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.