Legal Barriers to Access: Canada’s Trans Health Care Crisis

Contributed by Stephanie Kay

Introduction

In June 2017, Bill C-16 amended the Canadian Human Rights Act’s list of federally protected grounds to include “gender identity” and “gender expression.” At the time of Bill C-16’s enactment, virtually every provincial and territorial jurisdiction in Canada already provided explicit human rights protections for transgender people. Bill C-16 aimed to “protect individuals from discrimination within the sphere of federal jurisdiction” due to their gender identity or expression, including within health care settings. However, over five years later, transgender and non-binary people in Canadian jurisdictions continue to experience a multitude of complex and discriminatory legal barriers

According to a recent research report published by the Department of Justice Canada, identity documents (ID) that do not correspond with a person’s identity can significantly affect their overall health and well-being. Providing transgender and non-binary people with access to accurate IDs is an essential step in protecting them from discrimination and treating them with dignity and respect. This article explores the need for legislation in Canada to go beyond the legal recognition of transgender and non-binary people through accurate IDs (e.g., passports, health cards). These laws should also advocate for comprehensive and accessible gender-affirming health care for these communities.

Québec’s Bill 2 & Legal Recognition through Identity Documents

Initially introduced in October 2021, Québec’s Bill 2 was met with backlash from many transgender advocates. Others highlighted a lack of consultation with members of the 2SLGBTQIA+ community who this piece of legislation would directly impact. The amended version of Bill 2, adopted in June 2022, addressed these criticisms by removing the requirement for proof of gender-affirming surgery to modify one’s gender marker on official identity documents. Bill 2 also allows people to select the non-binary gender marker X, instead of F or M. 

It is well-established that having access to IDs that match an individual’s gender identity can seriously impact their overall quality of life. Given this, all provinces and territories have committed to allowing transgender and non-binary people to change their gender markers. In Ontario, non-binary gender markers have been available for provincial documents, such as birth certificates and driver’s licenses, since 2017. Federal documents in Canada have allowed citizens who do not identify as either female or male to list their gender as  “X” since 2019. However, the reality is that each jurisdiction across Canada has “different onerous, elaborate application requirements and processes,” for changing gender markers and names. Navigating these time-consuming and resource-intensive processes can pose a significant barrier to transgender and non-binary people. 

Additionally, when an individual’s IDs do not reflect their name or gender identity, it is more than a mere inconvenience. IDs are a structural determinant of health because they impact a person’s ability to access adequate health care and other social services (e.g., banking). In fact, accurate IDs promote positive mental health amongst transgender and non-binary people. While legislation like Bill 2 has laid the groundwork for improved legal recognition of transgender and non-binary people in Québec through IDs, more progressive legislation is still needed to address the systemic barriers these communities face in accessing health care. 

What is Gender-Affirming Health Care?

Transgender and non-binary people experience inequities when accessing all forms of health care in Canada. Many gender non-conforming folks report mistreatment, neglect, and abuse by health care professionals, which can prevent or dissuade them from seeking essential health care services in the future. Gender-affirming health care is crucial for members of the transgender community as it “holistically attends to transgender people’s physical, mental, and social health needs and well-being while respectfully affirming their gender identity.” Gender-affirming health care goes beyond just transition-related care and focuses on providing transgender and non-binary people with an affirming experience in all health care encounters.

Similar to how processes differ for IDs across jurisdictions, the ability of Canadians to access gender-affirming health care depends greatly on their province or territory and whether they live in urban or rural areas. The coverage and funding for gender-affirming health care, such as surgery and medications, vary significantly across Canada. The disparity between jurisdictions in terms of the quality and availability of gender-affirming care further perpetuates the barrierstransgender and non-binary Canadians face within the health care system. These barriers would decrease if provinces and territories committed to improving overall access and coverage of medically necessary gender-affirming health care. Except for Yukon, most jurisdictions in Canada place an “undue burden” on transgender and non-binary populations who often require gender-affirming health care.

Yukon Case Study: The Need for Comprehensive Coverage across Canada

In March 2021, the Yukon government announced changes that would significantly improve access to gender-affirming health care. Yukon’s newly expanded health care insurance coverage was heralded as the “gold standard” for members of the transgender and gender-diverse communities. This comprehensive coverage aligns with the World Professional Association for Transgender Health’s internationally recognized standards of care for effectively supporting individuals undergoing gender-affirming health care. The policy announcement highlights that gender-affirming procedures such as voice therapy and facial feminization surgery are “not cosmetic and are life-saving for transgender people.” Yukon’s announcement also acknowledges the delay or denial of “transition-related health care can cause significant harm.” 

In Canada, Yukon’s gender-affirming care policy is the most comprehensive of its kind. However, transgender and non-binary Canadians as well as advocates are calling on the federal government to implement better gender-affirming health care coverage across the country. In recent years, the evidence regarding the importance of gender-affirming care for transgender and non-binary people has grown exponentially. The data supports the connection between gender-affirming health care and improvements in mental health outcomes and overall well-being. However, it is not enough for just one of Canada’s thirteen provinces and territories to adopt a progressive gender-affirming health care policy. In order to ensure equitable health care access for all transgender and non-binary Canadians, other provinces and territories should follow Yukon’s lead.

Conclusion

In 2017, Canada’s Bill C-16 intended to provide equal protection under the law to transgender and non-binary people. Five years later, Québec’s Bill 2 introduced ‘X’ gender markers. While both are steps toward the inclusion of transgender and non-binary people, legislative work is still required to support these communities in Canada effectively. Transgender and gender-diverse people in Canada continue to experience substantial barriers to accessing gender-affirming health care. 

From difficulty changing gender markers on health cards to inadequate public health coverage for gender-affirming care, these marginalized communities often have few viable administrative and legal remedies to tackle barriers within the Canadian health care system. Canadian policymakers and legislators should go beyond creating laws and policies that legally recognize the existence of transgender and non-binary people. Instead, policymakers and legislators should work to reduce the significant burden placed on transgender and non-binary people by the health care system they rely on to access various forms of gender-affirming health care.Word Count: 1138 words

Stephanie Kay is the Senior Online Editor of the McGill Journal of Law and Health. She is currently in her second year of the BCL/JD program at McGill University’s Faculty of Law. Before starting law school, Stephanie completed a Bachelor of Health Sciences (Honours) at McMaster University and worked in communications.

More Beds, Better Care Act 2022: Ontario’s Recent Passing of Bill 7

Conrtibuted by Peter Soliman

Ontario’s Healthcare Crisis

With record-setting hospital wait times and emergency departments closing their doors for hours at a time due to staffing shortages, Ontario’s healthcare system has been experiencing severe strain. Without a doubt, COVID-19 has exacerbated this strain, as the healthcare system struggles with a shortage of family doctors, a lack of walk-in clinics and an unprecedented number of nurses leaving the profession. Ontario Health statisticsshow that, on average, patients spent 20 hours in the Emergency Department before getting a bed in a ward. Emergency Department overcrowding and wait times are linked to many overlapping factors, one of them being patient discharge backlogs caused by a shortage of hospital beds and home-care support. The lack of beds available for acute care patients produces a cascade of adverse effects on hospital systems’ overall efficiency and functionality. In an effort to address this issue, the Ontario government introduced amendments to the existing Fixing Long-Term Care Act (‘FLTCA’) by implementing Bill 7 – the More Beds, Better Care Act 2022. But what were some of the factors that drove the government to make this amendment? 

Long-Term Care Homes & Alternate Level of Care

Every year, Ontario’s long-term care (LTC) homes provide 24/7 nursing care and support to more than 115,000 people and their families. Licensed and funded by the Ministry of Health and Long-Term Care, LTC homesstrive to provide a safe environment and compassion-oriented assistance for people who may have difficulty directing their care. 

Patients occupying a hospital bed but not requiring the intensity of resources or services provided in that care setting are designated as requiring an Alternate Level of Care (ALC) by an attending clinician. An ALC designation can be given once the patient’s care goals have been met, progress has reached a plateau, the patient has reached their potential in that level of care, or an admission occurs for supportive care because the services are not accessible in the community. The patient can be discharged or transferred to various locations depending on the need, one of those locations being a long-term care home.  This ALC designation does not apply to patients waiting at home, in an acute care bed/service waiting for another acute care bed/service, or waiting in a tertiary acute care hospital bed for transfer to a non-tertiary acute care hospital bed (repatriation to community hospital).

The overcrowding of hospitals by ALC patients continues to be a critical challenge for Ontario hospitals.Looking at Ontario’s health data, as of August 17th, 2022, there were approximately 5930 ALC patients inhospitals. As of May 2021, there were about 38,000 people on the waitlist to access a LTC bed in Ontario, with the median wait time being 171 days for applicants. These wait times exacerbate the effect of emergency department overcrowding and bed shortages, decreasing available resources for patients in need of critical care. 

A shortage of community-based care has evidently made hospitals the default place for many elderly patients in Canada. In fact, many LTC patients are not actually waiting for long-term care. Instead, they are waiting for another type of care, such as rehabilitation or complex continuing care, for which all hospital beds are full.  Other LTC patients in understaffed hospitals may not need medical assistance anymore, but remain as spaces in LTC homes are scarce, or their preferred LTC home is unavailable. Additionally, the COVID-19 pandemic highlighted some of the substandard care provided in certain LTC homes, furthering their undesirability by much of the elderly population. 

Ontario’s Plan to Stay Open

In March 2022, Ontario released its “Plan to Stay Open: Stability and Recovery” framework to build a stronger, more resilient health system by tackling healthcare’s most pressing issues. The plan includes five areas of focus:

·        Preserving hospital capacity 

·        Providing the right care in the right place 

·        Further reducing surgical waitlists

·        Easing pressure on our emergency departments 

·        Further expanding Ontario’s health workforce 

Under the second area of focus, part of the plan (Supporting Transitions to Long-Term Care and Preventing Hospitalization) is to better connect seniors to the most appropriate care settings by providing faster access to care and reducing the number of emergency department visits. In hopes of achieving this goal by 2028, the Ontario government aims to build 30,000 new LTC beds outside of hospitals. Other promises include the investment of $5 billion over four years to hire more than 27,000 LTC staff, including nurses and personal support workers. In addition to creating more bed space, improving LTC resources and increasing the workforce, newly implemented legislation aims to address the overpopulated hospital beds by placing certain ALC patients in long-term homes, as will be discussed in the subsequent section. This new policy is said to provide patients with the care they need and a better quality of life in a more appropriate setting. By transferring ALC patients to LTC homes, the government anticipates hundreds of hospital beds to be available once again for those in need of acute care, and better support future patient outflow.  

Existing Legislation: Pre-Bill 7

Prior to recent changes, the Fixing Long-Term Health Act, 2021(FLTCA) set out the legal framework supporting a patient’s transition from a hospital to long-term care. Briefly, the FLTCA outlined that ALC patients can apply to a placement coordinator for admission to the homes of their choosing. ALC patients (with some exceptions) are asked to choose and rank up to 5 LTC homes. Once a bed becomes available in a home of their choice, the patient is discharged and is to be admitted into that home. The Act prescribes several elements that constitute patient consent (section 52); it [consent] must be related to admission, be informed, voluntary, and not obtained through misrepresentations or fraud. Before Bill 7, a recently passed legislation in Ontario, a patient refusing a valid admission into a LTC home could be charged an uninsured fee to remain in the hospital. However, the FLTCA did not permit unconsented admission into LTC homes by any means.

Recent Legislation: Scope of Bill 7 

Titled the “More Beds, Better Care Act,” Bill 7’s provisions came into effect on September 21st, 2022. The Bill is part of the larger plan outlined earlier to ease pressures on the healthcare system and emergency departments by freeing up hospital beds. Fundamentally, the Bill amends the FLTCA, with respect to patients requiring an alternate level of care. A new provision is added for patients occupying a public hospital bed who are designated as ALC, authorizing certain actions to be carried out without the consent of these patients. The amendments allow a placement coordinator (assigned by the attending clinician) to perform the following action authorized by the attending clinician:

·        Determine the patient’s eligibility for a LTC home

·        Select a LTC home in accordance with the geographic restrictions that are prescribed by regulations 

·        Provide the licensee of an LTC home with the assessments conducted by the attending clinician to determine ALC eligibility, and a patient’s personal health information

·        Authorize the ALC patient’s admission to a home

Implications: Consent, Vulnerability & Costs

It is noteworthy that the placement coordinator cannot perform the actions outlined above without first making a reasonable effort to obtain consent from the patient. Likewise, the amendment brought forth by Bill 7 does not authorize the use of restraints in order to carry out the actions or the physical transfer of an ALC patient to a LTC home without their consent. Despite this, the amendment does allow the placement coordinator to make decisions and take actions without the ALC’s consent, only if a “reasonable effort to obtain consent” has been made. With no clarifications in the Bill regarding what a “reasonable effort” entails, regulations may be the only safeguard against forced removal from the hospital.

An ALC patient is given two options once the placement coordinator authorizes their admission into a LTC home and the attending clinician discharges the patient: move into that LTC home, or face a daily charge of $400 as of November 20th, 2022. Geographically, the assigned LTC home could be as far as 70km from the patient’s home community in southern Ontario, and 150km in northern Ontario. This presents a genuine concern for patients and families who wish to remain in close proximity to each other.

Although Bill 7 was welcomed by some Ontario hospitals as aims to reduce overflow, many critics argued that moving the elderly into LTC homes away from families could significantly impact their mental and physicalhealth. While the effect of the law remains unclear, ALC patients and families are expected to bear the burden of its implementation.

Responses: Healthcare Advocates, Medical Associations and Families

In support of the government’s new plan, Anthony Dale, the president of the Ontario Health Association (OHA), says: “Ontario’s hospitals are rapidly becoming the health-care provider of last resort for thousands of people who actually need access to home care, long-term care and other services. This is not appropriate for thesepatients.” 

The Ontario Medical Association president, Dr. Rose Zacharias, shared similar sentiments:

“We, as Ontario’s physicians, understand and appreciate that in times of health care system crisis, difficult decisions are required and will be made.”

She adds, however: “We hope that these regulations would be implemented with flexibility, with compassion, with an understanding that patients do better when they are surrounded by their loved ones and caregivers…These are difficult decisions. And we will always advocate for the very best well-being of our patients, as decisions like this are being made. “

Many hospitals across the Greater Toronto Area support the legislation as an “important tool to ensure patients are receiving the right care, in the right place.” Some claim that they have yet to use and will unlikely use the powers conferred by the Bill.

A significant criticism relates to the government’s decision to bypass public hearings in order to pass the Bill quickly. In doing so, the general public, healthcare advocates and those primarily affected could not voice their concerns about the detrimental effects of this Bill.

Healthcare advocates also describe the Bill as fundamentally discriminatory against the elderly. In fact, the Ontario Health Coalition and the Advocacy Center for the Elderly are in the process of preparing a potentialConstitutional challenge against the Bill. With the challenge almost underway, it will be interesting to see the strategy behind arguing the Bill’s violation of Sections 7 and 15 of the Charter of Rights and Freedoms.

Peter Soliman is a Junior Online Editor of the McGill Journal of Law and Health with a keen interest in access to medical care and mental health. He is currently in his first year of the BCL/JD program at McGill University’s Faculty of Law. Prior to starting law school, he completed a Bachelor of Health Sciences with a Children’s Health Specialization at McMaster University.

The Impact on Health Workers of the Politicization of Covid-19 Public Health Measures: Canada’s Criminal Law Response

Contributed by Mark Faassen

A healthy immune system guards the body against bacteria, disease, and infection. Should the immune system malfunction, it causes the body to turn on itself and mistakenly attack healthy cells. The result is a bodily house divided, weakening function and potentially turning life-threatening.

Over two and a half years into the Covid-19 pandemic, public health officials and health care workers have become unexpected targets for many of the preventative measures and restrictions experienced by society. The world over, nurses, physicians, and other front-line health workers caring for the sick went from being celebrated heroes in early 2020 to objects of harassment and attacks. Public health officials, used to working mostly behind the scenes to protect the public’s health prior to the pandemic, suddenly experienced a new visibility and vulnerability.

Canada has not been immune to these developments. Health officials and workers in Canada have faced threats and abuse both online and in the workplace, including at hospitals and health clinics. As the pandemic wore on, angst and angerfrom a vocal minority took the view that in addition to having no pandemic health measures, health workers should even not comment, provide quality information, or advocate publically on issues affecting public health.

The nature of the in-person harassment has varied. Protests were staged outside of the personal residences of medical officers of health across Canada, including against the chief medical officers in Nova ScotiaSaskatchewanQuébec, and against the medical officer of health in the town of Peterborough, Ontario. Protestors also blocked access to hospitals and health clinics, targeting both health workers and patients trying to access care, and engaged in violent behaviour inside. Health workers have further experienced verbal abuse and received racist, sexist, and anti-Semitic messages, including angry notes left on their parked vehicles.

The nature of the online harassment has also varied. One end of the spectrum has included the posting of fake professional reviews, complaining to health workers’ employers, and initiating frivolous complaints to professional regulators. Health workers have also experienced doxing, meaning the exposing of private information online such as private contact information including a home address without consent, racist abuse, and violent threats including death threats

Notably, whether in person or online, female and racialized health workers are more likely to be the targets of such abuse. Abuse directed at women is much more likely to be sexually explicitNurses and personal support workers, especially women and racialized workers, tend to bear the burden of in-person workplace abuse of all health workers.

Whether in person or online, female and racialized health workers are more likely to be the
targets of workplace harassment and abuse. || (Source: pixabay // Elf-Moondance/905 images)

Similar to autoimmune diseases, the precise cause of the turning against health officials and workers and the rise in harassment are somewhat elusive. Potential reasons are several. One perspective cites the initial scientific uncertainty around Covid-19 (including understanding disease transmission as via surfaces, droplets, or airborne) and that some public health officials were less prepared for becoming public leaders responsible for leading communications in a quickly evolving, little understood pandemic: “Unfortunately the communication of uncertainty was not always clear, leaving the public confused about the disease’s trajectory, the feasibility of policies to mitigate the pandemic, and when it would end. All of this provided and enabled opportunities for misinformation and politicization to undermine the aims of public health.” 

Other reasons for the rise in harassment against health workers in particular include: fear, panic, and misinformation as to how SARS-CoV-2 is spread; “social media and other tools of misinformation” permitted groups opposed to government action generally to focus their attention to public health; elected leaders communicating messages about Covid-19 that sometimes conflicted with public health messages; and “toxic misinformation about the pandemic and vaccines…and understaffing and burnout in health care contributing to frustration on all sides.” 

Legislative Response: Amendments to the Criminal Code

International governments, including IndiaChinaNepal, and Canada, resorted to legal responses to better protect health workers. Canada tabled a bill to protect health workers from intimidation in November 2021, Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code. It received Royal Assent on December 17, 2021 and came into effect on January 16, 2022. 

Section 423.2 (1) of the Criminal Code creates a health services intimidation offence. It is a criminal offence to engage in any conduct with the intent to provoke a state of fear in:

  • a person in order to impede them from obtaining health services from a health professional,
  • a health professional in order to impede them in the performance of their duties, or
  • a person, whose functions are to assist a health professional in the performance of the health professional’s duties, in order to impede that person in the performance of those functions.

Section 423.2 (2) of the Code creates a health services obstruction offence. It is a criminal offence to intentionallyobstruct or interfere with another person’s access to a place at which health services are provided by a health professional. Section 423.2 (3) stipulates that a person who commits one of these offences will be liable up to 10 years imprisonment or for less serious cases, two years less a day on a summary conviction.   

In a balancing of the fundamental freedoms protected under the Canadian Charter of Rights and Freedoms (namely, section 2(b) protecting freedom of thought, belief, opinion and expression; and section 2(c) protecting freedom of peaceful assembly), only conduct intended to provoke a state of fear in a health professional or a person attempting to obtain health services is required. Further, section 423.2 (4) expressly permits a defence for persons who are merely at a place at which health services are provided “for the purpose only of obtaining or communicating information.” According to an Explanatory Note prepared by the Department of Justice, peaceful protests or demonstrations outside health facilities are not criminalized. 

Amendments to the Criminal Code of Canada include the creation of a new intimidation offence
prohibiting conduct intended to provoke fear, to impede with the duties of a health care worker,
or to impede a person from receiving health care services. || (Source: pixabay //
mohamed_hassan/5927 images)

Lastly, the sentencing provisions in section 718.2 of the Criminal Code now make it an aggravating factor in sentencing for any offence when there is evidence that: the offence was committed against a person providing health services, as part of their duties (section 718.2 (a)(iii.2); or where there is evidence that the offence had the effect of impeding another person in obtaining health services (section 718.2 (a)(vii)). 

The new offences are intended to discourage disruptive protests on or around hospitals and other health facilities as seen across Canada in 2021 and during the “freedom convoy” or occupation of Ottawa in early 2022. Further, the new offences are broadly worded. The Canadian Association of Police Chiefs has offered that the new offences will help bolster police efforts to pursue online intimidation related to the provision of health care. The new offences my also apply to intentionally following a health professional to and from work, or patients trying to intimidate health professionals with respect to the implementation of public health measures. They could further apply where patients are trying to access other health services (e.g. abortion).

While these new offences were welcomed by health workers others have questioned their necessity given that assault, intimidation, and harassment are already criminal offences. One view characterizes the new offences as political communications theatre and cautions a potential lack of efficacy and opportunity cost to unnecessary criminal legislation. According to federal Justice Minister, David Lametti, police and prosecutors rarely used existing criminal offences harassment of health workers, necessitating tailored offences. It is unclear why existing Criminal Code offences previously went underused by law enforcement.  

It is still too early to tell how these new Criminal Code provisions will be applied and enforced. To date, there are no reported decisions since the offences came into effect. Media reports suggest that police are starting to enforce and make use of the new offence, including in Nova Scotia, and Peterborough and Ottawa in Ontario.  

Moving Forward

Regrettably, the intimidation and harassment of health workers across the globe predates the pandemic. A study published in 2010 indicates that nearly one-third of family physicians in Canada reported experiencing abusive behaviours from a patient or patient’s family in the previous month. Three-quarters of those who experienced an abusive encounter did not seek help and 64% did not report the incident. Canadian physicians working in hospital emergency and psychiatric departments have an increased chance of an abusive encounter. 

In fact, the House of Commons Standing Committee on Health issued its report Violence Facing Healthcare Workers in Canada with numerous policy recommendations in 2019. Its findings included that workplace violence in health care settings is “pervasive” across Canada and that health workers have a fourfold higher rate of workplace violence than any other profession. Its recommendations included collecting data and statistics on violence in health care, developing a national public campaign to raise awareness of the violence experienced by health workers, and developing a pan-Canadian framework to prevent violence in health care settings. 

The intimidation and harassment of health workers globally predates the pandemic. Moving
forward, subsequent legal responses to holistically address the issue will require thinking beyond
the criminal law to address other structural aspects of the problem. || (Source: pixabay //
fernandozhiminaicela/2460 images)

Although swift legal action was required to protect health workers from a surge of undue harassment and intimidation since 2020, the pandemic merely exacerbated a pre-existing systemic issue. Moving forward, subsequent legal responses to holistically address the issue of health worker harassment, intimidation, and violence will require thinking beyond the criminal law to address other structural aspects of the problem. Improved data collection of the abuse health workers regularly face (including with respect to racism), the particular roles health profession regulators and hospitals may play through the adoption of regulation, policies, or standard protocols, the cooperation of law enforcement to fully utilize criminal sanctions, and the improved involvement of social media platforms in curtailing false health information are some areas worthy of exploration. Now is the time for stakeholders to engage in reflection  and collaboration, including between levels of government in Canada.  

Biography

Mark Faassenis a lawyer and Junior Online Editor of the McGill Journal of Law and Health. He is currently an LLM candidate at McGill University’s Faculty of Law. His legal practice focuses on professional liabilityand health law.

Addressing Implicit or Unconscious Biases in Healthcare

Contributed by Maushumi Bhattacharjee 

Abstract: This article is a commentary on prevalence of implicit or unconscious biases in the healthcare systems in the US and Canada. The article analyses various empirical studies undertaken in North America to identify the presence of Implicit Biases in its various forms, including racism and gender insensitivity, and identifies possible areas for improvement.  Implicit Association Test (IAT) which is the most common tool used by researchers to identify implicit biases needs to be updated to recognizes several forms of biases which are beyond its scope at present. Medical practitioners must be trained to recognize and eliminate implicit or unconscious biases in healthcare as part of their clinical, ethical, and legal obligations, that is included within the ‘standard of care’ for patients.

Résumé: Cet article est un commentaire sur la prévalence des préjugés implicites ou inconscients dans les systèmes de santé aux États-Unis et au Canada. L’article analyse diverses études empiriques entreprises en Amérique du Nord pour identifier la présence de biais implicites sous ses diverses formes, y compris le racisme et l’insensibilité au genre, et identifie les domaines d’amélioration possibles. Le test d’association implicite (IAT), qui est l’outil le plus couramment utilisé par les chercheurs pour identifier les biais implicites, doit être mis à jour afin de reconnaître d’autres formes de biais, ce qui dépasse actuellement sa portée. Les médecins praticiens ont besoin d’être formés afin de reconnaître et éliminer les préjugés implicites ou inconscients en soins de santé selon  leurs obligations clinique, éthique et légale, qui sont incluses dans la “norme de soins” pour les patients.

Defining Implicit or Unconscious Biases in Healthcare and its Various Forms 

There have been several studies that document racial, ethnic or gender-based biases in healthcare across North America. These biases may often occur as blatant racism in many cases. However, they may also be more subtle, taking the form of unconscious behavior on the part of clinicians or healthcare service providers. Implicit biases result from unconscious attitudes and beliefs that are systemically ingrained in people who lack awareness and knowledge of how these biases affect their behavior towards certain people. These kinds of implicit, subtle, or unconscious biases in treatment and patients’ care are often unrecognized and therefore unaddressed. Implicit biases in healthcare could take several forms. For example, research on the use of stigmatizing language by physicians in patients’ medical records showed that most of the negative language used by physicians was implicit but had the potential to transmit bias which affected the quality of care to patients. The categories of such negative language used by physicians ranged from “questioning patient credibility”, “disapproval” to “stereotyping”. Another example could be of racial stereotyping wherein black patients being prescribed insufficient pain medication because of implicit stereotypical beliefs of clinicians that black people do not feel pain as much as white people, or common unfortunate misbeliefs such as black people have thicker skins. Underrepresented minorities, such as disabled people or people belonging to LGBTQ+ community are also frequently victims of such unconscious biases of medical practitioners while getting treatment. Racial, ethnic and gender minorities already suffer from disparity in access to healthcare, and such implicit biases adversely affects the quality of patient care that is provided to them. 

Implicit biases can manifest into repeated subtle, verbal, or non-verbal insults towards marginalized persons, which are termed as ‘microaggressions’. These are everyday intentional or unintentional insults directed towards vulnerable minorities based on their race, gender, ethnicity, culture, or religion. The fact that they are repeated, and commonplace makes them derogatory and hostile in nature. The major problem with implicit biases is that they are so often unrecognized by the person who is perpetrating them as well as those on the receiving end. Implicit biases can also be found in cases of determining capacity of patients, as in several cases the clinicians would determine that the patient does not have capacity just on the basis that the patient is unable to communicate their needs with them. However, there are several reasons that could cause patients to hesitate in communicating with their doctors. Most common reasons are different cultural backgrounds or linguistic barriers. For example, in South Asian or East Asian cultures, the patients do not make their medical decisions on their own, but with the help of their family members, which is why they may often be unable to communicate their needs. As is often the case, it is the cultural underpinning that is driving the patients’ presentation to their clinicians. Clinicians, on the other hand, are often guided by the bioethical principles of respecting patient autonomy, which leads them to ask several questions to determine patient capacity. This lack of communication from patients has got nothing to do with their capacity, but rather with where they come from, or their life experiences which formed their relationship with the clinician or the hospital. Lack of cultural competency among clinicians in United States and Canada is one of the major factors that results in unconsciously biased behavior towards patients.

There has been an eruption of outrage across the world in response to recent events highlighting racial inequality and discrimination in North America, whether it is the brutal murder of George Floyd or the uncovering of bodies of indigenous children in residential schools in Canada. On these events, Canadian Prime Minister, Justin Trudeau used the terms “unconscious biases” and “systemic racism” to address and acknowledge the problem of racism in Canada. Racism as an unconscious or implicit bias is widely prevalent in medical practice across North America. It means that clinicians may unconsciously project racially insensitive behavior towards people of color or minorities. In these cases, racism is exhibited through far more subtle and non-violent biases that vastly go unrecognized. However, when unconscious biases among people leads to support of a collective bias, it gets transformed in systemic racism. One such example of systemic racism is of Brian Sinclair, an indigenous homeless person who was “ignored to death” in the waiting room of a hospital in Manitoba by the medical staff who made a biased assumption that he was in a drunken state instead of treating him for bladder infection. The hospital staff tried to justify their actions by stating that they treated Mr. Sinclair as they would have treated everyone else, which only shows that they were blinded by their own preconceived notions and existing stereotypes against indigenous people. 

Measuring Implicit Biases and their Impact in Healthcare

Evidence-based research is considered as the most appropriate means for formulation of better health policies that also ultimately determine the standard of patient care. An important example of positive outcomes of evidence-based medical practice and policy is the use of harm-reduction methods for dealing with patients of substance-abuse. In the case of measuring evidence of implicit or unconscious biases in healthcare delivery, surveys and questionnaires won’t be ideal because most people are unaware of these biases even though they might be unconscious perpetrators or victims of such biases in healthcare. So, to measure unconscious bias two professors of clinical and social psychology developed a scientific research tool that measures peoples’ hidden biases and prejudices. It is called the Implicit Association Test (IAT)and has been widely used in fields of medicine and law. The Race IAT has been the most popular one and extensively used between 2002 and 2017 in the United States. The results of Race IAT studies have shown prevalence of automatic white preference, that is “most people associating white people with goodness and black people with badness”. IAT is said to measure biases and implicit associations in people even when they exhibit and portray themselves as unbiased people favoring racial equality. 

Despite IAT being a unique research tool and the first of its kind to measure unconscious biases, it has several limitations which can make its results unreliable. While there is no doubt about the existence of implicit biases in healthcare, especially racial and ethnic biases, a lot more systematic research and data collection must be done to have definitive results on the impact of such biases in healthcare. At present, there is a lack of uniform research methods for measuring implicit biases in healthcare. Results from some IAT studies show that implicit bias more frequently affects the relationship between patient and clinician or health service provider. However, these studies do not consider several relevant factors such as background of clinicians or provider, or intersectionality within participants. 

Since most research in implicit bias has focused on race, there hasn’t been enough investigation on biases based on other characteristic identities, such as, gender, sexual orientation, disability, religion, and culture. There hasn’t been any IAT studies conducted in countries outside of global north, where there may exist other forms of implicit biases within the medical community. For example, the prevalence of caste discrimination in India, growing hostilities against certain religious minorities, or lack of representation from LGBTQ community could be translated into explicit or implicit biases in behavior of clinicians towards their patients. Casteism is also prevalent in North America among South Asian diaspora communities, and could turn up as biased behavior from clinicians belonging to such communities. Research on implicit biases is crucial for improving patient welfare and reducing systemic racism and other biases within healthcare community. In order to obtain comprehensive and accurate data on implicit biases, the research methodologies need to be improved and current methodological limitations must be addressed. Some recommendations include asking more nuanced questions to participants, more cross-sectional studies for estimating national estimates on implicit bases, more representation within the sample, and consideration of factors other than just race. 

Recognizing and Eliminating Implicit Biases as Part of Standard of Care

The medical community states that the standard of care which a patient must get depends on evidence-based medical and health policy research, The standard of patient care is determined after considering the medical knowledge of clinicians and nurses. In a bioethical sense from the perspective of a clinical ethicist, the standard of care must be patient centered care, which entails that patient must determine the standard for their care. Aside from respecting patient autonomy, minimizing harm to patients and ensuring justice are important bioethical principles that inform the ethical standards of patient care that all clinicians must judiciously follow. It is therefore important to recognize implicit and unconscious biases in clinicians’ behavior which may lead to harm and result in racial injustices. While IAT studies, medical research and surveys continue to collect evidence, showcasing the prevalence of implicit biases and its impact on patients’ care, it is crucial to recognize such biases and eliminate them as an ethical obligation on part of clinicians or health service providers. 

The legal definition of standard of care has been developed historically through several cases in common law and civil law jurisdictions. In US and Canada, the standard of care warrants a reasonable degree of care towards patients on part of the medical practitioner. The reasonability criterion has been explained in a Canadian judicial decision on medical liability and standard of reasonable care:

 “Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”

A deviation or departure from such standard of care by a medical practitioner towards patient would be termed as medical malpractice. Another legal case in US from 1969 involved a patient who had progressed from an operation but took a fall, after which his condition deteriorated. The patient was left unattended when he fell. The court explained that the question whether it was the hospital’s neglect that caused the patient’s condition to worsen was irrelevant. The court held that it was “hospital’s duty to exercise reasonable care for the safety and well-being of the patient”, which was the standard of care that the patient should have received. The neglect not only caused harm to the patient but to the relationship and trust between the patient and clinician. Similarly, patients lose trust in their clinicians because of microaggressions and implicit biases, which are woven into the way care is being provided, and so result in a departure from the standard of care.

In Schoendorff v Society of New York Hospital, the clinicians did not follow explicit instructions of the patient which was to only look at what was in the uterus without performing any surgery before discussing with her. But when they found fibroids in her uterus, they decided to take them out. While gender insensitivity and bias were in play here, the case was about recognizing patients’ basic right to consent to treatment before they are subjected to it. The court has recognized respect for autonomy of patients in their care as a standard of care that is legally mandated upon medical practitioners. The physician has a duty of reasonable care to warn of dangers lurking in proposed treatment and to impart information which patient has every right to expect. A reasonable explanation about the treatment is a right of every patient. It means generally informing the patient in non-technical terms as to what is at stake, i.e., the therapy alternatives and risks which may ensue from treatment or no treatment. The court said that this standard of what ought to be disclosed and shared as conversation between the patient and the clinicians is not measured by what the clinicians think is reasonable, but rather, is measured by what the patient thinks is reasonable. Respect for patient’s right of self-determination in therapy demands an objective legal standard for physicians rather than one which they may or may not choose to impose upon themselves. Unlike the standard of what a physician is technically capable of accomplishing, this aspect of their duty, showing respect for the patient’s rights, should be determined by a community standard and not by standards created by clinicians. 

The medical staff at the Manitoba hospital where Brian Sinclair, an indigenous homeless man who was ignored to death, claimed that they had given the same standard of care to Brian as they would have to non-indigenous patients. However, this was far from the truth. Brian Sinclair did not die due to long waiting periods, but due to systemic racism as he was denied a simple procedure and some antibiotics to treat his bladder infection. This can easily fall within the legal definition of standard reasonable care expected from health service providers. Brian Sinclair was a victim of implicit biases that resulted in his delayed treatment and thereafter in his death. Recognizing and eliminating such implicit biases must be considered a legal obligation on part of the clinicians and as part of the standard of care provided to patients. 

Healthcare providers, clinicians, ethicists, and lawyers need to take more affirmative responsibility to identify instances of misconduct, bias and microaggressions. These instances must be studied and identified. Proper training needs to be given to healthcare providers to eliminate such biases in patient care and that should be the standard of care that patients deserve. 

Recommendations and Suggestions for Mitigation of Implicit Bias

Much research and deliberation need to be undertaken among medical community, lawyers, ethicists, patient communities, and underrepresented minority communities on an ideal strategy to police substandard patient care related to implicit bias. Medical Review Boards, Legal System and Patient Advocacy Organizations are some of the relevant institutional bodies that can play a role in suppressing implicit biases in patient care. Training sessions must be organized, not just for the clinicians but also for patients so that they can recognize and identify certain biased behavior that they may experience during their treatment. Patients must be made aware of the standard of care they deserve and the steps they can take if such care is not provided to them. Medical institutions, hospitals and universities must undertake community based participatory research methods and other methods such as public deliberation with patient communities to get insights from patients on mitigating such implicit and unconscious biases. For clinicians, organizational strategies such as cultural competency training and training in cultural humility can help clinicians recognize and eliminate unconscious biases in patients’ care. Furthermore, clinicians may also undertake individual or group deliberations to share their understanding and experiences of unconscious biases and reflect on ways to tackle them. Training for medical students must also include exposure to staged interactions with patients that involve biased and stereotypical dialogues, which could help them recognize and avoid such behavior in real life. 

Training and research can help the medical community realize their ethical and clinical obligations to recognize and eliminate implicit biases in patient care as part of the standard of care to be given to patients. The popular attitude towards ethics in medical community, especially among medical students, is to leave ethical dealings with the ethicist and to only care about legal obligations towards patients, since violating those obligations will have repercussions. While racism and ethnic biases are explicitly forbidden, there are many other kinds of biases which may not fall under the legal purview. In fact, systemic racism is often aided by colonial laws and health policies. Although, as stated earlier, the legal definition of standard of care is broad enough to include elimination of implicit biases in patient care as part of standard care. Clinicians and medical students must be actively given knowledge of this fact so that they feel legally obligated to eliminate unconscious biases in patient care. 

Afro-Hair and the Law: The State of American and Canadian Law on Race-Based Hair Discrimination  

Contributed by Annaëlle Barreau

Introduction

Anti-Black hair sentiment in North America is a centuries-old tribulation. A survey conducted by DOVE and the CROWN coalition found that 86% of children have experienced race-based hair discrimination by the age of 12. The discourse regarding Black hair is politicized and goes beyond a mere discussion of beauty standards since Black people are denied educational and employment opportunities simply because of their hair. There are societal pressures in multiple spheres for Black women and girls to either cut or chemically alter their hair to fit in. Discrimination against one’s natural hair texture is a civil right and public health issue that ought to be addressed through legislation. 

Some lawmakers have affirmed that while hair texture is an immutable characteristic, hairstyles, such as twists, are not and should thus not be granted protection. This argument holds only where one refuses to properly educate themselves on Afro hair care. The discrimination against protective hairstyles in educational facilities and the workplace forces many Black women and girls to alter their hair in damaging ways to meet European aesthetic standards or overmanipulate their hair.

Studies unveil disparities in the impact of hairstyling choices between Black individuals and their white counterparts. For instance, for the sake of infection control, white nurses are asked to tie their hair up, whereas Black nurses are often asked to cut theirs.

In Canada, there is stigma and misconceptions surrounding afro-texture hair. Beauty schools do not include afro-texture hair in their curriculum, and there is a lack of positive representation in the mainstream media. Although there has been an  outpouring of public response, with a petition gathering 30,000 signatures to give afro hair a place in beauty-school programs, no official change has been implemented. 

The jurisprudence and mediatization of race-based hair discrimination in Canada have not developed as much as they have in the United States; however, the issue is just as present. This blog article will discuss the history of race-based hair discrimination in America, the new American legislation aiming to combat the problem, and how this discrimination has been addressed in Canada. 

History of race-based hair discrimination

In the 1700s, in Colonial Louisiana, there was an established community of free Black people. Black women were known to style their hair elaborately, which drew the attention of white men. This attraction instilled jealousy and fear that the Black community would gain too much power. Further, white women claimed that Black women were intentionally scheming to tempt their white husbands. As a result, when the Spanish took over Louisiana, they implemented the Tignon Laws, by which Black women were forced to conceal their hair with a tignon (a head scarf typically worn by enslaved women while labouring). The law’s purpose was twofold: it was an additional visual social marker, reasserting that free Black women were closer to enslaved women than to white women and supposedly prevented them from enticing white men. Black and Creole women, however, seized this opportunity to create a new cultural element by crafting colourful and ornate headwraps. By the early 1800s, while the Tignon Laws were no longer being enforced, race-based hair discrimination still persisted.  

Madame CJ Walker, whose empire was launched by inventing the hair-straightening comb and other hair products, became the first Black female millionaire towards the end of the 19th century. Straight hair was seen as leading to social and economic advancement. Minstrel shows would mock kinky hair texture, referring to it as nappy and comparing it to wool

Afro-textured hair is often seen as deviant compared to the narrow Eurocentric beauty standard. There is a strong pressure for Black women and girls to cover, strengthen, or chemically alter (“relax”) their afro-textured hair in order to be accepted in society. However,  many of these practices come at a high monetary and physical cost. Through hair relaxers, racism and toxins collide; several dangerous chemicals are found in many hair relaxer products, which can lead to chemical burns. “Hair products sometimes used by Black women may contain endocrine-disrupting chemicals linked with serious health issues, according to Harvard T.H. Chan School of Public Health’s Tamarra James-Todd. […] Straight long hair has often been held up as the standard of beauty […] To try to adhere to that standard of beauty [… ] some Black women use a there is a limited selection of chemical-free products for Black hair on the market, and where they do exist they are often not widely available and can be expensive.” 

Today, there is a dichotomous status accorded to Black hairstyles in mainstream society, where they are considered fashionable on one hand, being emulated by non-Black people, while being considered unprofessional on the other. This results in many Black people, especially women and girls, being denied access to education and employment opportunities because of their natural hair. In fact, Black girls and women are routinely sent home or denied employment due to their hair being perceived as “unprofessional.”

Natural Black hair in the workplace is a civil rights and public health issue that is now being fought with legislation.

The CROWN Act,  which seeks to end race-based hair discrimination, expanded the definition of race in the State Education Code and the Fair Employment and Housing Act; finally legitimizing the demands of generations of Black women. || (Photo Source: Naassom Azevedo via Pixabay)

The Crown Act

On 3rd July 2019, Governor Gavin Newsom signed the Senate Bill 188, also known as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), making California the first state to protect Black students and employees from hair discrimination through explicit legislation. Nine days later, New York became the second state to criminalize race-based hair discrimination after Governor Andrew Cuomo signed a bill amending the state’s Human Rights Law in July 2019. The CROWN Act,  which seeks to end race-based discrimination against natural hairstyles at work and school, is currently law in fifteen American states. The Act expanded the definition of race in the State Education Code and the Fair Employment and Housing Act. Various states include slightly varying styles beyond mere texture within their parameters of protection (some including twists, locks, and hair wraps).

In March 2022, the U.S. House of Representatives passed Bill H.R.2116, which “prohibits discrimination based on a person’s hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin.” The legislation is awaiting approval by the Senate. Under this bill, hair texture and protective hairstyles would be granted federal protection from discrimination. 

The Situation in Canada 

In 2016, Akua Agyemfra, a server at a Toronto Jack Astor restaurant, wore her natural hair in a bun and was sent home by the manager who required that female staff wear their hair down, despite Agyemfra showing that her natural hair does not fall straight. In the same year, Cree Ballah, a biracial employee, was asked by fast-fashion brand Zara to remove her box braids and told they did not fit the brand’s “clean professional look”. In 2019, Edmonton AGO Bistro worker, Natasha Doyle-Merrick, quit her job after being told her hair could ‘scare’ customers. Employees should not have to chose between quitting and wearing their natural hair to work. However, environments that scrutinize Afro hair in such a manner are also often the host of other toxic and discriminatory behaviours. 

In 2014, Lettia McNickle was working as a hostess at Madisons Bar and Grill and was requested to leave because of her braids. Her hours were then cut until she was eventually fired. The Quebec Human Rights Commission held McNickle was the victim of racial and gender discrimination and ordered the restaurant’s owner to pay $14,500 in damages. The case will proceed to the Human Rights Tribunal, as McNickle had not received the money as of 2018. 

In the 2010 Human Rights Tribunal of Ontario case, Armstrong v. Anna’s Hair & Spa, a salon that refused to massage or wash Armstrong’s hair, arguing they don’t do “Black hair” (his hair was in dreadlocks) was ordered to pay compensation of $1,000 and complete the Ontario’s Human Rights Commission’s (HRC) online training module on human rights. The application related to sections 1 and 9 of the Human Rights Code, which provides that “every person has a right to equal treatment with respect to services without discrimination because of a number of grounds, including race, colour, and ethnic origin, and no person shall infringe or do, directly, or indirectly anything that infringes a right.”

The amount awarded is low: although the Tribunal recognized the humiliation, “hurt feelings”, and affront to dignity suffered by the complainant, it found that the respondent’s offensive treatment was on the “low end”. 

Subsection 45.2 of the Human Rights Code provides the remedial powers of the tribunal to issue an order directing a party who infringed a right to (1) pay monetary compensation, (2) make restitution to the party whose right was infringed, and (3) perform any act the tribunal believes the party ought to do to promote compliance with the Act.

Requesting that a defendant complete the human rights online training module seems to be a common sanction in discrimination cases heard at the Ontario Human Rights Tribunal. However, one can question its efficacy since there is insufficient  evidence that implicit bias training actually works, with some evidence even suggesting that it does not work because it was never meant to

The rationale behind the training modules of the Human Rights Commission is said to be that they are “central to any effort to build a “human rights culture” within an organization […] [and] can deepen understanding and awareness of human rights issues.” While the issues of race-based hair discrimination previously mentioned are direct rather than implicit, it is possible to draw parallels and similar inferences for these training strategies. 

The Tribunal recognized that anti-black racism is embedded in the community’s psyche and found that the subtle manifestations of Anti-Black racism are well-recognized in Canadian law. It further noted that assumptions about “Black” hair, like the ones verbalized by the hair salon are nonsensical and stereotypical, and we don’t apply such statements to “white” or “Asian” hair. 

While the HRC training seeks to encourage organizations through knowledge of the Code and human rights issues to comply and avoid discriminatory behaviour, one may wonder how effective these can be when much of the discriminatory practices have been entrenched in the community. 

While hair discrimination is common in Canada, Canadian law remains mostly silent on the matter. Currently, hair is not directly recognized as a protected ground and rather falls within the protected ground of race. While race-based hair discrimination is obviously racist, the lack of explicit protection by the law maintains some ambiguity as to whether hair can be protected, leaving space to argumentation on its immutable nature. Consequently, in cases of hair discrimination, seeking justice through the legal system can often be impossible or costly for claimants. 

Conclusion

Black hair has been an important part of Black liberation movements. Canadian civilian rights leader, Viola Desmond, who is featured on some of our ten-dollar bills, launched the first hairdressing school of its kind in Nova Scotia after being rejected by all beautician schools for being Black. 

The recognition of the insidious policing of Afro-textured hair and the assertion by American law that Afro-hairstyles are just as “professional” as blowouts is a necessary step for race equality. 

Alongside other Black liberation movements throughout history, there have been multiple waves of the natural hair movement, each marking a different era and significance of Black hair in the sociopolitical sphere. The movement encourages Black people to proudly wear their hair in their natural or cultural styles. The number of high-profile Black women seen in their afro hairstyles is increasing. The CROWN Act finally legitimizes the demands of generations of Black women. Thus, we are starting to see a shift in the space and discourse surrounding afro hair. Legal protection against discrimination and a drastic cultural shift on views surrounding Black hair would allow future generations of Black girls to embrace their natural curls without fear of microaggressions, educational, and employment discrimination. 

The current state of Canadian law does not adequately protect Black people from being discriminated against on the basis of their hair texture or choice for protective styling. For the sake of promoting race equality, Canadian policymakers ought to consider implementing measures similar to the CROWN Act. 

Annaëlle Barreau is the Executive Online Editor at the McGill Journal of Law and Health. She is currently in her second year of the JD/BCL program at McGill University’s Faculty of Law. Prior to starting law school, she obtained a Bachelor of Psychology and Sociology from McGill University.