OTTAWA, ON: The Justice Centre for Constitutional Freedoms announces that the Federal Court has dismissed the Federal Government’s motion to strike a constitutional challenge brought by Canadian Women’s Sex-Based Rights (CAWSBAR) and has also granted CAWSBAR public interest standing to proceed with the case on behalf of federally incarcerated women.
The constitutional challenge concerns Correctional Service Canada’s Commissioner’s Directive 100: Gender Diverse Offenders, which permits the transfer of trans-identifying male inmates into women’s federal prisons. Lawyers funded by the Justice Centre filed the claim on behalf of CAWSBAR in April 2025.
In the ruling released on May 14, 2026, Associate Judge Catharine Moore dismissed the federal government’s motion to strike the constitutional challenge. The Crown had argued that the claim allegedly lacked sufficient material facts and disclosed no reasonable cause of action. The Court rejected those arguments, finding that the claim properly raises alleged violations of sections 7, 12, and 15 of the Charter as well as provisions of the Canadian Bill of Rights. Sections 7, 12, and 15 protect the rights to life, liberty, and security of the person; freedom from cruel and unusual treatment or punishment; and equality before and under the law. The Court further concluded that it was not “plain and obvious” that the claim could not succeed.
In a separate ruling, the Court granted CAWSBAR public interest standing, accepting evidence that federally incarcerated women may be unable or unwilling to bring claims themselves because of fears of reprisals, institutional consequences, or impacts on parole decisions. The Court also accepted that the case raises issues of public importance involving a vulnerable population. In its decision, the Court noted evidence that many federally incarcerated women have histories of physical and sexual abuse.
Constitutional lawyer Chris Fleury said, “These decisions ensure that serious constitutional concerns about the treatment and safety of federally incarcerated women will receive a full hearing before the Court.”
“The Court recognized that incarcerated women are not realistically in a position to bring these claims on their own,” he added.
Prior to 2017, Correctional Service Canada policy generally required male inmates seeking transfer to women’s institutions to undergo sex reassignment surgery. Following legislative changes adding gender identity and expression as protected grounds under federal law, Correctional Service Canada adopted policies permitting transfers based on gender identity rather than biological sex. The current policy, Commissioner’s Directive 100, came into force in May 2022.
The Court has not yet scheduled the next hearing date in the case.
The Justice Centre is Canada’s leading civil liberties organization fighting for Charter rights and freedoms in the courts of law and in the court of public opinion. Founded in 2010, the Justice Centre funds lawyers across Canada, relies entirely on voluntary donations to carry out its mission, and issues official tax receipts to donors.
