For over 2 years, male offenders in Canada have been allowed to transfer into women’s federal prisons if they declare that they have a female gender identity. Overnight, the Liberal government swooped in and compelled the Correctional Service of Canada (CSC) to alter its transgender accommodation policy to support these transfers. There has been no discussion in Canada concerning the fact that granting primacy to men’s declaration that they are women over women’s Charter based rights ,to security of the person and freedom from discrimination on the basis of sex, presents a major constitutional challenge.
What is gender identity? No one really knows. It is something that we are simply supposed to accept like transubstantiation. What is certain is it cannot be defined without relying on nebulous internal notions of self and adherence to, sometimes insulting and always retrograde, sexist stereotypes.
The way the CBC framed this erosion of sex segregation in federal prisons as an uncomplicated human rights triumph is truly bizarre. And the manner in which the Liberal government presented their role in implementing this policy is so incoherent, inconsistent, and overtly propagandistic that it appears to have been staged. What follows is my reasoning for maintaining this.
Bill C-16 was passed in the House of Commons in May 2016. It added gender identity or expression to the list of prohibited grounds for discrimination in the Canadian Human Rights Act and to the list of characteristics of identifiable groups protected from hate propaganda in the Criminal Code.
The following December, as the bill was making its way through the ratification process, an article appeared in the CBC titled “Gender identity vs. genitalia: Prison policy changes on the way for trans inmates”. The sub header reads “Correctional Investigator Howard Sapers calls for placement based on gender identity”. The duty of the Correctional Investigator (CI) is to act as an ombudsman for federal offenders. Seeing as former CI Sapers, as well as current CI Ivan Zigler, are adamant supporters of men’s right to transfer into women’s prisons it begs the question to whom should incarcerated women turn to voice complaint?
In addition to the enthusiasm for this policy expressed by the CI , this article quotes Scott Bardsley (rep for then Public Safety Minister Ralph Goodale) as saying “the government will ensure that all policy changes comply” with Bill C-16. It also states that Bardsley confirmed that the CSC would be amending both its policy on sexual reassignment surgery (SRS) and its accommodation policy.
On January 9th CSC released its updated policy in respect to transgender inmates. They made access to SRS more attainable. Previous to this revision, in order to qualify for SRS, an inmate had to live in their (so-called) gender for a period of 12 months and this had to occur outside of an incarceration setting. This criteria was changed to allow the 12 month period to occur in prison. The first formal policy allowing penis-less men accommodation, on a case by case basis, in a women’s federal prison was implemented in 1982 but SRS was not covered by CSC’s health policy. CSC began covering the cost of SRS after a 2001 human rights tribunal ruling (Kavanagh v. Canada) deemed CSC’s blanket ban on SRS as discriminatory on the basis of sex and disability.
CSC’s coverage of SRS facilitated the transfer of incredibly violent men into women’s prisons such as convicted infant rapist Adam Laboucan. Laboucan has been designated a dangerous offender. Serial pedophile Matthew Harks has also spent numerous stints in women’s prisons and halfway houses where he has left a trail of abuse behind him. The notion that a penis-less man is somehow rendered safe to house with women is a myth. There is no sound logic, and certainly no respect for the safety of female inmates or the children who participate in the Institutional Mother-Child Program, underpinning this policy.
I have been accused of vilifying male offenders and treating female offenders as if they were angelic. Perhaps it is important to state what, in my mind, should go without saying. The government has a duty to treat everyone involved in the correctional system with basic human decency. Any practice, policy, or law that exalts irrational demands over the facts of material reality or women’s basic human rights is unjust. Furthermore, all incarcerated women, regardless of conviction, deserve to be free from male violence. The differences in strength, criminality, and behaviour between male and female offenders is irrefutable and it is reflected in the vastly different levels of security required in men’s and women’s prisons.
Importantly, in CSC’s updated transgender policy they chose not to change the accommodation policy. It maintained that only men who had removed their penis could be considered for accommodation in a women’s facility. All other male offenders, regardless of declaration of identity, were to be housed in men’s facilities. This was at odds with the statement that Bardsley had made weeks earlier.
On January 12th, a few days after CSC’s revised policy was announced, the PM attended a town hall in Kingston, Ontario. A man, whom the PM addressed as “ma’am”, named Teresa Winsdor expressed concern over the housing of men, who claim they are women, in men’s prisons. Windsor decribed this as “torture”. The PM responded by saying that while he was aware of pressures facing LGBT people this wasn’t “one he had ever thought of”. Despite this absence of thought he confirmed that he would make the change and that it was his hope that we were moving forward on these issues even without his “leaning in on it”.
The next day the CBC’s Kathleen Harris reported that CSC had flipped on its freshly released policy and inmates would now be housed on the basis of gender identity, not sex. Harris either didn’t pick up on, or intentionally suppressed, the obvious inconsistency in the Liberal framing of this policy as changing on a whim. A clearly unsupportable claim seeing as the previous month Harris had reported Bardsley’s confirmation that this change was in the works. The manner in which this policy was altered makes it apparent that granting male inmates the dubious right to choose accommodation in a women’s prison was a central goal of the Liberal government’s vision for Bill C-16. The swiftness with which they overrode CSC’s policy meant that within weeks of the ink being dry on Bill C-16 the transfers of male offenders into women’s prisons on the basis of gender identity began.
The article from December had claimed that there were “growing calls to place offenders based on gender identity, not genitalia”. Growing calls from whom exactly? I suspect the answer is a small group of lobbyists, corrupt politicians, and the ideologically possessed. They certainly did not ask Canadian women.
Postscript: I recognize that this is a convoluted issue so I wanted to reiterate the timeline in which the CBC reported the change in CSC policy.
December 29th, 2016 – A rep for the Minister of Public Safety confirms that CSC will be amending its accommodation policy in respect to transgender offenders
January 9th, 2017 – CSC releases an updated policy on transgender offenders but does not change its accommodation policy, males with their genitals intact will continue to be housed in men’s prisons.
January 12th, 2017 – Prime Minister Trudeau in response to a question at a town hall agrees to change the accommodation policy for transgender prisoners. He makes this commitment despite claiming never to have thought about it before
January 13th, 2017 – The CBC announces that the policy has flipped and transgender offenders will be accommodated on the basis of their gender identity, not their sex. This is eventually codified as the interim policy Bulletin 584.
June 19, 2017 – Bill C-16 receives Royal Assent
July 21, 2017 – The CBC reports that contract killer Fallon Aubee is the first transgender inmate approved to transfer into a women’s federal prison on the basis of gender identity.