Transgender Prisoners – Access to Sex Reassignment Surgery
On March 19, 2014, Prisoners’ Legal Services made a number of recommendations to the Correctional Service of Canada for improving the rights of transgender prisoners.
The following is the first of three posts with excerpts from Prisoners’ Legal Services’ letter to the Correctional Service of Canada, dealing with access to sex reassignment surgery.
Prisoners’ Legal Services is the only legal aid clinic for prisoners in Canada. We have been serving the legal needs of prisoners in British Columbia since 1980. Over the years we have assisted a number of transgender prisoners facing unique challenges while serving their sentences.
Under current CSC policies, pre-operative transgender women prisoners in federal custody are forced to live in men’s prisons. These women are most likely to be considered “protective custody” prisoners due to their vulnerable status as women with male biology. They may also rank high on the “institutional adjustment” scale, resulting in a higher level of security classification. These factors mean that these women are required to live in prison with the most violent male sex offenders in Canada. Needless to say, this situation puts transgender women at great risk of sexual assault while incarcerated.
Prisoners’ Legal Services has received reports from transgender women that they are required to “double bunk” with male prisoners. This practice puts the women at constant risk of, and in constant fear of, sexual assault. Transgender women are forced to be strip searched and urinalysis tested by male guards, which is extremely humiliating. They face daily gender-based harassment by both prisoners and guards, including being called “it”, “freak”, “fag”, “queer” and being referred to in the masculine. Transgender women also report facing routine difficulties receiving female personal items and clothing.
Transgender women who have lived as women for their entire adult lives, and who have been approved for sex reassignment surgery (“SRS”) by gender identity medical experts are routinely denied surgery by CSC, despite current policy that indicates CSC should provide surgery. The process often drags out until the prisoner has been released to the community. CSC policy refuses surgery for women who have been in prison most or all of their adult lives because (according to CSC’s interpretation) they do not meet the “real life test” as set out in the outdated 2001 Harry Benjamin Standards of Care.
The following are Prisoners’ Legal Services’ recommendations for policy reforms that, in our view, would be a step toward respecting the dignity of transgender prisoners in federal custody. Omissions to existing policy are indicated by struck out text and additions are indicated by underlining.
1. Sex reassignment surgery
CSC Commissioner’s Directive 800 “Health Care” states:
36. Sex reassignment surgery shall be considered during incarceration only when:
(a) a recognized gender identity specialist has confirmed that the offender has satisfied the real life test, as described in the Harry Benjamin Standards of Care, for a minimum of one year prior to incarceration; and
(b) the recognized gender identity specialist recommends surgery during incarceration.
37. If the recognized gender identity specialist provides an opinion that sex reassignment surgery is an essential medical service under CSC’s policy, CSC will pay the cost. In making the decision the specialist shall consult with CSC.
The 2001 Harry Benjamin Standards of Care require 12 consecutive months of real life experience. The standards do not specifically exclude life in prison from “real life experience”.
The policy is based on Kavanagh v. Canada (Attorney General),  C.H.R.D. No. 21. In that case, the Tribunal agreed with CSC’s experts who opined that a transgender woman living in the “artificial” prison environment could not fulfill the “real life experience” requirement for SRS.
Kavanagh was decided before the implementation of the most recent version of the World Professional Association for Transgender Health (“WPATH”) (formerly the Harry Benjamin International Gender Dysphoria Association) Standards of Care for the Health of Transsexual, Transgender and Gender Nonconforming People (7th Version, 2011) (the “2011 Standards of Care”). The 2011 Standards of Care indicate that they apply “in their entirety” to all transgender people, “irrespective of their housing situation. People should not be discriminated against in their access to appropriate health care based on where they live, including institutional environments such as prisons…” The standards specify that health care in prison “should mirror that which would be available to [prisoners] if they were living in a noninstitutional setting within the same community”. The 2011 Standards of Care also require 12 continuous months of living in a gender role that is congruent with the patient’s identity before SRS.
The experts who testified on behalf of CSC in Kavanagh were from the former Clarke Institution (now the Gender Identity Clinic at the Centre for Addiction and Mental Health). After much criticism by the transgender community and international transgender experts, the Gender Identity Clinic has undergone significant changes to its policies, and now adopts the 2011 Standards of Care.
The 2011 Standards of Care were written by Dr. George Brown. Dr. Brown has extensive experience working with transgender prisoners. In Kavanagh, the Tribunal was concerned that the gender experts who testified on behalf of the Commission lacked expertise in relation to prisoners with gender dysphoria.
Dr. Brown’s 2009 recommended revisions to the Standards of Care emphasize the importance of an individualized assessment of patients’ medical needs, regardless of whether they are institutionalized. Dr. Brown also stresses that the real life experience can be met in cases where prison is a person’s “real life” for extended periods of time. He is critical of policy that bases housing arrangements on the appearance of external genitalia rather than on the gender of the individual, given the safety issues faced by transgender prisoners.
These concepts were confirmed by the United States District Court of Massachusetts in Kosilek v. Spencer, 2012. The Court finds that “[a]dequate medical care also requires an individualized assessment of a patient’s medical needs” and that “a person can have a ‘real life experience’ in prison”. The Court finds that an expert called by the respondent was not a “prudent professional” on the basis that “he does not accept certain fundamental features of the Standards of Care, which “describe the quality of care acceptable to prudent professionals who treat individuals suffering from gender identity disorders.”
The 2011 Standards of Care are recognized internationally as the appropriate standards for the treatment of transgendered people, including prisoners. The U.S. Department of Justice, Federal Bureau of Prisons revised its policy on May 31, 2011 regarding the treatment of transgender prisoners to be in compliance with the 2011 Standards of Care. The policy now provides: “The development of the treatment plan is not solely dependent on services provided or the inmate’s life experiences prior to incarceration”. The policy specifies that evaluation of transgender prisoners by specialists “will include an assessment of the inmate’s treatment and life experiences prior to incarceration as well as experiences during incarceration (including…real life experience consistent with the inmate’s gender identity…)”.
Prisoners’ Legal Services recommends that the following changes be made to Commissioner’s Directive 800, “Health Services” (2011-04-18).
GENDER IDENTITY DISORDER DYSPHORIA
- CSC recognizes that some offenders may have gender identity disorder dysphoria. Where there are reasonable grounds to believe that such a condition exists, a referral by the institutional Psychiatrist shall be made to a Psychiatrist who is a recognized expert in the area of gender identity, if and when available, for an assessment and possible diagnosis of gender identity disorder dysphoria. For those diagnosed with gender identity disorder dysphoria, there shall be continuity of care with respect to the provision of health services.
- Inmates with diagnosed gender identity disorder dysphoria shall be able to initiate or to continue hormone therapy as prescribed by either a Psychiatrist who is a recognized expert in the area of gender identity or other specialist Physicians in the area of gender identity disorders dysphoria or endocrinology, if and when available.
- … [See below regarding placement].
- … [See below regarding placement].
- Sex reassignment surgery shall be considered during incarceration only offered when:
- a recognized gender identity specialist has confirmed that the offender has satisfied the real life test, as described in the Harry Benjamin Standards of Care, for a minimum of one year prior to incarceration criteria for surgery under the current version of the World Professional Association for Transgender Health “Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People” as these standards are updated; and
- the recognized gender identity specialist recommends surgery during incarceration.
- If the recognized gender identity specialist provides an opinion that sex reassignment surgery is an essential medical service under CSC’s policy, CSC will pay the cost. In making the decision the specialist shall consult with CSC.
- CSC shall proceed without delay to determine the timing of the surgery taking into account operational considerations and the offender’s release date.
- The recognized gender identity specialist shall normally be the same specialist who provided care to the offender throughout the transition prior to his or her incarceration, unless the offender and CSC agree to a different choice of gender identity specialist.
- The Institutional Head shall ensure that staff who have regular contact with offenders with gender identity disorder dysphoria have the necessary knowledge to effectively respond to their needs.
- Subject to operational considerations, offenders diagnosed with gender identity disorder dysphoria shall be permitted to cross-dress wear clothing appropriate to their gender.
 See G.R. Brown, “Autocastration and Autopenectomy as Surgical Self-Treatment in Incarcerated Persons with Gender Identity Disorder” (13 May 2010) International Journal of Transgenderism and G.R. Brown, “Recommended Revisions to the World Professional Association for Transgender Health’s standards of Care Section on Medical Care for Incarcerated Persons with Gender Identity Disorder” (1 April 2009) International Journal of Transgenderism.