There’s a name I want you to commit to memory: Bianca Lovado.
A transgender woman, she spent the latter half of the 2010’s moving in and out of British Columbia’s jail and prison systems. For much of that time, she was housed in facilities designated for men.
Seeking a legal remedy, Bianca filed a human rights complaint against B.C. Corrections in 2018 after the province denied her application to transfer from the Surrey Pretrial Centre to a women’s prison. But then, in November 2019, before her complaint could be adjudicated by the British Columbia Human Rights Tribunal, Bianca died.
She would not know justice in this life. And she deserved better.
Bianca Lovado. Remember her name.
“Legal interpretation takes place in a field of pain and death”
That’s how the late great Robert Cover, at the time of his death the Chancellor Kent Professor of Legal History at Yale Law School, characterized things in his now-famous essay, “Violence and the Word.”
He meant a few things.
When a judge decides a case, the losing party might lose their home, their liberty, even their life. And when legal interpreters do their work, it is often in such a way that they thereby condone either past or future violence. How often, after all, is the hyper-securitization and over-incarceration of Black and Indigenous peoples in this country framed as something that can be reformed out of being, instead of as the feature of the settler-colonial state it in fact is?
Canadian law deals in pain and death precisely because it deals in judgment. Encoded into the adversarial system at the heart of Canada’s courts is an abiding commitment to the “justice” of confrontation and violence, be it a confrontation between one member of the public and another or between the state and an individual. Someone has to win, which means someone else has to lose. And very often, the defeated party loses everything.
Legal violence is everywhere
Canada’s conservative governments are trying to legislate the country’s trans communities out of existence. That’s the motivating vision, as I’ve written before, behind moves like Alberta’s recently unveiled triptych of anti-trans bills. The legislation targets trans children because they are future trans adults: if the government can regulate them into a perpetual closet, trans communities have no future in this country.
Now, it would be wrong to call such legislative actions unprecedented. Settler governments in what is now Canada have been honing their ability to suppress and destroy undesirable populations since colonization began here. And they’ve been targeting children and youth—as both supremely vulnerable persons as well as supremely powerful ones, the latter insofar as they represent the promise, or threat, of becoming tomorrow’s adults—for much of that time. The residential schools program is the most infamous example, of course, but we could cite the ongoing violence of the child welfare system, as well.
And while we should be careful not to compare one horror to another as if they exist in a competitive relationship, it is worth noting the historic and contemporary parallels between acts of violence to make a simple point: violence is everywhere in the legal system—it was everywhere yesterday, it is everywhere today, and it will no doubt also be everywhere tomorrow.
The limits of law
In the wake of the anti-trans laws and policies enacted or proposed in Alberta, Saskatchewan, and New Brunswick, a laundry list of legal advocacy groups have come forward to fight for trans rights in court. And I myself have been quite supportive of those efforts.
But as the anti-trans political agenda in this country takes concrete shape in our provinces’ legislatures, I find myself with some lingering doubts about the degree to which the law can or should be our saviour.
Indeed, can Canadian law aspire to being anything other than a mere tool by which the powerful oppress and marginalize the vulnerable?
After all, even the Charter of Rights and Freedoms, that great statement of our country’s aspirations for civil society, contains within it a legislative override, popularly known as “the notwithstanding clause,” that allows electoral majorities to void the rights and liberties of minorities. And there is little, if anything, that courts can do to hold that veto power in check.
In a country with a constitutional notwithstanding clause, is there any future for trans rights at law?
I’m not giving up on law yet
I don’t know how the ongoing legal fights over trans rights in Alberta and Saskatchewan will turn out. I don’t know if the Canadian public will elect a Conservative federal government in the next election that will rollback trans rights nationally. I know how I hope things unfold, but that’s just a hope.
What I do know is this: Canadian law is but one tool for those seeking to counter cis-heteronormative violence, and it is arguably a weak one.
Now, if all you know how to use is the hammer of the law, as is the case for most lawyers, then the law will seem like the solution to every social ill. But not every problem is a nail.
After all, Canadian law is incredibly adept at assimilating critiques and translating those critiques into reformist proposals that perpetuate, indeed that solidify, law’s hegemonic rule. That’s why, for example, we’re never going to solve the over-incarceration of Indigenous peoples through more refinements to Canada’s criminal sentencing regime.
But this doesn’t mean we should give up on the law entirely.
There are some things that Canadian law is very good at doing. It can be leveraged to achieve individual victories for specific people in particular circumstances.
A good lawyer might be able to keep her trans woman client out of a prison designated for men; doing so does nothing to counter the systemic violence at the heart of the carceral system, but it is still an important win for that individual.
And maybe that’s the key takeaway for the ongoing struggle for trans justice. Systemic justice for Canada’s trans communities requires a more just Canada than the one Canadian law is equipped to provide us. The fight for trans justice will not be won in Canada’s courtrooms; it will be won on Canada’s streets and—I can only hope, the committed democrat that I am—at Canada’s ballot boxes.
It makes me sad beyond words that Bianca Lovado didn’t get to experience the particular justice that Canadian law can deliver. I can only hope that those of us involved with the law can ensure that that justice is available to others in similar positions, even as we lift our eyes towards the horizon and dream of a better world.
Remember Bianca’s name. And fight for those still with us.
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