Transgender Prisoners – Institutional Placement and Double bunking
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 second of three posts with excerpts from Prisoners’ Legal Services’ letter to the Correctional Service of Canada, dealing with the placement of transgender prisoners according to genitalia and double bunking.
(Omissions to existing policy are indicated by struck out text and additions are indicated by underlining.)
CSC’s policy requires transgender clients to be placed in institutions according to their genitals rather than their genders:
34. Pre-operative male to female offenders with gender identity disorder shall be held in men’s institutions and pre-operative female to male offenders with gender identity disorder shall be held in women’s institutions.
The Tribunal in Kavanagh considered the safety of other female prisoners who would potentially be housed with a transgender woman with a functioning penis when it upheld CSC’s policy on institutional placement.
Since Kavanagh, the issue of institutional placement has been considered by governments internationally. In the United Kingdom, the Ministry of Justice introduced guidelines on the rights of transgender prisoners that require placement of transgender prisoners, who are legally recognized as women, in female prisons. Legal recognition requires two years of living as a woman and two physicians’ diagnoses of gender identity disorder.
The United States National Prison Rape Elimination Commission produced an extensive report in June 2009 to inform of the development of standards for correctional facilities so the facilities can work toward the elimination of sexual abuse in prisons. The Report notes that “male-to-female transgender individuals are at special risk.” It states that “the Commission requires individualized determinations based on other factors in addition to the person’s current genital status” in determining whether to house transgender individuals in men’s or women’s facilities.
On May 16, 2012, the US Department of Justice Attorney General signed the National Standards to Prevent, Detect, and Respond to Prison Rape. These rules prohibit placement of prisoners to facilities “based on genital status”:
Rather, the agency must consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems, giving serious consideration to the inmate’s own views regarding his or her own safety. In addition, transgender and intersex inmates must be given the opportunity to shower separately from other inmates.
The current state of international law demonstrates that it is discriminatory to place transgender women who have not undergone SRS in men’s prisons.
Prisoners’ Legal Services recommends that the following changes be made to Commissioner’s Directive 800, “Health Services” (2011-04-18).
35. Pre-operative male to female offenders with gender identity disorder shall be held in men’s institutions and pre-operative female to male offenders with gender identity disorder shall be held in women’s institutions. Transgender or intersex prisoners who identify as women, and who are diagnosed with gender identity disorder dysphoria, shall not be refused placement in a women’s institution if requested. Transgender or intersex prisoners who identify as men, and who are diagnosed with gender identity disorder, shall not be refused placement in a men’s institution if requested.
36. For all placement and program decisions, individual assessments shall be conducted to ensure that offenders diagnosed with gender identity disorder dysphoria are accommodated with due regard for the vulnerabilities with respect to their needs, including safety and privacy.
In the alternative, Prisoners’ Legal Services recommends a policy that requires decisions to place transgender or intersex women prisoners at men’s or women’s institutions to be based on an individualized assessment of the safety of both the transgender or intersex prisoner and other prisoners.
3. Double bunking policy
CSC policy requires an assessment to be completed before prisoners are required to share a cell. Criteria include an assessment of a prisoner’s vulnerability and potential for victimization, whether the person has a history of predatory or permissive behaviour that could undermine safety, and the person’s criminal record. Despite this requirement, Prisoners’ Legal Services has received reports of transgender women being required to double bunk with male prisoners against their wishes. CSC’s policy contains no prohibition against double-bunking a transgender prisoner and no requirement that the assessment be based on private interviews with the prisoners. (See Commissioner’s Directive 550 “Inmate Accommodation”, ¶ 23).
In New Zealand, Department of Corrections’ policy 1.08 “Shared Accommodation Cell Risk Assessment” provides that transgender prisoners are entitled to single cell accommodation if they choose, or to share a cell with another transgender prisoner if appropriate.
In the UK, as noted above, transgender prisoners have the right to be housed in institutions according to their gender. Policy also provides that if a transgender woman refuses transfer to a women’s prison, “she must be held separately and according to a female prisoner regime” in the men’s prison.
The US Department of Justice National Standards to Prevent, Detect, and Respond to Prison Rape, referred to above, call for individual assessments of whether a placement would ensure the safety of transgender and intersex prisoners.
Prisoners’ Legal Services recommends that Commissioners’ Directive 550 “Inmate Accommodation” be amended as follows.
Commissioner’s Directive 550, “Inmate Accommodation” (2013-02-12)
INMATE PLACEMENT CRITERIA
23. Where it is necessary to accommodate two inmates in a cell, an assessment must be completed to determine who will share accommodation with whom. Assessments shall take into consideration information provided by the inmates in a private interview. The assessment must consider the following criteria based on information available:
a. For both offenders, the nature and gravity of their offences and the degree of responsibility of each offender.
b. Compatibility – Is there an existing incompatibility issue between the inmates, as defined in CD 568-7 – Management of Incompatible Offenders and as listed in OMS?
c. Vulnerability – Does the inmate have a history of being victimized by others or is it assessed that there is a possibility that the inmate could be victimized by another inmate living in the same cell?
d. Predatory/permissive behaviour – Does the inmate’s behaviour have the potential to undermine the safety and security of the inmate with whom he/she shares a cell
e. Preventive security considerations – Does preventive security information exist that suggests the inmates proposed to share a cell would jeopardize the safety and security of the institution or the safety and security of another person?
f. Medical information – Does the inmate have a medical condition that would be negatively affected by placement in a cell with another inmate? This information should be confirmed through Health Services.
g. Criminal profile – Does information exist in the criminal profile that suggests the inmate would pose a risk to the safety and security of another person if he/she were required to share a cell? The Case Management Team should be consulted when making this determination.
h. Psychological information – Does information exist that indicates an inmate’s psychological health or psychological or psychiatric treatment would be negatively affected by placement in a cell with another inmate? This information should be confirmed through the Case Management Team or Psychological Services.
i. Security threat group – Does the inmate have a past or current affiliation or membership to a security threat group?
24. In no case will a transgender or intersex female prisoner be required to share accommodation with a male prisoner.
25. Transgender or intersex prisoners shall be provided private shower facilities upon request.