In 2017, Parliament passed Bill C-16, which resulted in trans-identifying inmates with intact male genitalia being allowed to transfer into federal women’s prisons. Canadian women in federal prisons have effectively ceased to be protected, now that the Canadian Human Rights Act and the Criminal Code recognize “gender identity” and “gender expression” as prohibited grounds of discrimination.
Women’s prisons in numerous provinces have since 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).”
Since 2017, female inmates have faced 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 also complained of being subjected to sexually inappropriate comments. They claim to experience anxiety, anger, depression, hopelessness, post-traumatic stress disorder and suicidality. They complain of flashbacks of stressful, violent and emotionally disturbing events involving men.
According to a 2022 Correctional Service of Canada (CSC) research paper, more than 90 per cent of transwomen prisoners were incarcerated for violent offences and 44 per cent had a history of sexual offences.
CAWSBAR argues that forcing female inmates to share intimate spaces with trans-identifying men undermines the privacy and essential human dignity of women. It is cruel and unusual punishment, which is also expressly prohibited by the Charter, to force vulnerable female inmates — many of whom have already been victims of sexual assault by men — to be jailed with trans-identifying males with intact male genitalia. Since female inmates are now less safe and secure in federal institutions than their male counterparts, the federal policy also arguably violates the Charter right to equality.
Previously, before Bill C-16 became law, the federal government defended its policy of disallowing preoperative males into women’s prisons in Kavanagh v. Canada, which was heard by the Canadian Human Rights Tribunal in 2001. During the hearing, numerous experts told the 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.
As summarized in the tribunal’s decision, one of the CSC’s witnesses argued that, “Inmates who were not truly transsexual would seek to be placed in women’s prisons, for sexual purposes.” Another expert noted that, “Over 75 per cent 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 noted 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.”
CAWSBAR’s court action against the Correctional Service of Canada will shed light on whether the federal policy change in 2017 was based on sound evidence, or on ideology.
The federal government’s irrational, harmful and ideologically driven policy should not have been imposed on female inmates in the first place. With growing evidence of serious harms, combined with an unwillingness (thus far) to repeal the current policy, women are taking this federal policy to court in defence of their rights as women.
John Carpay – National Post
