Human rights instruments are but one of many legal advocacy tools used by trans people. Recent legal scholarship emphasizes that human rights laws are not sufficient to address legal challenges facing trans people, particularly intersectional and systemic barriers. This article looks to Canadian trans case law outside of human rights law to reveal the many instances in which trans people’s fight for legal recognition and redress occur outside of the human rights arena. It focuses on trans case law in three areas: family law, the use of name and gender in court, and access to social benefits. Canadian trans jurisprudence illustrates that not only are trans legal strategies outside of human rights plentiful and effective, they are also imperative. An agile and pragmatic approach to trans rights is necessary, particularly when minority rights are under threat, and for trans people on the margins of trans law reforms.

The Divorce Act, 1968, provided no-fault divorce for the first time. It also included a list of fault-based grounds for divorce. In addition to the traditional grounds, a spouse whose wife or husband had “engaged in a homosexual act” during the marriage could petition for divorce. This novel provision was aimed at giving husbands a way to divorce their lesbian wives. A close reading of the resulting jurisprudence and surrounding context shows not only that courts struggled to define the homosexual act between women, but also that the legal history of lesbian women differs from that of gay men in a number of respects. Notably, male homosexuality was regulated primarily through criminal law. In contrast, when parliamentarians specifically addressed lesbians, they turned their minds to the family and family law.