SOGIC executive discuss trans rights with policy-makers

  • January 08, 2018
  • Dorianne Mullin

Transgender people are at a significantly higher risk of harassment, assault, sexual assault, suicide and even murder in correctional or detention facilities. To better reflect the evolving law and standards of care with respect to the rights of transgender people in Canada, Correctional Services Canada policies are being amended to address some of the difficulties faced by trans inmates. Sexual Orientation and Gender Identity executive members had the opportunity to discuss these issues with policy-makers during their annual in-person meeting in May. SOGIC members met with Dr. Ivan Zinger, head of the Office of the Correctional Investigator, representatives from CSC, and Marcella Daye of the Canadian Human Rights Commission.

There are approximately 14,500 inmates in CSC facilities. The Office of the Correctional Investigator is an ombud’s office established in 1973 that deals with specific inmates’ issues, as well as broader, systemic issues. Its authority is limited to making recommendations. Members of the Office of the Correctional Investigator who meet with inmates a number of times per year have found their primary complaint relates to health care. The office submits an annual report, as well as special reports related to specific issues. At times, reports on systemic issues may be done as well.

Dr. Zinger noted that the federal government’s response to gender issues has improved in recent years. For example, among the recommendations in its 2015 – 2016 report, were two specific to trans inmates – 1) that the “real life” experience test include consideration of time spent living as a transgender person during incarceration; and 2) that upon request and subject to case-by-case consideration of treatment needs, safety, and privacy, transgender or intersex inmates not be presumptively refused placement in an institution of the gender with which they identify. CSC initially accepted the first, but not the second recommendation. However, following public outcry, CSC quickly announced that it would accept the second recommendation as well.

The new CSC policies related to gender dysphoria are a shift in thinking. The driving force, CSC representatives advised, is based on how a person self-identifies, not his or her genitalia. The policy is intended to be expansive and include gender considerations generally, not solely focused on trans inmates. The policy is geared towards both those entering federal institutions, as well as those currently incarcerated. In response to questions related to some of the considerations during the drafting, CSC indicated that it is highly relevant that this is a vulnerable population – relevant for assessing both the inmate’s risk and the risk to others. It is also key that CSC not establish strict processes, but rather look at all angles, and in developing the policies, consult with all stakeholders including health experts, aboriginal representatives, and females, to ensue all perspectives are included.

The changes to the CSC policy were in parallel with Bill C-16, which was a federal government bill to include gender identity and gender expression in the Canadian Human Rights Act. The bill received royal assent on June 19, 2017. Marcella Daye, of the Canadian Human Rights Commission, advised that the Commission was profoundly in favour of Bill C-16, and had undertaken a number of initiatives in support of this bill. The Commission held talks and consultations with about 270 trans people and allies across the country.

While some might argue that these initiatives are late coming and do not go far enough, it is certain that these changes are a step forward in ensuring rights for all Canadians.

Dorianne Mullin is a solicitor with the Nova Scotia Department of Justice