Prime Minister Justin Trudeau promised Thursday to ensure transgender inmates can serve their sentences in prisons based on their gender identity, just as a new Correctional Service Canada policy bars the practice.
Trudeau made the pledge in response to a question from a transgender woman and advocate during a town hall in Kingson, Ont., who described Canada's current placement policy as "torture."
Trudeau said the issue wasn't on his radar, but that he would move to address it now that it is.
"I will make sure we look at it and we address it and we do right in recognizing that trans rights are human rights and we need to make sure we are defending everyone's dignity and rights in every way we can," he said.
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Trudeau's commitment comes just days after CSC released its new policy directive on trans inmates, which confirms the previous policy that bases placement on birth sex rather than gender identity.
"Pre-operative male to female offenders with gender dysphoria will be held in men's institutions and pre-operative female to male offenders with gender dysphoria will be held in women's institutions," it reads.
CSC does not track the number of trans inmates.
Correctional Investigator of Canada Ivan Zinger called it "disappointing" and inconsistent with the government's commitment to equality rights.
Issue of human rights
"In my view, there should be a presumption of penitentiary placement based on gender identity, not based on genitalia," he told CBC News. "The correctional service has not endorsed what is, in many ways, the government's commitment to promoting and protecting the rights of transgender, transexual and gender non-conforming people."
Zinger believes the current policy violates human rights, and said he intends to write to Public Safety Minister Ralph Goodale urging him to call on CSC to reconsider.
The correctional investigator's office has raised concerns about gender-sensitive procedures such as strip searches, pat-downs or urine analysis by members of the opposite sex.
Sometimes, trans inmates are double-bunked with other prisoners, and many mask their identity out of fear of exploitation, harassment, intimidation and sexual violence. Often they are held in segregation, have limited mobility or are kept in more secure prisons due to safety concerns.
New sex reassignment surgery rules
The federal prison watchdog did praise as "positive" a new policy that makes it easier for transgender inmates to get sex reassignment surgery.
Under the new rules, an offender will be eligible if they have lived in in an identity-congruent gender role for 12 continuous months and it is recommended by a specialist physician. Under the previous policy, the individual was required to have lived 12 months in the gender role in the community prior to incarceration.
Protecting against discrimination
Scott Bardsley, spokesman for Goodale, said all Canadians should be safe to be themselves, live according to their gender identity, express their gender as they choose, and be protected from discrimination.
"CSC has begun to update their guidelines on inmates who identify as transgender. This is a step to make our policies more inclusive for trans inmates. Minister Goodale recognizes that more needs to be done," he said.
Bardsley noted that Bill C-16, which would amend the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination, is moving through Parliament.
"The minister is committed to ensuring that CSC fully complies with this law and that it creates an inclusive environment that reflects its unique operational context and the population under its responsibility," he said.
Last year, Ontario became the first jurisdiction in Canada to allow inmates to serve their sentences in institutions based on self-identified gender, and to be referred to by their chosen names and preferred pronouns. The provincial government called it "the most progressive policy on the treatment of trans inmates in North America."
British Columbia became the second province to change its policy, and now permits placement according to gender identity.
'Upsetting and discriminatory'
Jennifer Metcalfe, a lawyer with the West Coast Prison Justice Society, has filed a human rights complaint against CSC to address what she calls systemic discrimination against federal trans inmates.
"If you're someone who has a woman's gender and was born with a male sex that requires you to seek out surgery to be able to live in a woman's prison and feel safe and not be at risk of sexual assault," she said. "it's extremely upsetting and discriminatory."
Other elements of CSC's policy on transgender policy:
- CSC will pay the cost of sex reassignment surgery.
- CSC will proceed without delay to determine the timing of the surgery, taking into account operational considerations and the offender's release date.
- The same health professional specialist who provided care to the offender throughout the gender transition prior to his/her incarceration will be retained, unless the offender and CSC agree to a different choice.
- The head of the institution will ensure that staff who have regular contact with transgender offenders have the necessary knowledge to effectively respond to their needs.
- Transgender offenders will be permitted to wear clothing appropriate to their self-identified gender.