If the topic wasn’t so serious, I might be laughing about the federal government’s statement of defence to a Charter challenge against one of its policies. The statement responds to the advocacy group Canadian Women’s Sex Based Rights (CAWSBAR), which is challenging the policy of allowing men who identify as women to transfer into federal women’s prisons.
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. After Parliament passed Bill C-16 to add “gender identity” and “gender expression” to the Canadian Human Rights Act and the Criminal Code, federal policy changed.
Today, women’s prisons across Canada have opened their doors to “trans-identifying” male inmates with fully intact male genitalia. As explained in current federal policy, “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).” According to a 2022 Correctional Service Canada research paper, more than 90 percent of these “trans women” prisoners were incarcerated for violent offences, and 44 percent had a history of sexual offences.
Prison time is not meant to be pleasant, but female prisoners should not have to share space with male rapists. Women are entitled to have female-only spaces.
Women in Canadian prisons now face the risk of sexual assault by trans inmates with intact male genitalia, along with the risk of sexually transmitted infections. Female inmates have reported experiencing stalking, with women being followed to the bathroom and showers, and “trans-identifying” males remaining directly outside of private stalls. Women have complained of being subjected to sexually inappropriate comments. Some are suffering anxiety, anger, depression, post-traumatic stress disorder, and suicidality. They complain of flashbacks of stressful, violent, and emotionally disturbing events involving men.
CAWSBAR’s Federal Court claim lays out plenty of harms which constitute a violation of women’s Charter right to security of the person. The group argues that forcing female inmates to share intimate spaces with “trans-identifying” men undermines the privacy and essential human dignity of women. 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 2001, before Bill C-16 became law, the federal government defended its policy of disallowing pre-operative males into women’s prisons in Kavanagh v. Canada. The government argued 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. In Kavanagh, the government argued before the Canadian Human Rights Tribunal that “inmates who were not truly transsexual would seek to be placed in women’s prisons, for sexual purposes.”
The tribunal noted that “over 75% of incarcerated women have been victims of some form of physical, sexual, emotional or psychological abuse, primarily at the hands of men,” with some inmates “so traumatized by their experiences that they are unable to deal with men at all.” The tribunal added that, “many of these women are psychologically damaged, as a consequence of the physical, psychological and sexual abuse they have suffered at the hands of men. Like transsexuals, female inmates are a vulnerable group, who are entitled to have their needs recognized and respected.”
Today, the federal government takes the opposite position in court, arguing that “accommodation of the needs of gender diverse inmates does not infringe the rights guaranteed to cisgender women inmates” by the Charter or the Canadian Bill of Rights. Canada argues that 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.”) The government argues that using the word “female” would risk “mischaracterizing or misgendering gender diverse inmates.” Were things not so serious, I would be laughing at these linguistic tricks to avoid reality and biology.
The government claims that “individualized assessments” are used when allowing men to serve their sentences in women’s prisons, explaining 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.”
However, the government also admits that these “individualized assessments” are failing to protect female inmates from sexual assault. Its statement of defence reveals that an inmate identified as “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 government also confirms that another inmate, identified as “KF/R,” was criminally charged with two counts of sexual assault after a female inmate filed a complaint in October 2024. Other sexual assault complaints involving “trans-identifying” male inmates in women’s prisons are also acknowledged in the statement of defence.
These sexual assaults of female prisoners by male prisoners are exactly the problem that CASWBAR seeks to solve through its court action. There were no sexual assaults of this kind under the former policy, when only “fully transitioned” men were eligible to transfer into women’s prisons.
The federal government has now provided a helpful basis for CAWSBAR to pursue justice.
John Carpay, BA, LLB, is President of the Justice Centre for Constitutional Freedoms.
