The following is the last of three posts with excerpts from Prisoners’ Legal Services’ letter to the Correctional Service of Canada, dealing with searches, urinalysis testing and access to personal items.
(Omissions to existing policy are indicated by struck out text and additions are indicated by underlining.)
4. Search and urinalysis policies
CSC’s policy regarding frisk searches of transgender prisoners allows correctional officers to decide whether a male or female officer will do the search. CSC’s strip search policy provides for the establishment of search protocols, which may include a “split search” involving a female officer searching the top part of a transgender woman and a male officer searching the bottom part. The policy does not offer the prisoner her choice as to the gender of the officers conducting the search.
In 2006, the Peel Regional Police established a policy for searching transgender and intersex people which allows the person being strip searched to choose between being searched by male officers, female officers or a split search. The policy change was made after the Human Rights Tribunal of Ontario upheld a human rights complaint brought by Rosalyn Forrester, a pre-operative transgender woman whose request for a female officer to conduct a strip search was denied. The Tribunal found that the police decision to have a male conduct the search was humiliating and ordered the change to policy (Forrester v. Peel Regional Police Services Board, 2006 HRTO 13).
CSC policy regarding the searching and urinalysis testing of prisoners does not adequately consider the vulnerabilities or human rights of transgender prisoners and is not in accordance with the current state of the law in Canada.
Prisoners’ Legal Services recommends that Commissioner’s Directive 566-7 “Searching of Inmates” be amended to require that transgender or intersex prisoners be provided a choice of a male or female officer to conduct searches, as follows.
Commissioner’s Directive 566-7 “Searching of Inmates” (2012-06-13)
ANNEX E: TRANSGENDER SEARCHING REQUIREMENTS
It is the policy of the Service that the searching of transgender and intersex persons be conducted under the law with full respect for human dignity and according to the highest standards of professional skill.
A prisoner to be searched may self-identify as a transgender or intersex person. In most cases, it will likely be possible to recognize or accept a transgender prisoner on self-identification where it is accompanied by objective evidence such as dress, breast development, personal identification or medical evidence.
If an officer has serious reason to doubt the prisoner’s self-identification as transgender, the officer shall defer to the Correctional Manager who shall make the final determination based on a private interview with the person.
Transgender or intersex prisoners shall be offered the option of a female or male officer conducting a frisk search.
Upper body searches involve ensuring that the bra line be searched moving up from the bottom around the bra line to the top down the middle of the breast. The inmate will pull the bra away from the body so that any contraband will fall out.
Transgender or intersex prisoners shall be offered a choice of three (3) options as to the process of the strip search to be conducted:
- Male officer(s) only;
- Female officer(s) only; or,
- A split search.
A split search shall be conducted with female officer(s) conducting their stage of the search privately. Male officers shall not be in the search area at the same time.
Officers are not permitted to “opt out” of the strip search of a transgender or intersex prisoner and shall perform their duties as assigned. The Correctional Manager may relieve an officer of their duties only if the officer has significant human rights interests of their own to protect. Such circumstances shall be documented by the Correctional Manager.
An individualized search protocol will be created for all transgender inmates. Protocols will be developed and placed as an alert on OMS. This annex will assist institutions in developing protocols for the searching of transgender inmates. A sample protocol is included for reference.
Searches will be conducted in a manner consistent with the CCRA. The procedures of this CD also consider the privacy and dignity of the individual being searched. Given the above, where an offender has been diagnosed with gender identity disorder as per CD 800 – Health Services, the searching of transgender inmates, especially strip searching, will take into consideration the gender physiology of those individuals. To respect the dignity of the inmate, individualized protocols for searching will be put in place through private consultation with the inmate.
Prisoners’ Legal Services recommends that Commissioner’s Directive 566-10 “Urinalysis Testing” be amended to require transgender or intersex prisoners to be provided a choice of a male or female officer to conduct the urinalysis test, and the option of following procedures for prisoners with “shy bladder syndrome”, as follows.
Commissioner’s Directive 566-10 “Urinalysis Testing” (2012-06-13)
Collection of Samples – Institution and Community
31. The Collector will be of the same sex gender as the offender.
32. Transgender or intersex prisoners shall be offered a choice of a male or female Collector, as well as the option of following the procedure for prisoners with shy bladder syndrome under Annex D.
Collectors are not permitted to “opt out” of urinalysis testing of a transgender or intersex prisoner and shall perform their duties as assigned. The Correctional Manager may relieve an officer of their duties only if the officer has significant human rights interests of their own to protect. Such circumstances shall be documented by the Correctional Manager.
An individualized urinalysis protocol will be created for all transgender inmates. Protocols will be developed and placed as an alert on OMS.
To respect the dignity of the inmate, individualized protocols for urinalysis testing will be put in place through private consultation with the inmate.
Annex D: Shy Bladder Syndrome And Urinalysis Collection
Shy bladder syndrome is a condition where someone is unable to provide a urine sample under direct observation.
In the case of shy bladder, the least restrictive option available is to have mirrors strategically placed so that the Urinalysis Collector can still observe the offender donating in order to ensure chain of custody.
Where mirrors cannot or are not being used or the use of mirrors does not resolve the shy bladder concern, the following steps will be followed:
- During a demand for a urine sample, where the offender states that he/she is unable to provide due to shy bladder, you proceed to informal resolution.
- In these cases only, informal resolution consists of the Urinalysis Collector offering the offender a strip search, in accordance with CSC policy, including protocols for transgendered inmates.
- After the offender has been strip searched, and the collection area has been thoroughly searched, the offender proceeds to the collection area unobserved and provides a sample. When the offender hands in the specimen bottle, the Urinalysis Collector then processes the sample, as per procedure.
- In the institution, if the inmate continues to claim that he/she is unable to provide and refuses to submit to a strip search, an Inmate Offence Report and Notification of Charge CSC/SCC 0222) for refusing to provide a sample under paragraph 40(l) of the CCRA is completed indicating that informal resolution was sought by the Collector and was refused by the inmate.
5. Personal Effects
Transgender women prisoners routinely report difficulties in the process for ordering personal items (such as makeup) and clothing.
Prisoners’ Legal Services recommends that Commissioner’s Directive 566-12 “Personal Property of Offenders” be amended to provide transgender or intersex prisoners the same process for ordering and receiving personal effects for men or women as other prisoners.