There Is Much to Be Learned From Trans Rights

  • June 29, 2021
  • Angela Ogang, Newsletter Editor, Young Lawyers Division (Central)

I recently had an amazing conversation with Nicki Ward, a person who I have a great deal of respect for and who is well versed in the types of issues I wanted to explore in connection with trans rights as we wind down on Pride Month 2021. Nicki is an advocate and activist who has been very active in the trans community for well over 20 years. She is a former board member of The 519, a senior editor of Creating Authentic Spaces, and a leading light in shaping Canadian thought and processes around a number of LGBTQ-inclusive issues. Nicki has worked with many members of the legal profession in Canada over the years, including R. Douglas Elliot who argued the case at the Supreme Court for gay marriage, and she has had an instrumental role to play behind the scenes in the inclusion of gender identity and gender expression in the Canadian Human Rights Act, starting with Bill C-389, then Bill C-279, and ultimately Bill C-16. I really enjoyed our conversation and I hope you find it just as refreshing as I did. 

How would you describe yourself?

My name is Nichola Ward but most people call me Nicki. My preferred pronouns are she, her, they, and Your Majesty, which always gets my attention. I am an older woman and I came out as a trans well over 20 years ago. So, necessarily, I've been at the cutting edge of human rights, specifically as directly related to trans rights and women's rights, from the very get go. 

I'm relatively well educated and I had a job as a senior executive in the insurance industry. I was responsible for a large staff of people and a significant percentage of the insurance company's annual budget. I came out as trans and immediately went from an incredibly privileged position to one of third-class citizenship. I lost my job, I lost access to my children, and it was extremely difficult—close to impossible—to access housing. 

The reason I say third-class citizen and not a second-class citizen is because women are second class citizens in most societies, including Canadian society. They make less money, they have less access to resources, and there are fundamental barriers to growth that are put in the way of women over men. Men enjoy privileged status in society and by privileged, I mean not just earned privilege but also unearned privilege. So third-class citizen because trans women are considered second-class women, and that means that we have a double whammy: not only do we not have the so-called benefits of being second-class citizens, but many biologically cis gender women feel that we don't qualify as real women. 

You've talked about some of the challenges you encountered when you came out as a trans woman. Can you tell me how things changed with Bill C-16?

Prior to Bill C-16, there was no statutory protection for trans women or men at the municipal, provincial or the federal level. Up until 2016, it was actually legal to deny me housing, it was legal to fire me, it was legal to use my gender identity as prima facie evidence of my “inability to parent.” There was a reverse onus placed on me in that I had to prove that I was not a threat to my children merely because of my gender identity. Up until 2016, I could have even been thrown off a plane for not being a “real woman.” And if you deny someone the right to live peacefully, to form relationships, or to even earn a living, then the results are extremely poor. Unsurprisingly, death rates amongst trans people are absolutely devastating.

I have necessarily helped shepherd much of the legislation and the choice of language that we use at all three levels of government today, but I don't claim exclusive right to pushing the wheel of the law. It's my opinion that laws basically put shape to popular opinion or popular attitudes, and not the other way around. Bill C-16 was the combination of decades of work by myself and many others. It was tying a legal bow on a decision that had already been made by society by and large. Most people were astonished to find out that it was legal to deny a trans person a passport and access to a plane or a ship. 

The statutory changes that Bill C-16 introduced have not yet been tested in court meaningfully, but at least we have a piece of paper that we can point to and say: “This is not allowed.”