One year ago, Ontario became the first jurisdiction in North America to allow transgender people to identify their gender when admitted to correctional institutions, regardless of whether they have undergone sex-reassignment surgery. Its purpose: to better protect the rights of transgender people in the province’s prisons.
In addition to new sensitivity training for all staff, the policy replaced the case-by-case approach that prison administrators had previously used when deciding where to place transgender inmates. In practice, administrators almost always made these decisions according to the sex assigned to the inmate at birth. At one point, the government even considered opening a transgender unit at the Vanier Centre for Women in Milton. The new policy attempts to address the extraordinarily high levels of violence, discrimination, and harassment experienced by transgender people in custody, particularly when they are held in institutions that do not accord with their gender identity and gender expression. While a year later some progress has been made both in Ontario and elsewhere in terms of where transgender inmates are placed, much work remains to be done.
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When the government announced the new policy on a cold, grey morning last January 26, a number of speakers, including Glen Murray, Ontario’s openly gay Minister of the Environment and Climate Change, and Yasir Naqvi, the minister responsible for developing the policy, underscored the need to make human rights real for transgender people in the province.
What none of the speakers mentioned, however, was that the policy was created largely in response to two human rights complaints that had not yet been settled. At the time, the government faced the choice of either introducing a new policy or waiting for the Human Rights Tribunal of Ontario to force its hand.
One such complaint was the high-profile case of Avery Edison, a transgender woman from the United Kingdom. After arriving in Toronto and being detained at Pearson Airport for overstaying a previous visa, Edison was placed in a men’s jail despite carrying a passport that identified her as a woman. Following international outcry, officials transferred her to the adjacent women’s facility. She has since settled her human rights complaint against the government.
Following Ontario’s lead, the government of British Columbia announced a similar policy in November 2015. B.C now places inmates according to the individual’s gender, rather than the sex assigned to them at birth. In addition, transgender people must be integrated within the general prison population, unless there are “overriding health and/or safety concerns that cannot be resolved.”
To date, the federal landscape has been less promising. Correctional Service Canada, the federal agency responsible for administering prison sentences of two years or longer, has failed to demonstrate the same leadership when it comes to respecting the human rights of transgender people in prisons.
The current policy is a relic of another era, exposing transgender people to the constant threat of violence. Among other things, the gender dysphoria policy requires that those who have not undergone sex reassignment surgery be housed in facilities according to the sex assigned to them at birth. The policy also says that transgender people must live in their gender for a period of one year before being able to qualify for sex-reassignment surgery. For reasons that remain unclear, any time spent in prison does not count towards the one-year requirement. For federal correctional administrators, prison does not constitute real life.
The result is that transgender people serving time in federal institutions are almost never placed in prisons according to their gender identity and gender expression. In practice, prison administrators recognize the danger of this approach. Transgender women, who are particularly vulnerable to abuse in men’s institutions, are often placed in long-term solitary confinement for their own protection — a practice the United Nations’ Special Rapporteur has identified as a form of torture.
Given that two of Canada’s largest provinces have updated their policies within the last year, it seems logical to expect that a federal government that purports to be committed to human rights would follow suit. To date, there has been no movement.
As an immediate response to the daily human rights abuses experienced by transgender people, the recent developments in Ontario and British Columbia appear to be a welcome change, but their longer-term effects remain to be seen. On Nov. 14, 2015, the Ontario government said that there were 12 transgender inmates in its jails. While numbers fluctuate, the total incarcerated population in Ontario is approximately 8,000.
It would be a mistake, however, to assume that tinkering with the edges of prison policy will ever bring about a human rights revolution for transgender people in Canada. There is a large body of literature demonstrating that Canada’s criminal legal system disproportionately targets indigenous people, members of racialized communities, and poor people, among others. A transgender person who also lives with one or more of these identities is exponentially more likely to come into conflict with the criminal law.
On its first anniversary, the Ontario policy should be commended. But it is now time to do the more difficult work of addressing the widespread exclusion that transgender people — particularly those who dwell at the intersection of multiple categories of identity and experience — encounter on a daily basis. It is also time to seriously consider alternatives to incarceration. These avenues may help to account for the underlying reasons why members of our community come into conflict with the criminal legal system in the first place.
Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. He writes about criminal law, sentencing, sexuality and gender identity.