Anti-Trans Legislative and Policy Risk Map

Une version française de cette page va être publiée bientôt.
LAST UPDATED: SEPTEMBER 6TH, 2023 (methodology section added).

Canada is not safe from anti-trans hate. When I sent out an opinion article to the Toronto Star, knowing that the status quo is becoming worse, I wasn’t expecting things to go down so quickly. Unfortunately, since May, anti-trans discourse has invaded cabinets and legislatures throughout the country. What began as modifications gutting New Brunswick Policy 713 have now spread to Saskatchewan, and is now at risk of spreading to Manitoba and Ontario. People are talking, writing to me in fear, wondering what they can do to address this. 

That’s why I’m following Erin Reed’s footsteps, and creating an anti-trans legislative and policy risk map for Canada. Without further ado, here you go: 

Map of anti-trans legislative and policy risk in Canada. A map of Canada is displayed. BC, YK and NL are in blue. PE and NS are in yellow. QC and 'Federal' are in light orange. AB, SK, MB, ON, and NB are in dark orange. SK and NB are shaded.

 

Some trends can be easily seen here. The Prairies are the most hostile provinces towards trans people, while the West Coast has been the most proactive at defending them. Quebec and the Maritimes have not recently had any appetite for anti-trans policy or legislation, save for New Brunswick, where provincial prime minister Higgs has made his entire platform rely on his anti-trans policy amendments. 

Before jumping in depth into every province, it’s very important to note that the powers of Canadian provinces are divided between the federal government and provincial governments. For example, criminal law falls solely under federal jurisdiction, while name and gender marker changes, schooling, healthcare, and human rights protections all are of provincial jurisdiction. This has implications, whereas a federal government may freely mow over trans rights by banning gender-affirming care for minors, or even adults; while no matter how hard a province tries, a provincial gender-affirming care ban would be struck down as ultra vires (unconstitutional). 

You might ask me — what about human rights law? What about our Canadian Charter of Human Rights and Freedoms? Sure, it will protect us, but there are two major caveats. First, courthouse delays and lack of access to justice for trans people in Canada means that anti-trans policies and laws can stand unchallenged for months, if not years. Affected trans kids, adults, and elders will suffer in the meantime. Second, the Charter can be overridden: a notwithstanding clause can enable a government to storm forwards regardless of human rights concerns. This is exactly why Quebec’s hijab ban (Bill 21) still stands to this day. As such, no Canadian is spared from anti-trans hate until the day it is eradicated. 

In the meantime, let’s look over each Canadian province, one at a time. 

 

High risk provinces 

Five out of thirteen Canadian jurisdictions, and eleven I have sufficient data on, are ones I’d consider ‘high risk’. This is because of a variety of actions taken by their respective provincial cabinets and prime ministers which all suggest the potential of further harm towards trans people down the line. These are as follows: 

  • Alberta 
  • Manitoba 
  • New Brunswick 
  • Ontario 
  • Saskatchewan 

Both New Brunswick and Saskatchewan are in this category for obvious reasons: they’re passed policies restricting trans youth’s abilities to be recognized as who they are in school, without parental consent. This is particularly explicitly worded out in Saskatchewan’s, where trans students are explicitly singled out as the targets of a policy introduced for purported ‘parental rights’. These alone make them the Canadian jurisdictions with the most trans-hostile political environment. 

Close behind, Ontario’s Education Minister has announced, during a recent press conference, that parents “must be fully involved” if their child chooses to use a different pronoun at school. The current Ontario government, led by a P.C. majority, is equally responsible for gutting the province’s sexual education curriculum in 2018, and has refused to stand up for trans and non-binary people’s best interests on numerous occasions; they’ve also previously attempted to union-bust using the notwithstanding clause. It’s quite likely that Ontario will follow suit in N.B. and Sask.’s governments’ footsteps in codifying anti-trans policies, and potentially legislation, down the line. 

Manitoba is part of this list for similar reasons as to the three prior entries. Leading election contender Heather Stefanson is intending on introducing similar ‘parental rights’ legislation if re-elected, which is likely according to current polls. 

Finally, even though Alberta has not yet dabbled with restricting trans youth’s ability to thrive in schools, it would be a contender for such policies or legislation. Premier Danielle Smith has been photographed posing beside someone wearing a ‘straight pride’ T-Shirt at an anti-trans protest, has donated at least $60,000 to the far-right Justice Centre for Constitutional Freedoms (Canada’s equivalent of the Alliance Defending Freedom and other far-right ‘legal defense’ groups abroad), and is leading a party whose candidate once compared trans youth to feces in food. No explicitly anti-trans policies nor legislation has been introduced there yet, but the risk remains very much present. 

Whether all five of these provinces will attempt to further curtail trans and non-binary youth and adults’ civil liberties beyond schooling remains to be seen. However, with the current climate of imported transphobia from the U.S., U.K., and abroad, it would not be surprising to me if the situation gets worse very quickly. 

 

Medium-risk province: Québec 

Québec is a particular case. After fending off Quebec Bill 2 two years ago — a bill which initially contained regressive provisions concerning legal gender recognition in its initial form — trans rights were reinforced in the province. This bill was likely the way it was because of the influence of anti-trans ‘feminist’ groups in the province, such as Pour les droits des femmes du Québec (a government-funded non-profit primarily advocating for Bill 21, who the government frequently consults). Since then, there has been no real appetite for anything anti-trans, and the legislature unanimously adopted a motion condemning anti-drag protests. 

However, despite this, Québec remains particularly regressive in some respects though (notably by being the only Canadian province not having access to X gender markers on provincial ID, and having fought relentlessly in court to prevent X gender marker recognition). With recent incidents in the province — such as a wave of targeted hate which ensued after a letter informing parents that a teacher would be using Mx. as a title — not having been denounced instantly by politicians, I can’t confirm that politicians will have no interest in anti-trans discourse down the line, hence this ‘medium’ rating. 

I am expecting this pattern to continue into the near future, although I would note that the current leading party — the Coalition Avenir Québec — tends to love moving ahead on issues without consulting affected populations.

Need help with a name change in Quebec? Check out my Trans ID Clinic! 

 

Medium-low risk provinces 

Two Canadian provinces can be classified as ‘medium-low risk’. These jurisdictions have in common the fact that they haven’t attempted to dabble in trans issues politically, or have otherwise attempted to distance themselves from accusations from transphobia. These may also have enabled some advances, albeit not in a way that sends a decisive message that ‘transphobia is not welcome’. These are: 

  • Nova Scotia 
  • Prince Edward Island 

Nova Scotia stands here because even though the province announced a recent Gender-Affirming Care policy, complete with increased funding for accessing said care, and the current premier has marked International Day against Homophobia and Transphobia just this year, the ruling P.C.s have not taken affirmative action on addressing rising anti-trans hate. They need to come together, the same way the N.S. NDP has, and start by at least denouncing said hate, to be a more welcoming jurisdiction for trans and non-binary people. 

Prince Edward Island has had recent incidents, whereas the prime minister made harmful comments on trans issues, but quickly apologized for them after they were made public. Otherwise, nothing of note can be said. There seems to be no appetite for anti-trans policies or legislation there though, hence this neutral rating. 

 

Low-risk jurisdictions 

Three Canadian jurisdictions can safely be classified as ‘low-risk’, owing to their ruling parties and their efforts to actively enhance the quality-of-life of trans people: 

  • British Columbia 
  • Newfoundland 
  • Yukon 

British Columbia (hereinafter B.C.) has been at the political forefront of trans rights in Canada in many respects. Recently, it moved to remove gendered phrasing from its legislation — a Canadian first! — and has removed medical requirements from its name and gender marker change process. Its prime minister has denounced various instances of transphobia, including one at a track-and-field meet in Kelowna: the B.C. NDP is is also the only left-of-center provincial party in power in Canada. A lot has me going for it, but I do want to note that Vancouver and Vancouver Island are, generally speaking, safer than the rest of the province for trans people. 

Newfoundland’s government, while not a leader regarding trans and 2SLGBTQI+ inclusion, is nonetheless ‘not too bad’. Some schools have been targeted by some anti-trans hate, but no other transphobic incidents have been, thus far, propelled by legislative actors or cabinet ministers. The fact that Newfoundland doesn’t have a Conservative-leaning government, and doesn’t appear like it would swing Conservative anytime soon, pushes its risk level down to ‘low’ despite the province otherwise being unremarkable. 

Yukon, as the only territory on this list, stands out for its unmatched publicly insured gender-affirming care coverage. There are many case reports of trans and non-binary Canadians moving to Whitehorse, in part to access said coverage. Yukon equally stands out for its mandate that schools shall have 2SLGBTQI+ safe spaces and/or activities. Some instances of hate have been reported, but they have been relatively limited.

Note that I do not have enough data to compile on the Northwest Territories and Nunavut to make a judgment call on them.

 

Federal law 

The state of anti-trans federal legislation in Canada is definitely not imminent. However, the Conservative Party of Canada has been diving into anti-trans rhetoric, including the possibility of criminalizing gender-affirming care for trans youth. Considering how the CPC’s polling has shown it surging in the last few months, the risk that something bad happens soon is moderate, but if the CPC’s membership ends up adopting the motion to criminalize gender-affirming care at its upcoming conference, it would certainly push Canada as a whole’s risk level upwards. 

 

Methodology

A variety of factors, mostly qualitative, have been taken into account in elaborating this map. Any and all anti-trans legislation, policies, and statements are assessed. Risk is also determined according to the party in power in each jurisdiction, opposition parties, said parties’ policy statements regarding trans people and analogous topics (e.g. reproductive justice, sex education), as well as federal and provincial electoral polls. Intention to introduce anti-trans policies or legislation which has a high likelihood of passing legislative scrutiny — for example, a draft policy introduced by a political party holding a majority in provincial parliament — automatically bumps a jurisdiction’s risk to ‘high’, owing to the strong possibility that this leads to further anti-trans government action.

Currently, owing to the broader anti-trans climate in Canada, volatility concerning public and conservative ‘opinions’ on trans people, and a relative lack of concrete anti-trans policies and bills (only two having been introduced so far), it’s harder for me to assess risk quantitatively, or rather with a more formal scoring system. As I become increasingly connected with local activists in every Canadian jurisdiction, and as inevitably more policies and legislation end up being introduced, this map will progressively refine itself.

As a note, the scale I use is different from Erin Reed’s scale for U.S. anti-trans risk. I am trying to assess the risk of regressions for trans people’s civil liberties, both youth and adults’, and not necessarily the risk for a particular type of legislation or policy, or the likelihood that someone ends up being forced to move owing to these.