Society’s understanding of gender identity and expression has evolved since Correctional Service Canada changed its trans policy three years ago, but a draft Commissioners’ Directive on the matter appears to be taking a step back from that earlier policy.
In their comments on Commissioners’ Directive 100 issued in October, the Sexual Orientation and Gender Identity Community and Criminal Justice Sections say they are concerned that CD 100 will not protect the human rights of transgender prisoners.
“In our view, CD 100 is based on the incorrect assumption that people are fundamentally men or women (or intersex) based on biology at birth,” the Sections say in their submission. “We recommend that the policy be based on the assumption that people have the right to be placed in institutions that reflect their gender identity if that is their choice.”
Such a placement would be consistent with human rights law and the Charter. It also “eliminates the policy’s problematic requirement for placement by sex, by default, followed by a special process to respect human rights.”
On intake, individuals should not have to disclose their sex or gender, or to have it recorded in the Offender Management System. This is personal information and they may have good reason for keeping it private. They should be asked about their preferred pronouns and names and these should be used from the moment of intake on. They should be asked if they want an individualized protocol and if they do it should be completed immediately. All intake centres should also have both men’s and women’s clothing and personal effects available. And referrals to gender identity specialists shouldn’t wait until the offender has been placed in penitentiary.
“If there are no obvious health or safety concerns at intake, the person should be placed in their choice of a men’s or women’s institution immediately,” the Sections say.
“We recommend that CSC implement a policy of gender identity placement if that is the preference, without exception. In practice, the application of this exception has led to some trans women being denied placement at women’s prisons based on risk speculation. The discrimination and safety risk of these women in men’s prisons, on the other hand, is not speculative, but is based on clear evidence.”
The Sections make a number of recommendations for clarifying language and for ensuring that CD 100 conforms to human rights legislation and earlier protocols. They also suggest adding a preamble to CD 100 stating that Canadian law requires the CSC to respect peoples’ dignity based on gender identity and expression, and that its policy and programs must be responsive to the needs of trans prisoners. “Explaining the harm caused by human rights violations, such as misgendering, deadnaming or outing people, in addition to the violence that trans people experience in prison, would also be helpful.”