This is part of a series of posts sketching out legal paths for challenging anti-transgender laws in Canada.

1. Anti-Transgender Laws Are Jim Crow Laws

Laws do not exist in a vacuum – the cleverest of legal arguments are often decoupled from the human experience and day to day lives of people.  Therefore, laws must be understood in the context of the society in which they exist, as well as the legal frameworks in place. 

“Jim Crow” laws were laws passed in various states to create a segregation between white people and people of colour in the United States.  These were the laws that forced black people to sit at the back of the public transit bus, or required them to use specific bathrooms (sound familiar?) or drinking fountains.  They also enabled businesses to refuse service to people based on such characteristics. 

I would hope, that in today’s world, such laws are seen as the injustices they are – laws designed to target people based on characteristics – humiliating, segregating, and ultimately criminalizing their existence.  In today’s Canada, S15 of The Charter specifically prohibits that kind of legislation.  

Anti-transgender laws are, in this writer’s opinion, very much the “new Jim Crow” laws.  Largely they are based on ginned up fears of the “dangers” that the targeted group represents for society.  I’m going to walk through why these laws should be invalidated in Canada, and I will do so by deriving a possible test that could be used to objectively identify a “Jim Crow” law, regardless of whom is targeted. 

Analyzing The Laws Themselves

First, let’s apply the “three part analysis” that the Supreme Court of Canada uses in interpreting The Constitution and The Charter, and I will explain how these laws – no matter how cleverly worded they may be – are in fact little different from racial segregation laws. 

Purposive Analysis

Of course, the purpose of these laws is fairly clear:  to make it so hard to be a transgender person that the general public never has to interact knowingly with a transgender person.  On their face, these laws are designed to specifically make life for transgender people more difficult than necessary. 

The government may argue that these laws are protecting “women and children” from “male sexual predators”.  But, let’s talk about that, because it’s kind of important.  The implied claim being made is that transgender women are equivalent to male sexual predators.  This claim is not supported with any actual evidence.

A secondary claim the government might make is that the purpose here is to prevent a sexual predator from cross-dressing in order to gain access to their prey.  This line of reasoning doesn’t make a whole lot of sense.  In general, sexual predators are motivated by power and violence – dressing up as “the prey” would be a symbolic form of self-emasculation.  

Regardless of those claims, the purpose of the law is fairly obvious:  it is a law designed to segregate transgender women from “real women”. 

The premise that there is some kind of threat is very similar to the arguments made to support Jim Crow laws.  Blacks were assumed to be “more violent/criminal/dangerous” than whites, and therefore needed to be kept apart from “white society”.  The irony is that the very act of segregation creates the preconditions for increased violence and criminal behaviour from the segregated population – something of a self-fulfilling prophecy.  

While the stated purpose of the law is a form of “public safety”, the underlying intent is actually twofold:  segregation, and humiliation. 

Contextual Analysis

Context here has to engage with legal context, as well as social and research contexts.  

The legal context makes it fairly clear that the law itself is both redundant, as well as a fairly clear violation of basic rights guaranteed under the Charter.  

It is redundant because we already have numerous appropriate laws for dealing with male sexual predators – the issue is in fact one of appropriate enforcement.  To date, I am unaware of any significant number of cases of male sexual predators cross-dressing to access their prey.  Signs don’t stop predators. 

As noted above, the law violates Charter Rights on the premise that transgender women are sexual predators.  This flies in the face of Canada’s general approach to law and justice matters where we hold individuals responsible for their actions, and do not assume that membership in a particular class of person renders someone a criminal.  

Then we have to examine the socio-political context of this law as well.  We live in an era where a “moral panic” has been whipped up around transgender people.  In general, moral panics seldom have any significant amount of reality attached to them – whether you go back to the era of the Witch Hunts, or fast forward to the more recent moral panic over Dungeons and Dragons, the claims made by those who were promoting the panic are never substantiated by actual evidence.

So, unless the government is sitting on a mass of really compelling evidence to justify this law, I think that there is a good argument to be made that a law of this nature in a situation where there is no evidence of the imagined harms actually happening is arguably invalid.  

The clinical and research evidence would strongly contradict the assertions used to justify the law.  There is considerable evidence to suggest that transgender women are far more likely to be attacked in public facilities than to be the attackers.  Last I looked, there is no evidence that suggests that transgender women are more likely to be sex offenders either. 

Textual Analysis

Written narrowly and specifically, the law will specifically target transgender people directly, and would be open to direct attack on the basis of assumed characteristics which the government would not be able to substantiate.  

Written broadly, the law would be subject to attacks for being written in such a way as to have significant perverse consequences that reach well beyond the stated intentions of the law.

If the law were written in such a way as to use language like “born female”, or “female on record of birth”, or similar wording, the resulting law would be open to challenge for placing an unjustified burden on all women under S28 of The Charter.  Arguably even if the law was written “sex on record of birth” (thus theoretically affecting both male and female persons equally), the burden would still fall more heavily upon female persons since the core of the “moral panic” at hand here is in fact targeted at transgender women. 

Additionally, there is an argument to be made that S28 needs to be interpreted more expansively to encompass transgender and gender non-conforming people.  Given the principle of protecting minority rights which is a major part of Charter interpretation, there is a sufficient body of existing case law to make an argument that S28 needs to be interpreted more broadly as well.  

Coming back around to the idea that these are “Jim Crow” laws, no matter how the law is written, it ultimately attacks a characteristic of the person rather than identifying actual actions that would be problematic.  The consequences of such a law are first to segregate transgender people from broader society, based on an imagined danger.  Second, the law itself is humiliating because it ends up forcing transgender people to take alternate steps to do something that others do not have to do.  For example, if the transgender person has to seek out a single user washroom or changing room, then it potentially marks them as a target for subsequent harassment by observers.  

The issue is not one of a person’s actions, but rather of the person carrying out an action while belonging to a social group that has been targeted by the legislation. 

Impact of Jim Crow Laws

If the same law was written to target members of a particular ethnic or religious community, it would be laughed out of existence before it got past first reading in the legislature.  The consequences of writing a “Jim Crow” law reach far beyond the direct impact of the law itself.  It sends specific messages to the targeted people that their presence in society is seen as a “problem to be solved”, and therefore can be argued that the law has implications far beyond the specific text of the law.  

Just as laws which required black people to use separate bathrooms, or water fountains really had very little to do with reducing any knowable risk to white people, the laws created an environment which pushed People of Colour (POC) to the margins of society.  The laws created a hostile environment for POC in terms of their integration with the broader society around them, with broad negative impacts range from economic to health.  

There is an argument to be made that anti-transgender laws have very similar effects.  In the case of a “bathroom ban”, let’s talk about its real impacts on the affected people.  

Denial of access to public washrooms and changing facilities affects the targeted population in ways that vastly exceed the claimed intent of the legislation:

• It discourages transgender people from using the bathroom when outside their own homes (including in businesses) out of fear that they will be confronted and or face charges as a result.   

• “Holding it” can have serious health consequences, starting at an increased risk of Urinary Tract Infections (UTIs), and progressing from there – especially if the bacteria involved colonize the body in a chronic manner.  This is a significant health impact. 

• It amounts to a de facto ban from using publicly owned facilities such as swimming pools and other recreation facilities which do not necessarily have single user changing rooms or bathrooms. 

• Health Impact:  This restricts the options available to the individual for exercise and fitness, thus making them vulnerable to major health problems later in life.  Exercise such as swimming may be prescribed/recommended by a doctor for reasons such as preserving joint function.

• The ban implicitly makes using a washroom in other contexts such as a restaurant even more dangerous because many in the public will naturally assume that such a ban includes washrooms in private businesses. 

• Businesses already reluctant to hire transgender workers will be even more so out of concern that other employees or members of the public will complain. 

• Social isolation – this type of ban also creates or exacerbates social isolation for the transgender person by first isolating them from the social components of otherwise routine activities.  People talk in locker rooms all the time – it’s normal socializing and just as important for transgender people as for cisgender. 

• Harassment – even if a facility has single user washrooms available, when the transgender person goes into that washroom instead of the regular shared facility they mark themselves for harassment by any observer.  So while there may be accommodations made, those very accommodations become a weapon used against the transgender person.  

•  Implicit message:  Your existence in our province is problematic, you shouldn’t live here.

But, such a law doesn’t just affect transgender people – it affects cisgender people too – and especially cisgender women:

• It subjects all women to an arbitrary standard of what is “sufficiently feminine” to be allowed into those spaces.   

• For all of the “we can always tell” crowd:  No, you can’t.  All you are doing is subjecting other people to your definition of “feminine”.  Someone who is too tall, or has narrow hips, or whatever is going to find themselves on the receiving end of your accusations – even when completely unjustified.  

• In scenarios where “proof” of being born female is needed, suddenly all women are obliged to carry around copies of their birth certificate (at a minimum) 

• In scenarios where “you must use the facility based on your sex-assigned-at-birth”, you have the additional problem of trans masculine people entering obviously feminine coded spaces (and plenty of trans masculine people do NOT look remotely feminine) 

Legal Issues of a Jim Crow Law 

That is just a few of the consequences of a “Jim Crow” law.  Let’s talk about the legal issues that raises, all of which are questions that would need to be put before a court.  Unlike a regular law, we have to recognize that at its core a Jim Crow law is fundamentally about segregation, which places it in a different place than regular laws that a government may pass.  So, while the government may wrap the law in any amount of language claiming that they are addressing some danger to the public, the underlying purpose of the law is in fact to isolate a group of the population from the broader society.  I’ve addressed this earlier in terms of the Purposive Analysis of the law. 

So, the first question we must address is this:  what are the characteristics of a Jim Crow law, and what tools might a court use to assess whether they are looking at a Jim Crow law.  

Broadly speaking, a Jim Crow law is any law which seeks to limit the activities of an identifiable group in society. Such laws generally are based on characteristics of the group, and limit the affected group in ways that (theoretically) do not apply to people who do not possess those characteristics. Of course historically, the attribute of choice was skin colour.  A second class of segregation law has existed in the past which criminalized the actions that are perceived to be unique to the impugned group (e.g. sodomy laws). In this second group of laws, the intent is to segregate by fostering public disgust over the action.   

Frequently these laws are built around assumptions of harm rather than objective evidence which supports the claims made to justify the law to the public in the first place. 

A Procedure For Evaluating Whether a Law is a Jim Crow Law

1.  Does the law directly (or indirectly) target a recognizable minority? 

This is fairly basic.  Regardless of wording, does the law as written create a situation where a recognizable minority is disadvantaged – either explicitly or implicitly.  This would be a fairly straightforward test relative to S15 of The Charter.

2.  Substitution Test

If the impugned characteristic is changed to another minority characteristic, would that render the law invalid under S15 of The Charter? 

For example, if you have a law which restricts transgender women from accessing a public washroom facility, would that same law be “reasonable” if it were written to apply to black women?  

3.  Universalization Based on a Characteristic Test

Does the law rely on the assumption that because of a particular characteristic that all members of the minority group are automatically problematic? 

4.  Actions Test

Does the law impugn the actions of a person based on their characteristics?  In this question, we are asking if the same action done by a person not part of the group with named characteristics would be impugned.

For example, a law which levied additional punishment on bearded men for being involved in a brawl would be attacking the characteristic of having a beard. 

5.  Supporting Evidence Test

Far too often these laws come along and nobody asks the obvious question of the politicians:  what is your objective evidence supporting this law as necessary?  

We’ve seen this with Alberta’s anti-transgender laws already.  There is a distinct lack of coherent evidence that supports the basis upon which the laws are written.  In fact, what evidence that does exist either contradicts the assertions of the Alberta Government, or is at best inconclusive.  

A lack of objective research evidence which supports the claims used to justify the legislation suggests that the intent of the law is based in something other than objective evidence.  This is a much more complex test, as in recent years we have seen a deluge of “evidence manufactured to support a policy” – one example of this is the now infamous “Cass Review” which trades in methodological errors to arrive at conclusions that support specific politically driven policies in the UK. 

7.  Are There Existing Laws Already?

If there are existing laws already which address the allegedly problematic behaviours, then one can reasonably assess that in fact the new law is not about addressing those issues. 

8.  Fails Oakes Test

Regardless of whether the Notwithstanding Clause (S33) has been invoked, the court should engage with the Oakes test to assess whether the law can be saved under the language of S1 of The Charter.  

A law which would fail a S1 evaluation under The Charter likely has elements which are significantly oriented towards segregation.  

9. Fails Examination Under S15(2) and S6(3)a 

Similar to the Oakes test, the court may consider whether the law can be “saved” under the terms of these clauses.   

If a given law is found to “pass” a significant number of these tests, it can be viewed as a segregation law and should be dealt with under the broader rubric of the law’s purpose.  A Jim Crow law is generally not going to be “saved” by any of the “escape hatch” clauses in The Charter.  Similarly, they tend to assume traits equal problems without proof that the problem actually exists.

Does A “Jim Crow Test” Create A Constitutional Limitation On The Law?

The short answer here is “no” – there is nothing specifically in The Charter or The Constitution which specifically prohibits such laws.  This test is designed to provide the courts with a series of questions which should help them address the question of whether or not a law is sincerely addressing a real issue, or is it actually a weapon being levelled at a group in society that is considered an “out group”.  This is a framework that is intended to help the judiciary objectively determine what they are dealing with, similar to the framework used by judges to identify Organized Pseudo-Legal Commercial Arguments (OPCA).

However, it can be used in conjunction with the kind of reasoning that the Attorney General of Canada has put forward in English Montreal School Board, et al v. Quebec Attorney General, which proposes that there are in fact natural limits to S33 in Paragraph 40:

Thus, a statute that invokes s. 33 to allow arbitrary executions or slavery would violate a constitutional limit, since such a statute would not be temporarily limited to maintaining the effect of the statute inconsistent with Charter rights or freedoms, but would immediately abolish the very conditions of a free and democratic society. (* Emphasis Added *)

I would argue that a Jim Crow test would enable the courts to appropriately identify laws which may be cleverly worded, but still have significant deleterious effects on Charter rights.  As I have argued in earlier pieces, The Charter contains the word “Guarantee” a dozen times, all in contexts which strongly suggest that the intent was always that laws that override Charter rights should be rare and limited.