Below the Radar Transcript
Episode 12: Discussion on Trans Rights — with Adrienne Smith
Speakers: Melissa Roach, Maria Cecilia Saba, Jamie-Leigh Gonzales, Am Johal, Adrienne Smith
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Melissa Roach 00:07
You’re listening to Below the Radar, a knowledge mobilization project recorded out of 312 Main. This podcast is produced by SFU’s Vancity Office of Community Engagement.
Maria Cecilia Saba 00:17
Below the Radar brings forward ideas to encourage meaningful exchanges across communities.
Jamie-Leigh Gonzales 00:23
Each episode we interview guests on topics ranging from environmental and social justice, arts, culture, community building, and urban issues. This podcast is recorded on the unceded territories of the Musqueam, Squamish, and Tsleil-Waututh peoples.
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Jamie-Leigh Gonzales 00:42
This week Am Johal and Melissa Roach are joined by activist-lawyer-poet Adrienne Smith. As a non-binary trans person, Adrienne has been a key advocate for social justice and labour rights for all workers. They work pro-bono at the Catherine White Holman Centre providing legal support to trans and gender diverse folks, and they’re generally just a delight to listen to. So here it is.
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Am Johal 01:10
Thank you so much for joining us this week, we’re really excited to have Adrienne Smith with us, a human rights lawyer who also works with the Canadian Labour Congress as a regional rep. And I’m also here with my colleague Melissa Roach.
Melissa Roach 01:25
Hi, I’m Melissa, I also work with Am in SFU’s Vancity Office for Community Engagement and I’m so happy to be meeting you!
Adrienne Smith 01:30
Thanks so much for having me, it’s exciting to be here!
Am Johal 01:32
Adrienne, when I first met you, you were a spoken word poet, you were not yet a lawyer, and wondering if you could talk a little bit about your road to starting to do human rights law.
Adrienne Smith 01:49
It’s a long story. It started...I think my path as a lawyer and an artist and a poet and a labour activist is all caught up together in the same kind of threads. And I was elected steward for the garbage yard for the City of Burnaby sanitation department, where I was working which was how I put myself through my undergrad. It was a job that did not require all of my brain cells, and so I would write poems in the trucks during my breaks. And eventually when I came to do a Master’s degree, I applied jointly at English and Geography at UBC. And Geography has scientists in their department, so they also have funding. So I won a fellowship, I was able to go to grad school, and my thesis was a play about working class political identity, the epidemiology of cholera, and the performance of identity. And I feel like this whole creative writing, labour, social justice activism, set in this time when the factory system and industrialization was starting to happen, and the necessary counterpart of labour movement activism rose at the same time, and I think these two threads have grown up in me.
Adrienne Smith 03:04
But in the middle, like 2004? We had a big strike at UBC and I was the president of the teaching assistants’ union there. And I was very much struck by how labour really cherishes the roots it came from, and I think as a young activist I was quite dismissive about its potential to be a container for change and its relevance in the world moving forward. I’ve changed my view, I think I’ve aged into a deeper appreciation of what labour is now, but at the time I was looking for something very different, and I thought that was electoral democracy and I went to work for the NDP as a researcher in opposition in Victoria, and I had my heart broken every vote because I had such stars in my eyes and I thought “You know if we just make this question period question good enough, then the government will change” — of course, that’s not how it works.
Adrienne Smith 03:55
So with a broken heart I came back to the Downtown Eastside and got involved in not-for-profits and I worked at the Portland Hotel Society and did lots of basic front line social justice work and realized there needs to be yet another way. And at the time, what lawyers were training for was to sue right wing governments, so I learned how to do that and I got quite good at it, I think, and I got to sue some governments and the governments have changed! And now I’ve had to re-tool and think about how to collaborate with government and how to ask them in a way that they can understand how to make change.
Am Johal 04:32
Yeah, when you finished law school you went to work at Pivot Legal Society. I’m wondering if you can talk a little bit about the cases you took on there and the type of work that was there.
Adrienne Smith 04:43
Yeah, I’m grateful Pivot took a risk on me. They were looking for a three year call and they hired me out of my articles, I think in part because I had some experience in the neighbourhood already, and I was the health and drug policy lawyer there, and the goals for my campaign at Pivot were to have drug use issues framed as health issues, and to make sure that harm reduction and drug treatment and whatever basic health care, people who used drugs needed was available in their communities across the province.
Adrienne Smith 05:11
What that looked like in terms of litigation was a challenge to secure prescription heroin for a group of folks who were getting prescription heroin across town. It felt like my ‘researcher in the legislature, bright stars in my eyes’: if we could just explain this in a way that was coherent, the world would change. ‘Cause the outcomes for these folks were tremendous. They stabilized their lives, many of them got work and volunteer opportunities, some of their other chronic health care came under control just because of contact with the system and it was a devastating time under the Harper government to try and make change, and the only tool we had was litigation. Similarly we were fighting to get the needle exchange programs in prison, this was an Ontario case. We were challenging mandatory minimum sentences and of course struggling to make sure that Insite continued to be accessible and available. And I think the mandatory minimum sentence piece is the last, really critical piece of work that needs to be done, ‘cause it sounds like the Trudeau government isn’t going to overturn these based, ‘throw the book at them’ Harper-style sentencing regimes. And for people who use drugs or who come before the court as a result of their addictions, these are really just unconscionable sentences, and we’re not gonna arrest our way out of any of the issues surrounding drug use in the community.
Am Johal 06:35
With the human rights sort of… approach and background that you have, as you’ve been much more of an advocate on transgender rights, how would you sort of characterise the possibilities and limitations of a kind of human rights approach to transgender rights?
Adrienne Smith 06:57
I have a more thoughtful critique of the human rights regime in British Columbia than I did before I started doing this work, but maybe I’ll start by talking about why I do this work.
Am Johal 07:06
Sure, sure.
Adrienne Smith 07:07
I’m a non-binary transgender person. And I say that, this makes me a member of my community, but I’m also mindful that I’m a white settler with far too much education, and I’m often invited to speak on issues like this. And there’s a lot of privilege that surrounds me, and I think that’s the reason why it’s necessary for me to be an out-trans person and insist that people use my gender-neutral pronouns and just stand up and say “I’m a trans person” because I know that lots of other folks in my community can’t because their lives would be in danger. I think that the low level of death threats that I get is a fair tax on my privilege as is the work that I do in the community.
Adrienne Smith 07:48
So what I’m working on now mostly is, I mean when I’m feeling sarcastic, I feel like I’m a well-behaved trans person professionally. But, I mean, there’s some very important education work that I’m doing right now, particularly in the labour movement which is thrown open its eyes and its mind to really find out how we can better include trans people in our workplaces and our unions. But also I’m doing a whole hell of a lot of pro bono legal work for trans people.
Adrienne Smith 08:16
You asked me about the human rights regime?
Melissa Roach 08:19
Yeah, I also had a question…
Adrienne Smith 08:21
Yeah, let’s have your question first!
Melissa Roach 08:23
The work that you do, pro bono. When your preferred pronouns and your identity don’t match up with your legal documentation, how does that play out in the system? Is that ever respected? Maybe that’s a pessimistic way of putting it…
Adrienne Smith 08:36
For me, or for my clients?
Melissa Roach 08:37
For anyone. Yeah, if you could speak from your personal experience too.
Adrienne Smith 08:40
Well we saw this in a recent human rights tribunal case called Dawson — Angela Dawson, who many of our listeners may know. She goes by Roller Girl and likes to drug traffic. There was a human rights tribunal case about her when the Vancouver Police arrested her, used her dead name and used masculine pronouns for her repeatedly. They also denied her access to some critical medical health — medical care while she was in custody. And the human rights tribunal found that this misgendering, even when...this misgendering is a human rights violation, even when a person hasn’t legally changed their name, which is amazing and huge…
Melissa Roach 09:14
That is huge.
Adrienne Smith 09:15
Because Angela’s documents had incorrect gender markers and a different name for her. We often find in an employment setting employers saying “Oh well, once you change your name legally or once you’ve had surgery and you’re trans enough, then we’ll accommodate you and we’ll make this place safe.” We need to make changes to include people way, way before that. So folks in the legal system, as a lawyer who represents trans people, I have a conversation with them and I ask them what their pronouns are. And then I ask them a critical second question, which is “Who do you want to be in front of that judge?” Because somebody might be really clear being an out trans-feminine person to me, but when we go into court for their family law case they’re going to be Mr. Jones or Mr. Smith or dad, which is heartbreaking and reminds me every day that gender expression — which is separately protected in the human rights code — is separately protected for a really important reason.
Adrienne Smith 10:10
Because it is one thing to have an identity, to feel what your gender is. But to people to wake up in the morning and put on, really, armour for the world and pick your clothes that express your gender, that’s something not everyone has the power and privilege to do. And I’m thinking of a client of mine who works in allied law enforcement, and she would very much like to put some stud earrings and grow her hair the one inch below her collar which is allowed for women in her profession. But she’d have to tell her employer that she was transgender to do that, and that would expose her to violence from her co-workers and her clients, and it’s just not possible for her to do. And that kind of basic workplace dignity, that needs to change.
Melissa Roach 10:52
Yeah, those questions are so..such a small token to someone.
Adrienne Smith 10:57
And I think that dovetails, actually, into my critique about the human rights system which is that in British Columbia at the moment, in the absence of adequate legal aid for human rights cases, all the burden falls on the aggrieved person who’s had a violation happen, their human rights have been violated in some way, and they are responsible for bringing the case and defending it over 12 to 18 month or longer process, without legal support largely. And all human rights cases in British Columbia have, as part of them, a mandatory re-settlement process, when the person who’s alleged to have violated the human right offers the victim a sum of money to go away, and these are all covered by a non-disclosure agreement. So the public doesn’t benefit from learning about what these things could cost, and it could be factored into the cost of doing business for human rights violators in a really unconscionable way, and I’m quite hopeful that the new human rights commission will do lots of the education work that’s necessary, but I think supporting human rights complainants is something that needs to change in British Columbia as well.
Melissa Roach 12:02
Yeah. Just buying your way out of those kinds of terrible violations just seems...something I never would have thought of that people would count on that.
Adrienne Smith 12:10
Yeah, complainants can never talk about and neither can alleged violators, and there’s never a finding. People don’t get the satisfaction and the justice that they’re looking for when they come to the human rights system.
Am Johal 12:23
Now in terms of the realm of the labour law, for example, what are some directions that legal cases in precedent have taken? I assume principles like duty to accommodate and other areas come up for you as a lawyer in terms of arguing cases.
Adrienne Smith 12:41
There’s an interesting precedent that lays out a union’s obligation not to discriminate. It comes out of a case from a union that has become Move Up. It was COPE 378; before that it was COPE 15. And it has to do with an office where there was a taxi driver, a series of taxi drivers, two women in the office who ran the office and did dispatch. One of the was a cisgender; that’s to say, not trans woman. The other woman was a trans woman. And the union rep got a call from the employer saying someone has complained about this trans woman using the women’s bathroom. If that call came to me today, I would tell the employer to settle down and that’s perfectly acceptable, and this woman has the right to use the bathroom. That’s not what the union rep did. What he did was get concerned that this was a women’s issue and perhaps this trans woman would like woman steward and not the normal steward. So he called this steward, not think there were two women in the workplace and one of them had complained about the member using the bathroom. It turned out to be this replacement steward, so he also didn’t call the member. So the employer, the steward and the member sat down. Or, the rep sat down, the member didn’t come. The employer subsequently disciplined her for not coming to an investigation meeting because no one had told her. And as often happens when trans people experience workplace difficulties, she went off sick and never came back to the workplace. And her collective agreement issues were solved in arbitration, but the subsequent human rights case that came against the union found that the rep had a duty to not discriminate her and that he had, and there was a $5,000 fine to the union and this is substantial, and it’s quite useful for me to talk to people who are like ”Well, I don’t get your identity politics and I’m not playing your funny pronoun game.” I can say “Well fine then, it’s very expensive.” (laughs)
Adrienne Smith 14:32
So just telling people that they have a base responsibility, I think lots of trans inclusion in the workplace has been framed as a duty to accommodate and I think that’s the wrong way to move forward. I don’t think trans people are disordered or disabled in any way. I think trans people are part of the fantastic and delightful variety of human existence, but we inherit this duty to accommodate and it does give some protection, it gives protection to people across all grounds, predominantly we see this in the workplace under religious grounds and for birth parents. But for trans people it’s language that labour activists understand but to talk about what steps we need to go beyond that and be proactive. There’s a fantastic little guide book put out by the Canadian Labour Congress called “Workers in Transition”, which is a good starting place for folks who are building a transition plan for a trans person. I’ll also refer people to the Trans Rights BC webpage, which is a web tool that was law foundation funded and it was a joint project between Vancouver Coastal Health and the Catherine White Holman Centre, which was meant to be a clearing house for basic legal information for trans people. And we polled the community and asked them what they wanted. They wanted information on things like going out in public, education, health, prison, sex work. So there’s a list of what your rights are, there’s some mortifying videos of me that my mother thinks are cute but I’m mortified about telling people that they don’t have to talk to the police, and a list of references to agencies that can actually give on the ground support for folks. And particularly for trans people outside of the Lower Mainland, it’s a really critical tool.
Melissa Roach 16:11
Yeah, that’s wonderful.
Adrienne Smith 16:12
Those two pieces, one for the workplace, and one for more broadly.
Melissa Roach 16:15
We should...we will link to those in our episode description!
Adrienne Smith 16:17
Excellent! You will find those in…
Melissa Roach 16:19
You can find them in the show notes! (laughs)
Am Johal 16:22
I was gonna ask a little more if you could talk about the Catherine White Holman Wellness Centre. You mentioned it, and what are the other things that happen there and what they do?
Adrienne Smith 16:31
Yeah, the Catherine White Holman Wellness Centre started as a student nurses project to deal with the tremendous barriers trans people have accessing health care, not just because all medical records are binary. We know a woman who has a hard time getting a prostate exam. She’s a trans woman, she changed her name, she’s changed her gender marker, she still has a prostate that needs to be examined. But an MSP billing code prevents this service from being billed to her, so they have to check her in as John Doe in order to do this part of the exam, which is not at all gender affirming. So baring all of these issues in mind, this clinic began. It’s entirely volunteer run, mostly by trans people and for trans people. And it started with a mandate of explicitly including people without documents so that folks could get health care without handing a service card. Increasingly other allied health care join the centre, things like nursing, nutritionists, massage therapy, counselling — which is particularly critical for my community.
Adrienne Smith 17:33
I’m the legal department there, we also have a volunteer immigration lawyer who will help folks, predominantly with refugee applications for folks. We’re seeing lots of folks fleeing the United States now and coming to Canada and looking for a way to stay and a way to be safer, and I will offer people 30 minutes of free, summary legal advice. Mostly what I do there is notarize name change forms, because people need to have this and many lawyers will charge more than $100 for this, so I do them for free. I think it’s unreasonable that a lawyer needs to certify who you are or a doctor needs to say you’re trans enough for a gender change, but these are the forms we have and I have expressed these views to government. But mostly I notarize name change forms and I get to be part of people’s big day when they get to say good bye to a name that doesn’t describe them at all and apply to get foundational documents. So when they’ve amassed enough money, they’ll be able to get all of their ID in their proper name and gender.
Am Johal 18:34
Now, you see some provinces and states where there’s moves from a public policy point of view to move towards not defining gender, or having X as a gender marker. Wondering if you can speak a little bit to the dynamics of that and the limitations of it, and what are the challenges in government in terms of what’s working and what’s not.
Adrienne Smith 18:58
Yeah, we have, for a long time and really without thinking about it, defined the world in terms of binary gender and we conflate sex and gender. So we think people who are assigned male at birth will adopt a masculine gender and identify as men, and we think that people assigned female at birth will adopt a feminine gender and identify as girls and women. That’s not true for trans people. It can be muddy and people can identify in a binary way, or like me, I’m a non-binary person. I don’t identify with either side of the binary, so all of my British Columbia ID has the letter that I was assigned at birth — doesn’t describe who I am, and whenever anyone looks at my ID I get misgendered. And, I mean, for a middle class lawyer it’s one thing — it’s annoying. But for folks who can be exposed to violence as a result of those disclosures, it’s possible to put someone back in the closet once they’ve been outed. So in the same way that we no longer ask your father’s occupation on the long form register of birth, there’s some community advocates who are saying that it’s no longer necessary or accurate to record gender information, and there’s two opposing poles on what to do about this problem.
Adrienne Smith 20:05
One group says “Let us have an X or a U or a T as an additional option” — which administratively for the government is easier because you just add another radio button (laughs) — and others say “Let’s remove it entirely.” So the Ontario health card, for example, doesn’t have a sex marker on it, although they do record these things when infants are registered. And British Columbia is one of those jurisdictions that just introduced an X and it is optional. Another argument that people had was this, that folks who are arguing to remove sex markers — and they are organizing as the Gender Free ID Coalition, your listeners can Google them, they’ve got a webpage — they say that the X is dangerous and it exposes people as somehow strange.
Adrienne Smith 20:52
Opponents of that perspective, particularly sex workers in Montreal, say that they need to have an F so that they can prove that they should be able to access women-only social services, which I think is a problem with how we’re policing social service access, and not so much with the gender marker. I personally would have preferred not to have a letter, but given that there is an X, I want this program to function properly and to be well integrated with government so that even after folks have gone through the hoops of changing their gender marker and paid the fee and replaced all their ID, they’re not accidentally misgendered when they go to the doctor or the hospital or a school or register for university.
Am Johal 21:32
And it seems also with other parts of the provincial government, for example, access to health care for transgender people, it seems to be very uneven in terms of where you might live geographically or what province you might be, and I’m wondering if you can sort of outline some of the big issues depending on where people are living and what’s coming up as a public policy piece that’s able to be moveable right now or where the really big things are stuck right now.
Adrienne Smith 22:01
Yeah, absolutely. I think the trans health care act says barriers are coupled with trans access to justice issues, because it’s an encounter with government in a number of ways, and there’s lots of access to all of these things in Vancouver. You can walk into Catherine White Holman Wellness, you can call Trans Care BC and find a doctor in your area who’s accepting trans patients who will make some of these referrals to an endocrinologist or get you on the surgical waitlist — if you’re in Vancouver. There hadn’t been services outside of Vancouver for a long time, and it used to be that all trans health care was administered by Vancouver Coastal Health, and if you didn’t live in the catchment area, you needed a special referral.
Melissa Roach 22:42
You mean for all of BC or for all of the region?
Adrienne Smith 22:44
For all of BC.
Melissa Roach 22:45
For all of BC?
Adrienne Smith 22:46
And for people who need genital reconstruction, there’s only one centre in Canada that does those, so everybody in the country is referred to this private surgical centre in Montreal. Our government has just made an announcement, just before Christmas, that we will be establishing a BC surgical program. So top, upper body and bottom, lower body surgeries will happen in British Columbia — and they’re not all happening in Vancouver. There’s gonna be some of these services — there’s already a raft of surgeons on the Island who are doing great service for folks on the Island, many people from Vancouver are being referred to the Island ‘cause that’s where the waiting lists are moving, but also the option for surgery in places like Prince George and Kamloops. It’s tremendous, because people should be able to access health care in their communities where they got social support and their family doctor and all the medical professionals in the province need to understand trans health and need to understand trans people, not just so that we can be treated with respect, but if something goes wrong, people understand what’s happened.
Melissa Roach 23:50
And will those surgeries be covered financially for people, too?
Adrienne Smith 23:53
Yes...
Melissa Roach 23:54
Excellent.
Adrienne Smith 23:54
They’re gonna be covered by the Medical Services Plan. There’s still a problem that if you can pay out of pocket, you can skip the queue and have surgery tomorrow. I needed MSP to pay for my chest reconstruction, and with the administrative issues that plagued government the past eras of right wing governments have not supported trans health. In fact, they closed the one centre that was required to refer people out for surgical care when I started to investigate this process. I’ve waited about 10 or 12 years to get my chest reconstructed…
Melissa Roach 24:26
Wow.
Adrienne Smith 24:26
And I was fortunate to have it paid by MSP and I was extra fortunate to be able to do it in the community where I live. But I live in Downtown Vancouver, and that should be a story that everybody who needs this kind of procedure can access if they wanted.
Melissa Roach 24:39
Yeah, for sure.
Am Johal 24:41
Yeah, in terms of access to the legal system, there seems to be some movement and public agencies and bodies, but there’s also a problem of the broader culture where, you know, things get adjudicated in the law or around government. But in terms of day to day life and the culture that there is a huge amount of discrimination that trans people face, and I’m wondering where you see advances and where things are also challenging there as well for people on a day to day basis.
Adrienne Smith 25:12
It’s a good question because trans people, like any members of marginalized communities, consume much more law than more privileged people. And they consume it at, or are faced with it at administrative tribunals. Predominantly we see them at welfare appeal boards and workers’ compensation and the human rights tribunal. And generally tribunals are run by well-meaning people who have set up a system that operates to a certain standard, but some of these basic barriers that folks certainly in this community in the Downtown Eastside would face with basic literacy and access to computers and the ability to frame your problem in small blocks of text that you need to enter — I’m gesturing wildly — are problems for us.
Adrienne Smith 25:57
And for human rights complainants there’s nobody to help people draft their initial complaints. Once you’ve passed a certain stage in the human rights complaint process, and if there’s room, there’s a human rights clinic that has provincial funding that can assist people. And what people don’t need more of, really, is what I’m able to provide. I give summary legal advice, and I tell people “This is the nature of your problem, these are your options, there’s nowhere I can refer you that can help, this is what it would cost to file something in the BC Supreme Court, you can file something in the human rights tribunal, I will find some time to look over your complaint and make sure that it asks for the things that you’re looking for…” but we really need front line lawyers and paralegals to prepare them and support them, ‘cause this process is so long and the burden really falls on the person who needs an advocate more than anything.
Adrienne Smith 26:51
I think also trans people, because of the way that our community is excluded from lots of employment situations. Lots of trans people are involved in grey market economies to try and survive, and that work is often criminalized. So lots of criminal charges, lots of low-level and often higher-level, rising to the level of assault, harassment from private security and from police and from private citizens are common place, and it is not unusual for me to sit down with a group of trans people and explain this ‘know your rights’ workshop and they don’t really believe me that it applies to them, because that’s not what their lives have shown. I think the message to take away from that is that we can change the law and make it say all kinds of things. So trans people are now explicitly protected in human rights legislation across the country. We need to make that real for people and there needs to be a system of protecting those rights that isn’t the one we have now.
Am Johal 27:52
Right.
Melissa Roach 27:53
That is a bit of a positive note to end on (laughs). I actually was up in class earlier today and I went into a washroom at SFU inside where it said like ‘don’t dispose of your feminine, in air quotes, ‘feminine’ hygiene projects. Someone had crossed it out and wrote ‘menstrual’. And it’s like yes. Not just women have periods and it set the mood right for me today to come chat with you (laughs).
Adrienne Smith 28:18
I was in a Labour Council meeting yesterday and the representative from the United Way of the Lower Mainland stood up and spoke to these largely masculine-presenting delegates about the Period Promise campaign that they have to make menstrual products available in every place and to have employers start treating it like toilet paper as something that we need to provide. And for people who don’t menstruate, this is a huge deal! ‘Cause people can’t, like you can’t go without this product or you bleed through your clothes, or you just can’t leave the house…
Melissa Roach 28:47
Can’t be done!
Adrienne Smith 28:49
Massive, massive access to basic social services and dignity. And it’s so understated and so difficult for particularly street involved people and very poor people, working poor. This stuff is not cheap and it’s not available, and just to have this United Way representative talk to these, really brothers, about why this was important. And for that room to be nodding its head in agreement, that’s a testament to how far we’ve come as a society and as a group of people. It gives me lots of hope.
Melissa Roach 29:21
Very cool.
Am Johal 29:23
Adrienne, thanks so much for joining us and for the great work that you do, and we look forward to following all of these issues and advances as they happen, thank you!
Adrienne Smith 29:33
Thanks very much!
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Jamie-Leigh Gonzales 29:35
That’s our episode of Below the Radar. Thanks for listening, thanks to the producers, and thanks to Davis Steele for composing the music for this podcast. Be sure to give us a like on Facebook and tune in next time.
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