The Power of Perspectives

The Canadian Bar Association

Kim Covert

Trans inmates: It’s all about respect

June 29 2017 29 June 2017

Historically, trans inmates are penalized not only for their criminal behaviour but, because Canadian jails and prisons – and the policies that govern them – weren’t designed to accommodate non-binary prisoners, they’re also punished for asserting a gender other than that assigned at birth.

Correctional Service Canada is reviewing its policies relating to gender identity and expression and the CBA’s Sexual Orientation and Gender Identity Community Forum, along with the CBA Criminal Justice Section, made a submission in June to respond to CSC’s proposed policy amendments.

“The CBA Sections welcome this important step in the development of Correctional Service Canada policy,” the Sections wrote.

“The proposed amendments to the policy suite represent a considerable advance in recognizing gender identity and expression rights in the federal corrections environment.”

The draft policies deal with where trans inmates are placed and why, how they are accommodated in correctional institutions, the circumstances under which they are searched, the treatment of their personal property, use of force, staff protocol and post-sentence community assignments, as well as training of staff, data collection, and effective decision review mechanisms.

The overriding theme of the CBA Sections’ comments is that trans inmates must be treated with respect, in a way that does not doubly penalize them or expose them to danger.

For example, the proposed amendments call for trans individuals to be placed in a men’s or women’s institution according to their preference “unless there are overriding health and/or safety concerns which cannot be resolved.”

To this the Sections respond that placement according to gender identity or expression is a basic human right.

“Under the Canadian Human Rights Act, rights must be accommodated to the point of undue hardship, considering health, safety and cost, in the individual circumstances.” The Sections recommend additional criteria be added to the policy to ensure it is implemented consistently, and that an accountability mechanism be established to record when and why the exception is activated.

When it comes to bunking, if a single cell isn’t available the Sections recommend that the trans inmate be given a say in the risk assessment for double-bunking, and that the policy specify that trans inmates who are housed according to their birth-assigned sex or who have been refused a transfer for health or safety reasons should not have to share a cell. The also recommend that trans inmates have access to a private toilet and shower.

Correctional Service Canada is conducting a separate consultation on administrative segregation. The CBA in the past has criticized the over-use of solitary confinement. This submission mentions the use of administrative segregation as a means of keeping trans prisoners safe.

“Although the proposed revisions to the CSC’s placement policy for trans inmates may mitigate their exposure to discrimination and violence, the underlying culture will likely persist for some time. Thus, trans inmates may continue to be placed in protective custody. The CBA Sections recommend that CD 709 be reviewed specifically to address the segregation of inmates for reasons related to gender identity or expression.”

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