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Andrea Houston

Andrea Houston

ANDREA HOUSTON

Ontario’s jails must respect the rights of transgender people Add to ...

In a potentially precedent-setting case, a Toronto-based transsexual man is launching a human rights action against the Toronto Police Service (TPS) and the Vanier Correctional Centre for Women in Milton, Ont., alleging transphobic mistreatment.

Boyd Kodak, whose documents legally identify him as male, says police and correctional officials asked him a series of dehumanizing questions about his genitalia, confiscated his penile prosthetic and forced him to wear women’s clothes and undergarments.

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This is far from an isolated incident. It’s a significant systemic problem affecting a frequently criminalized population that is disproportionately represented in correctional institutions.

Kodak’s story follows news that UK-based comedian and trans woman Avery Edison was detained at Pearson Airport and sent to Maplehurst Correctional Centre, a men’s facility. After tweeting about her experience, many responded with outrage and demanded action. Edison was eventually transferred to a women’s facility and allowed to return to the UK.

Kodak, the 59-year-old long-time activist and well-known member of the LGBT community, was arrested and charged by Toronto police with criminal harassment on Dec. 6, 2012. The charges were withdrawn four months later. He describes his three-day experience as “horrific.”

“I was completely humiliated,” Kodak states in his claim, which was filed Dec. 6, 2013, with the Ontario Human Rights Tribunal. “I suffered injury to my dignity and to my self-worth.”

He decided to share his story after seeing the response to the Edison case. But whereas Edison’s situation merely shone a light on a serious institutional deficiency, Kodak’s human rights challenge could trigger direct and concrete change.

In addition to (or instead of) monetary compensation, the tribunal is empowered to order training, education, or policy revisions in situations where it finds that discrimination has occurred and could likely occur again. Edison sounded the alarm and got politicians, media, and the public to pay attention to a larger injustice that might otherwise have gone ignored. But as a British citizen, her chief concern (quite understandably) was getting home.

But Kodak is going the extra step to challenge the status quo and make sure no one else has to go through what he did.

For a trans person, being misgendered through the deliberate and persistent use of an incorrect pronoun can itself be a form of abuse. The treatment that Kodak alleges he received went far beyond that; more than just discrimination, it could be deemed cruel and unusual punishment.

“I was questioned about my personal life, my personal choices, my body parts, really private questions about my genitalia,” he says in an interview.

He alleges he was strip-searched and grilled by enforcement officers about what was in his underwear. Even after explaining that it was a penile prosthesis (a common thing for a trans man to possess), he says they took it, “passed it around among them, and then confiscated it.”

They then forced him to put on women’s undergarments and women’s prison wear. “I objected to being put in women’s underwear and women’s clothing,” the claim states. “I felt completely humiliated. I was told that I had no choice.” Even during his public court appearances, he was forced to appear in women’s clothes.

He says some staff went so far as to openly mock him.

The Correctional Service Canada’s (CSC) policy directive, listed under “gender identity disorder,” states “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 reality is, 100 per cent of pre-operative and non-operative trans people are sent to the wrong facility.

What makes Kodak’s case so significant is that he is actually “post-op,” and has been since the 1990s when he transitioned. That means correctional officials ignored their own policy directive.

“The key point about this is the importance of allowing people to self-identify,” says Lisa Triano, Kodak’s lawyer.

Yet, that’s not happening. According to the Ontario Human Rights Commission, correctional facilities frequently do not honour trans people’s gender identity.

“Institutions such as hospitals and prisons usually have gender-segregated facilities and services,” the OHRC states. “Transgendered people may be placed with those of the sex with which they do not identify.”

Kodak says the CSC policy needs to change immediately. He cites Toby’s Act, a 2012 amendment to the Ontario Human Rights Code, which added “gender identity” and “gender expression” to provide explicit protections for trans individuals.

Most of all, he wants to ensure what happened to him and Edison never happens to another trans person again.

“Imagine this happened to someone visiting Toronto for WorldPride this summer,” he says. “It would be an international embarrassment. Just disgraceful.”

In the Ontario legislature on Feb 18, Parkdale-High Park NDP MPP Cheri DiNovo, who introduced Toby’s Act, demanded to know why Edison’s rights were violated. “Why is Toby’s Law not being respected?”

Madeleine Meilleur, the minister of community safety and correctional services, responded by saying correctional officials are following procedure and allowing people to self-identify. However, Kodak’s case proves that wrong, and the policies that are in place are simply not working.

Kodak was not allowed to self-identify. He was ridiculed, strip-searched and unfairly interrogated.

Here’s the good news: his case will likely have a significant impact of the correctional system going forward.

The human rights tribunal can order monetary damages and mandatory equity training for correctional staff. That would be a fantastic outcome. It doesn’t mean everyone is going to change, but it’s one outcome the complaint can trigger.

The first thing that needs to happen is the CSC needs to bring their outdated policy in line with Toby’s Act, and set out clear guidelines for correctional staff that includes training and education. At the federal level, C-279, an amendment enshrining “gender identity” in the Canadian Human Rights Act and the Criminal Code, and has been stalled in the senate, needs to be adopted to send a clear message to federal jurisdictions, as well as other provinces without human rights amendments.

With all eyes on Edison, the public and media are galvanized. Suddenly all the pieces are in place for the ministry to finally take this seriously.

Andrea Houston is journalist, activist and public speaker.

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