Prisoners’ Legal Services applauds BC Corrections decision to amend its policy on transgender prisoners to comply with human rights law. The new policy is similar to the policy implemented by the Ontario Correctional service, which requires:

• placement according to gender, unless there are overriding health or safety concerns that cannot be resolved;
• transgender prisoners to be given the opportunity to choose the gender of officers performing frisk or strip searches;
• transgender prisoners to retain personal items necessary to express their gender and to be provided preferred institutional clothing;
• transgender prisoners to be integrated into the general population, rather than in solitary confinement, unless there are proven overriding health and safety concerns which cannot be resolved;
• transgender prisoners to be given private shower and toilet facilities;
• transgender prisoners to be addressed by their preferred names and gender pronouns verbally and in written documents; and
• training and education for staff on gender identity and expression.

BC’s new policy goes further to protect the rights of transgender prisoners by prohibiting double bunking (sharing a cell) if a transgender prisoner is ever housed according to their birth sex, allowing prisoners to order canteen items according to their gender, and providing training to prisoners if appropriate.

BC Corrections consulted with Prisoners’ Legal Services in developing its new transgender prisoner policy. Prisoners’ Legal Services believes the policy may be the best example of any jurisdiction in Canada and the world for the accommodation of transgender prisoners. BC transgender prisoners are now protected by policy from being put at risk of sexual harassment and assault, and are now afforded the dignity and equality that all people deserve.

May 21, 2015

The Correctional Service of Canada (CSC) has ignored the most significant recommendations for respecting the rights of transgender prisoners made by Prisoners’ Legal Services (PLS).

Over a year after PLS provided CSC with policy recommendations  regarding transgender prisoners, CSC has amended its policies with only minor changes that will have no positive impact on the lives of trans prisoners.

According to CSC policy, pre-operative trans women prisoners in Canada are forced to live in men’s prisons, which often results in women being sexually assaulted by male prisoners. Trans women prisoners may be forced to double bunk with male prisoners, they can be forced to be frisked, strip searched and urinalysis tested by male officers, and are not provided private shower facilities. Trans prisoners often have difficulty ordering personal effects according to their genders such as make up or deodorant. Despite PLS’ recommendations on each of these issues, the minor amendments to CSC policy that came into effect on April 27, 2015 have not changed any of these policies.

These significant human rights were recently protected by the Ontario Correctional Service which now allows trans prisoners to choose who will perform searches, requires trans prisoners to be housed according to their preference (unless there are proven overriding health or safety concerns), provides that trans prisoners must not be isolated (unless there are proven overriding health and safety concerns), allows trans prisoners to retain personal items, and provides for private shower and toilet facilities. The Ontario policy also provides for a comprehensive staff training program.

CSC policy continues to require trans prisoners who would otherwise qualify for sex reassignment surgery to live according to their genders in the community for 12 consecutive months. Prisoners who have been in custody for all or most of their adult lives are not able to meet this test, and for this reason will never be able to have their bodies reflect their genders, or live in an institution according to their genders, unless they are granted conditional release or reach their warrant expiry dates.

CSC also ignored PLS’ recommendation to abide by the international Standards of Care for the Health of Transsexual, Transgender, and Gender- Nonconforming People published by the World Professional Association for Transgender Health, regarding qualification for sex reassignment surgery. According to the Standards of Care, prisoners can qualify for sex reassignment surgery after living the “real life experience” of living according to one’s gender while in prison. This is also consistent with American case law that has found that a person can have a real life experience in prison (see Kosilek v. Spencer, 2012). It has also been adopted by the US Department of Justice, Federal Bureau of Prisons.

Prisoners’ Legal Services filed a complaint with the BC Human Rights Tribunal on behalf of Mr. Charles Mzite, a prisoner with HIV. While being held in provincial custody, Mr. Mzite experienced regular interruptions of his HIV medication. The Tribunal accepted his late-filed complaint in consideration of the systemic issues involving vulnerable prisoners and the public interest in having the complaint heard. The government argued the Tribunal was wrong to consider the systemic issues and the Supreme Court of BC agreed with the government.

PLS and the Community Legal Assistance Society represented Mr. Mzite in his appeal to the BC Court of Appeal. The Court of Appeal upheld the Tribunal decision to accept the late-filed complaint, accepting that the Tribunal’s remedy for an individual complaint can have a systemic impact. The Court of Appeal found that the BCSC erred in finding that the Tribunal could consider only the complainant’s personal interest in the complaint. It found “the Tribunal has been given a legislative mandate to exercise a discretion in the public interest to hear late-filed complaints.” In this case, there was evidence that BC Corrections’ policies created a systemic, ongoing problem of prisoners having HIV medication interrupted. The Court of Appeal found that the Tribunal “must be deemed well-versed…in identifying areas where public attention or scrutiny is warranted and in identifying gaps in its jurisprudence”.

Read the case here.