um But when we also add Anne-Chi to all of our policy documents, we haven't actually dealt with the problem that gender puts limits on who all of us can be. And that's a problem.
00:21:13
Speaker
Yeah, so true. And so important that you know we'd be advancing ah these important issues together in tandem and in coordination and you know showing where there's overlap and need on so many different sides of you know gendered experience. so I think it's really useful for practitioners who are in the workplace who aren't sure if what the trans person is telling you about a thing that they're experiencing as problematic.
00:21:41
Speaker
it's not a perfect parallel that substitute another equity denied group and say, if this person had dropped the N word in this conversation, we would respond immediately. If this person had said, Oh, all you women are sex predators.
00:21:56
Speaker
We would stop that kind of talk in the workplace. And and we allow much more overt anti-trans discrimination just because it's newly on people's radars.
00:22:08
Speaker
And that intellectual exercise can help to really highlight when something's just egregious and inappropriate and disrupting the respectful workplace that we should have. Nobody needs to be a a legal expert. We have widgets to make and we want the workplace to function. And your basic respect policy covers all of this already anyway. Nothing fancy needs to happen. them Absolutely. It's not a huge mystery ah that people can figure it out in some pretty easy ways.
00:22:35
Speaker
This is a great exercise to figure that out pretty quickly too, right? It's not like it's a huge investigation to figure out what to do. It's like, it's right there already accessible.
00:22:46
Speaker
ah one I wanted to kind of expand past the washroom court cases. And I know recently there have been a lot of additional court cases that have come ah forward, some that I think are really good to just get a little bit further into, particularly around pronouns, privacy, some hiring practices. i don't know if you wanted to kind of give a ah broad overview of what some of those cases have been.
00:23:12
Speaker
Obviously, there's a lot of detail to it, but just some something useful for folks to to to understand and appreciate about those Perhaps I'll start with the punchline about legal recognition for trans people. And it's one sentence. It's it's um very easy. People can vote it write it on a post-it note on their workstation.
00:23:31
Speaker
Trans people are entitled to immediate recognition of all aspects of gender. That's not difficult. um And the cases have coalesced around bathrooms and gendered spaces, but also really notably language. And beyond that, there's the criminal law that prevents us from you know, the the basic things people trans people unfortunately experience all the time, like criminal harassment and assault and threats.
00:23:56
Speaker
These are really common if you have public facing services. um and any Anybody who's going to see the public increasingly is going to experience discrimination on all grounds, um particularly um race is another area that is increasing catastrophically.
00:24:12
Speaker
So your frontline service staff are going to be experiencing these things um no matter who they are. But trans people particularly will experience a particular kind of discrimination on the frontline.
00:24:24
Speaker
But the easiest thing we can do is change the way that language happens in our workplace because trans people's pronouns and our chosen names are legal requirements. These are not optional.
00:24:36
Speaker
um There's a legal requirement, not just to not use the wrong language for me and, you know, really reduce my dignity in the workplace. But the Human Rights Tribunal says there's a positive avogation to use people's names and to use our pronouns. I think for folks who aren't trans, the case that establishes this is called Nelson.
00:24:55
Speaker
And it has a really important section about the importance of names. I had the infinite honor of representing Jesse Nelson at the BC Human Rights Tribunal. And they told the tribunal about their name. and in In their workplace, they um they're a restaurant server and folks who've been restaurant servers know you're often not entitled to the dignity of a name. Your name is Sweetheart or Honey or Jesse had pink hair, so they were called Pinky. And one of the things that they told the tribunal, they kept telling this coworker, use my name.
00:25:24
Speaker
yeah My name is Jesse Nelson. And I think that section means not only... that trans people have a legal right to have our names recognized, even if they're not legally changed, which is important because the BC government has just restricted name changes.
00:25:38
Speaker
But I think for folks who aren't trans, who have adopted ah adopted an anglicized name, just because it's easier for other people. I think those folks have a legal right to to use their actual name and to have it pronounced correctly.
00:25:52
Speaker
And perhaps I'll send you the link from the signature block in my email um for the show notes, which is a little button you can add to your signature block. that says beside your name, pronounce or hear it. And you go to this link and you record how your name is said so that people can do it. And I mean, if your name is Adrian or Drew or David or Jennifer, it's important to still do that ah just sort of to normalize the use of the tool.
00:26:18
Speaker
Right. Yeah. And such a simple, be able to address the situation, allow people to play it, hear it, reinforce it and actually use the proper name.
00:26:30
Speaker
It's yeah, such a simple thing, but really profound in how it translates. And thank you so much for mentioning too, that even if somebody can pronounce, that might say for example, my name is pretty easy to pronounce, but even so there's value in adding it.
00:26:44
Speaker
Yeah. Yeah, and I think if your pronouns equally are are obvious to you and to everyone around you, the act of putting them in your signature block is still important because it shows trans people who get mail from you that you might be safer than people who don't do that. And it costs nothing.
00:27:02
Speaker
um Your corporate style people will ah allow it. um It's fine. But I think you asked me to talk a little bit about the cases and I want to talk about... um a couple of important ones that happened in British Columbia, but are the law across the country. We've been met by other human rights tribunals that have come up with similar rules. And the first cases is, I mean, I talked about Sheridan, which is very important about bathroom access.
00:27:27
Speaker
The language cases are called Dawson and Nelson. And Dawson is about trans woman who was arrested by the police. It's a BC human rights case about and non-discriminatory access to services because being arrested is a service.
00:27:40
Speaker
um And what happened to this woman is that she was ah referred to by the name on her driver's license, which is not the name she uses. And the police didn't reliably call her she her when they know that she's a woman.
00:27:54
Speaker
um They also denied her some critically necessary medical care when she was in the jail. So we're not sure how much of the fifteen thousand dollar injury to dignity award she got was for the health care and how much for that was for the language. But this case establishes that misgendering people, which is to use a suite of language that implies ah gender for a person um and it's incorrect and dead naming, which is to insist on using a name that the person hasn't chosen to use.
00:28:24
Speaker
These are human rights violations and they can be quite expensive. um Those are service cases, but the Nelson case that I mentioned before, it's called Nelson and a Goodberry Restaurant. It's about a restaurant server.
00:28:35
Speaker
um That person was fired for being misgendered and they got a $30,000 injury to dignity award. They were experiencing some problems with a...
00:28:47
Speaker
I would say, transphobic co-worker who wouldn't use their name, wouldn't use their pronouns. um He told the um Human Rights Tribunal that his father had fought in the war so that he wouldn't have to tell lies.
00:28:59
Speaker
And um the the worker did what they were supposed to do and asked the the manager for help. And the manager said, sure, but later. And later never came. There is a dispute between these two workers. The employer ah preferred the bar manager and called my client a few hours before their next shift and on speakerphone in front of some witnesses who were good enough to come to the tribunal and testify. But what the manager said was you asked for too much too soon and you came on too strong.
00:29:29
Speaker
in terms of language. And Jesse Nelson got $30,000 as an Injury to Dignity Award, not because they were misgendered in the workplace, but because they were fired for insisting that the workplace use respectful language.
00:29:44
Speaker
And this is a really significant decision. It was met that same summer by a case coming out of Ontario called E.N. and Gallagher's Lounge. And this case is about three non-binary workers in a restaurant kitchen.
00:29:58
Speaker
And the manager told a customer that he had three T word, transphobic slur, working in the kitchen. He used this offensive word, but he also exposed these people as trans and outed them. And dead naming, misgendering, and outing are the three big ways that, I mean, I don't want to say they're polite or garden variety. They're not overtly violent in a civil in ah in a physical way, but they're the most common problems that trans people face in the workplace.
00:30:27
Speaker
And they're human rights violations. There's a similar case called BELAC and MC Tractor that extends this to federally regulated workers, which means that every worker in Canada has a right to use their name, use their pronouns, to have their trans status protected at work.
00:30:44
Speaker
I think this is is tremendously important and it's not the world that I started doing law in. There were not cases that said this then and i can't help but be hopeful. It so clearly spells it out. And in some of the ways that the judges talk about it, it just it's so crystal clear in a refreshing sort of way because oftentimes people try to kind of figure out how to maneuver around these very basic things considerations and obligations, like you said, um which I find baffling, but they're like timely intervention of managers and leaders, you know, respect is owed to everyone, including trans and non-binary folks, which includes first name pronouns, right? Just like so clear um and puts that obligation on the employer too, which, you know, I don't think sometimes people don't know.
00:31:38
Speaker
Well, and that's not hard. We have this obligation to everybody all the time. i think a lack of education about trans people helps it to fester.
00:31:49
Speaker
What I'm most proud of about that decision isn't that there was a case. um Because I don't, you frankly, I don't want human rights hearings. I don't want to put people through having to tell their story. sure um I don't want folks to be embarrassed by the decision existing forever. But...
00:32:07
Speaker
I got an email one afternoon, Friday afternoon, when I was feeling kind of sad um from a fast food worker in Smithers who said, I gave my boss Jesse Nelson's case and it's better now.
00:32:21
Speaker
And that's what we want. We want it to be better. We want spontaneous action of normal managers doing their job to make respectful workplaces so that we can focus on doing the work, whatever that work is to happen. we don't want big cases. i don't want more clients. I don't want to go to the Supreme Court of Canada again and tell them,
00:32:42
Speaker
Trans people experience discrimination. It was lovely what happened at the Supreme Court of Canada, in a case called Hansman and Neufeld. the The Supreme Court had never mentioned trans people. There were no mentions in any of the law.
00:32:54
Speaker
And this case was about a school trustee who had said some really quite offensive things. um The president of the teachers union was asked for comment and he he he he said these remarks are hateful.
00:33:07
Speaker
um The trustee sued him in defamation and the case made it all the way up to the Supreme Court of Canada. At the Supreme Court of Canada, what they did was notice. all of this human rights law that we've been talking about in all these cases and adopted them into section 15, which is the equality provision of the charter.
00:33:24
Speaker
And they said trans people are protected. This isn't pretend it's not optional. And despite that, we still experience tremendous discrimination and there's still work to be done, which solves the problem that i was afraid of when the human rights codes changed that people would think, oh, well, it's in the code now, so it's sorted.
Fostering Inclusive Environments
00:33:42
Speaker
The application to the real world is still very important. And to have that recognized by the highest court in Canada, really significant win for us. Wow. Oh, that's so exciting and relieving too, because, you know, to kind of leave things out there for interpretation or, you know, for some other way for people to deke around it's like super exciting to hear that. And also so thankful for you to be there to explain it, especially, know, as a trans person that has a very powerful impact.
00:34:13
Speaker
um I know um you know there was someone else who did that, ah the US Supreme Court, Chase, recently, and I think that, um even though it didn't go the way we needed it to go, um but certainly having him there really landed a very powerful way. So I think that's tremendous, ah even though we still have a long way to go.
00:34:33
Speaker
so um One thing I wanted to, you know, there's some questions that we get um quite often. People are can be anxious, especially cisgender or people who are not transgender can be anxious on this topic. And often they misunderstand the law.
00:34:50
Speaker
In particular, we get if I'm accidentally misgender, which is different than intentional misgendering. Will I be sued for discrimination or will I go to jail? That's just where people's heads are at. And i was wondering if you have any thoughts on that ah and if you that there are other common myths about the law when it comes to trans people.
00:35:12
Speaker
It's a really common misunderstanding that I think has really been exploited by this and anti-trans movement to to think that um somehow people will be punished and will go to jail. The criminal law is really special. It has a really high bar um and it goes like in its own box.
00:35:31
Speaker
If you're accused of something in the criminal code, the criminal law deals with that and a very small subset of those lead to jail. And I have lots of views about the criminal law. I don't practice there anymore because it's heartbreaking.
00:35:45
Speaker
But the kinds of things that would get people sent to jail for mistreating a bad person are very serious stalking and assault and and sex assault and um very elaborate, clear to prove hate actions.
00:36:01
Speaker
um Even the hate speech provisions in the criminal code are very seldom prosecuted. So people aren't going to go to jail. Let's just put that to the side um unless they attack a trans person. And I think we have used as a society that a criminal sanction is appropriate for physical violence.
00:36:18
Speaker
um Human rights law is ah it's quasi constitutional, which means it has a higher status than all the other laws in the country. um If you violate a human rights law,
00:36:30
Speaker
code provision then there's a decision usually the the penalty is uh financial like jesse nelson but the nelson case is really helpful when jesse first got hired as a server at this restaurant in a small community what they said was i'm a non-binary person i'm transgender i use they them pronouns is that going to be a problem and the manager who had never met a trans person before i think said, we've never had that before.
00:37:02
Speaker
i don't know. We'll try. and that was enough for Jesse. The bar is not perfection. And as people were learning how to put they them pronouns into a sentence, they made normal errors like they were learning.
00:37:16
Speaker
This was okay with Jesse. It's not that you're going to, like a judge is going to accidentally call me Ms. Smith, trying to be respectful that they're going to get the book thrown at them.
00:37:26
Speaker
Right. Um, it, There is ah ah ah a sort of trans people can tell the difference between a ah an honest accident and a malicious refusal. I saw this like maybe offensive Instagram.
00:37:41
Speaker
The person said that they were explaining misgendering, which is using the wrong language, to their mom. And they said it's like farting in public. Like if you do it by accident, people will notice and they'll forgive you.
00:37:53
Speaker
If you do it all the time because you don't care, they'll come to think that you're rude. If you intentionally fart at somebody, they're going to think that you're an a-hole. yeah And i think that's a really good way to think about it because people are very concerned. And I think human resources folks out there who are trying so hard, thank you for trying so hard.
00:38:13
Speaker
um The world is not going to collapse. If we mispronounce Wei Jing's name or if you accidentally put the F box on the extended health benefit enrollment because there's only two boxes, um I think it's really important to ask people what they want, not to put them on the spot and make them do extra work of teaching you how to do it, but also really enforcing our existing respectful workplace policies that say we don't get to pick on people. You don't get to just...
00:38:44
Speaker
make up a name for someone. You ask people what their names are and what they want to go by in the workplace, and then you do that. And when they complain to you that somebody is being disrespectful, even if that disrespect is unintentional, you have an obligation to do something. And human rights law is really clear that the intent isn't the point, it's the impact. We don't show malice, um which means an unintentional a process or a policy that is uniform to everybody and not meant to be discriminatory could be nobody is set out to tell me i can't use the toilet because there's only men and women's bathrooms in the workplace like and that's not anybody's nefarious intent but it makes it difficult for me to use the toilet and that means i won't work for you and so in terms of talent acquisition and retention it's easier just to put toilet on the wall
00:39:34
Speaker
um but also to make sure that whatever it is that people need to be respected, no matter who they are, is enforced stringently and I was at an event, a social event last night, and the person asked me how it was going for me because she's like one of those mama bears who wants everybody to be included. And I said, you know, nothing creepy has ever happened to me here. And she said, oh, it was like a bar where there's alcohol served. and And she said, it's really important for me in my event. It's really good to hear. You know, if it ever did come to me, it would stop immediately.
00:40:07
Speaker
but I think the tone of these things is really set by what the organizer is willing to allow. And that's true also in the workplace. If management is willing to let garden variety disrespect happen, it will escalate into something worse than targeted.
00:40:22
Speaker
um But enforcing basic respect isn't just a nice thing. It's a law, and but it also helps everybody. And I think the best example of that is the needlessly controversial SOGI 1, 2, 3 learning resource that is in place in the public schools in British Columbia, they did a study and it doesn't just reduce discrimination for queer and trans kids.
00:40:47
Speaker
It makes every kid in the school system feel more included in a measurable way. And everybody has a respectful workplace policy already. Everybody has an anti-discrimination process.
00:40:58
Speaker
And I think the secret is not to think of a better process to handle complaints, which is the tempting legal nerd way to go and think, well, let's talk about my process for complaints. Let's foster an environment that is...
00:41:11
Speaker
very difficult to be disrespectful in. Incidentally, it also boosts profit and productivity and retention and all those other things that you're looking for. um But it makes it a pleasant place for people to come to work.
00:41:23
Speaker
And it's easy and it's like practically free and ah already a core part of lots of people's jobs. You don't need a DEI HR dedicated office to handle complaints.
00:41:34
Speaker
You need a well applied, respectful workplace policy and a way for comments about how it's not doing its best to be handled in a way that isn't a formal complaint.
00:41:46
Speaker
Yeah, yeah, yeah. It's so true. And that that's a way to kind of help continue to shape the culture if it's slightly or very off um and not including everyone, not respecting everyone.
Legal Cases and Cultural Changes
00:41:57
Speaker
um I agree so much. there's like this can Most of everything that we're talking about can be solved on a cultural level. And yeah, sure, there's some effort involved in shaping a culture and intentionality um and not letting things slide when maybe you're like, oh, maybe nobody heard that or, you know, you know try to kind of make do. But intervening in those moments that seem small can help towards preventing the larger things from happening.
00:42:26
Speaker
um Such a good point. I had the most transformative meeting. I was invited to a law firm to talk to their senior partners. And I got there expecting to do the social justice talk.
00:42:38
Speaker
And I got there and they're corporate and tax lawyers and they don't do this kind of soft people and culture work. um But they came to the workshop because they wanted to learn how respectful pronouns affected their work doing corporate tax and doing commercial law.
00:42:58
Speaker
And I think Making sure everybody gets the benefit of our basic training is another useful thing because we tend to focus on ah like ah certain category of management or frontline reception staff when really everybody needs to hear it. And i see this so often in ah organizations when the category of people who do a thing are trained, but their admin staff aren't.
00:43:24
Speaker
Right. Which means the person who actually answers the telephone might call me ma'am in a way that's just like a barrier for me to get to where I need to be. And I just I want to lift my hands up to Vancity, who has a compulsory five minute training video for all staff that everybody has to check off that they've watched um every year.
00:43:46
Speaker
And they were very fun to film. It's like sometimes tellers are like, you're the pronoun one. But I did this cute little series of just internal training videos that are short and people can watch them without having to dedicate a whole afternoon to a DEI seminar.
00:44:03
Speaker
And then you can say like, hey, you've had this training video, what's still happening? What kind of support do you need to not Call that person with this language. And it's it gets us into the problem solving before the problem has happened.
00:44:17
Speaker
Like taking your vitamins and eating eating a vegetable and going for a walk rather than just hospital as my solution for all health care. That's so true. And I love the accessibility of something short because you're right, not everybody has time and availability, certainly frontline staff especially.
00:44:34
Speaker
ah They're stickhandling so much that yeah having short moments of microlearning and and with with some reinforcement or um reiteration certainly can bring people along. and This is not rocket science.
00:44:48
Speaker
Some people may think it is, but it's actually not once you kind of think about it and whatnot. I have one more question just to kind of close us out here. i know we've covered a lot of terrain here today. There's so much exciting stuff happening.
00:45:05
Speaker
um I'm curious if you could change, if you could create one legal change to improve the lives of trans folks, what would it be and why? I know it's unfair for me to say one and youre you're okay to go beyond one, but just curious what the kind of big the thing would be to help folks out.
00:45:27
Speaker
You've asked me how to fix the world. um Absolutely. World peace. Because I'm a lawyer, I think a lot of my focus is on how the legal system is failing us. i'm I'm writing a book about vexatious discrimination claims and people who complain that they're facing serious discrimination and they're not. They've just heard something offensive.
00:45:48
Speaker
um And it's an irony to talk about reducing discrimination claims from somebody who does discrimination claims. It's my job. um I think I've got lots of views about the legal system and what an early screening process and the ability to dismiss claims that don't have merit um would look like, not just in court, but also in um grievance arbitration and under discrimination policies for any workplace, but that's not what you asked me. You asked me would make the world better. And I think it's for people who are not trans.
00:46:26
Speaker
Hmm. to think about what they can do to make wherever they are in the community feel safer for trans people, but also for folks who are as white as me to think about what the implications are of not ever being uncomfortable in learning.
00:46:42
Speaker
um Like we might accidentally put the word potluck in the middle of Ramadan, which is a fasting month for Muslim people because we don't know. Right. And you don't know what you don't know.
00:46:54
Speaker
um Somebody said, oh, going have to learn for my whole life. And that feels so hard. But I think that's actually quite joyful is to think about what it is that you don't know and to talk to people who don't look like you, who don't live in your community, who aren't in your sector and find out what they're doing about the same struggles that you have. Because it could be that there's a very easy solution. Right.
00:47:15
Speaker
um that has the wheel has been invented somewhere else and you don't need to reinvent the wheel but also you can't think about like I talk to men in industrial jobs who don't really appreciate what it's like to be a woman working in an industrial job there and it's like oh yeah but you work with this woman here just listen to her they're like oh yeah she has been saying all along that this that and the other thing like yeah so I think maybe listen more closely to the people around you and what I'm telling everybody now is to spend half as much time online as you do with actual people, because there's an algorithm that focus you into seeing more things that are profitable for them.
00:47:56
Speaker
You're not allowed to actually get actual accurate news. Like it's banned. Facebook doesn't let you read the news. um And it, there's this temptation that your echo chamber will persuade you that the whole world is like, it is wherever you are. And that's,
00:48:12
Speaker
not true and it keeps us from learning about each other and it allows um i think these pockets of of frankly hate to fester so go outside talk to somebody have a conversation with your neighbor about how they're doing ah go do community and i mean if you're microdosing a movie scrolling through instagram like i am every night maybe don't do that maybe you call your friend, have a nice quick chat before bed instead of needing to look at all of those things.
00:48:43
Speaker
Absolutely. So truer words have not been said. i think it's so important, as you said, to get the social media is not really, i mean, it serves us in some respects. There's a positive aspect to it, but certainly I think net negative to where especially kind of reaching beyond our comfort zone to be able to get to know others ah who are so close by, right? Like, you know, arm's length away, really.
00:49:09
Speaker
ah And I've been doing that quite a bit, um you know, and this is closer to it's within our community, um but two-spirit folks, right? I mean, that's something where I'm really wanting to to deepen my understanding. you know Certainly, I understand reconciliation, truth and reconciliation, and and needing to advance things to you know um address the harms, the the tragedies of the past and the present.
00:49:36
Speaker
ah They continue. So I think that's a really important call to action that, yeah, i may feel uncomfortable and I don't know exactly what to do at every moment, but I'm there.
00:49:46
Speaker
We can all be there for each other and listen, like you said. so And the point in a space like that is to to listen and to let those folks drive the the the ah change. I think I've been invited to the equity, employer-run equity group in a number of workplaces um where people who share a set of identities are told by their boss to go participate in making the workplace better and I don't know that that's actually the solution. I'm glad those folks are in the room.
00:50:18
Speaker
and don't think they should have to do the heavy lifting and I think for for people as incandescently white as I am, um it's really important to hear from folks who are not, who can tell us what needs to happen but not also expect them to do that on top of all the other things they're doing.
00:50:35
Speaker
So if you have a trans inclusion policy and there's no trans people, look at that but also it's not a problem you can just hand to those folks and say go fix this workplace like we're going to fix it centrally yeah but you're going to tell us what changes need to happen and we're actually going to listen and help out ah by doing ah the the effort. Because it does take some effort to to make these changes. And that's so critical because trans and non-binary folks or racialized folks, indigenous folks, are already handling so much. So you can take things off the plate rather than putting things on.
00:51:08
Speaker
It makes a huge difference. and inclusion is not optional. It's a legal obligation. so It's not like i don't want to do that. It sounds like a lot of work. It does sound like a lot of work, but it's how are we going to do that this piece this time? Yeah.
00:51:24
Speaker
One step at a time too. Yeah. And like you said, it's ah it's actually a gift. This is like an opportunity that um You know, whether it's somebody who is already in your midst or somebody you can anticipate being in your midst.
00:51:36
Speaker
um That's a huge thing. And there's so much that can be learned about those, ah you know, a set of people, about oneself in relationship with those people.
00:51:47
Speaker
at Anyways. Yeah. And someone's thinking, we have no non-binary employees. Well, go fix your toilets and then you might. Right. So true. Well, anyways, thank you so much, Adrian, for this wonderful episode. I really enjoyed our our talk today.
00:52:03
Speaker
i of course, just incredibly thankful for your work, your passion, your dedication for who you are as a person. i mean, this is, I always hype people who are working in the field, in so many fields, in so many regards. So,
00:52:19
Speaker
um Where can people find you if they want to follow up after this episode? Well, I have some pluggables to plug. If people want to talk to me about legal work from me by me, um my website is
00:52:39
Speaker
But also I want to talk about the trans legal clinic in British Columbia. We got a big grant from Vancity to pay for name and gender change ID updates. amazing So people want a free name change. They want help with a gender change.
00:52:53
Speaker
We will help you for free and cover all the costs and a lawyer can stick handle that process for you. You write to us at lawyer at CWHWC.com for folks who need to join us by phone. It's 604- 442-4352. We will meet at your convenience by Zoom anywhere in the province. If you're outside of BC, but you have BC documents, we can help you.
00:53:18
Speaker
um We can also connect you with whoever is doing the kind of trans law in your province that you need.
Trans Legal Clinic in BC
00:53:23
Speaker
We do free name and gender changes. We do full representation on some big files, like the Nelson case was a clinic file.
00:53:30
Speaker
But we'll also give people half an hour of free legal advice about whatever issue they're having if they're two-spirit trans and non-binary um and that makes us a little different than clinics that specialize by area of law it's terrifying and big but it's what people need so if you know a trans person you need some legal help please reach us if you want to talk to me adriadsnifflaw.com thanks so much Amazing. I'm so excited. We'll put all of that in the show notes as well, because I'm sure that'll make it easy to access. And again, thank you so much. And I hope you have a good rest of the day and we'll sign off from here.
00:54:07
Speaker
Thanks so much for having me. Have a fantastic day. Bye for now.