Once upon a time, the only men who were eligible to transfer into a women’s prison were those who had their male genitalia surgically removed. The federal government defended its policy of disallowing pre-operative males into women’s prisons in Kavanagh v. Canada. Previously, the federal government argued before the Canadian Human Rights Tribunal that most male-to-female transsexual inmates are sexually attracted to women and pose a risk of preying on female prisoners, many of whom have suffered sexual abuse. The government also pointed out the obvious: that “inmates who were not truly transsexual would seek to be placed in women’s prisons, for sexual purposes.”
However, after Parliament passed Bill C-16 to add “gender identity” and “gender expression” to the Canadian Human Rights Act and the Criminal Code, women’s prisons across Canada opened their doors to “trans-identifying” male inmates with fully intact male genitalia.
Current federal policy states that offenders “will be placed according to their gender identity or expression in a men’s or a women’s institution, if that is their preference, regardless of their sex (i.e., anatomy).” More than 90% of these “trans women” prisoners were incarcerated for violent offences, and 44% had a history of sexual offences, according to a 2022 Correctional Service Canada research paper,
Prison time is not meant to be pleasant, but female prisoners should not have to share spaces with male rapists. Women are entitled to their female-only spaces.
Women in Canadian prisons now face the risk of sexual assault by trans inmates with intact male genitalia. Female inmates have reported experiencing harassment and stalking, with women being followed to the bathroom and showers, and “trans-identifying” males remaining directly outside of private stalls. Anxiety, anger, depression, post-traumatic stress disorder, and suicidality are the predictable consequences of this policy.
The non-profit advocacy group Canadian Women’s Sex Based Rights (CAWSBAR) has launched a Charter challenge to this policy in Federal Court. CAWSBAR argues that forcing female inmates to share intimate spaces with “trans-identifying” men undermines the privacy and essential human dignity of women, thereby violating the Charter section 7 right to security of the person. Since female inmates are now less safe and secure in federal institutions than their male counterparts, the federal policy also violates the Charter right to equality.
In its Statement of Defence, the federal government argues that “accommodation of the needs of gender diverse inmates does not infringe the rights guaranteed to cisgender women inmates;” allowing men with intact male genitalia to transfer into women’s prisons is “an ameliorative policy.” The government’s Statement of Defence repeatedly speaks of “cisgender women” (not “women” or “females”) and “gender diverse inmates” (not “trans-identifying men” or “trans women”). Using linguistic tricks to avoid reality and biology, the government argues that the word “female” risks “mischaracterizing or misgendering gender diverse inmates.” The government explains that “newly sentenced gender diverse offenders” are “provided with an opportunity” to “indicate their preferred institution type (men’s or women’s) for intake admission.” Men can transfer into women’s prisons only after going through an “individualized assessment.”
However, these “individualized assessments” are failing to protect female inmates from sexual assault, according to the government’s Statement of Defence. The inmate “S/M” was criminally charged with one count of sexual assault and one count of criminal harassment in May 2020, after a female inmate filed a complaint. The inmate “KF/R” was criminally charged with two counts of sexual assault after a female inmate filed a complaint in October 2024.
These sexual assaults of female prisoners by male prisoners are the problem that CASWBAR seeks to solve through its court action. Through its defence, the federal government has now provided a helpful basis for CAWSBAR to pursue justice, as it seeks to restore the former policy when only “fully transitioned” men were eligible to transfer into women’s prisons.
John Carpay, BA, LLB, is President of the Justice Centre for Constitutional Freedoms.
