Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. He writes about criminal law, sentencing, sexuality, and gender identity. Follow him on Twitter @kylekirkup.
On Monday, Ontario's Ministry of Community Safety and Correctional Services announced a new policy designed to better protect the rights of trans people in the province's correctional facilities.
Among other things, the new policy will allow trans people to self-identify their gender for placement and admission purposes, regardless of whether they have undergone sex reassignment surgery. This is a Canadian first.
In the face of either outdated or nonexistent guidelines, prison administrators in jurisdictions across Canada regularly make decisions about where to place trans people on the basis of the sex assigned to them at birth. More fine-grained considerations of legal sex or self-identification are usually deemed irrelevant in determining whether trans people should be placed in a men's facility or a women's facility.
Take, for example, the experiences of trans women in Canadian prisons. Unless they have undergone sex reassignment surgery, most trans women will be placed in men's facilities, even when they have taken steps to change the sex markers on government-issued identification such as a driver's license or a birth certificate. Jurisdictions such as Ontario no longer require individuals to undergo surgery in order to make this change, with self-identification becoming the central consideration.
Recognizing that placing a trans woman in a men's facility will almost certainly result in discrimination, harassment, and violence, corrections officials usually make the decision to place her into solitary confinement "for her own safety".
The results of using solitary confinement – even as a so-called "precautionary safety measure" – are devastating. Causing everything from psychosis to hallucinations, solitary confinement raises serious mental health concerns. The United Nations Special Rapporteur has even identified the prolonged use of solitary confinement as a form of torture.
On Jan. 19, the B.C. Civil Liberties Association and the John Howard Society of Canada launched a constitutional challenge to the use – or, perhaps more accurately, abuse – of solitary confinement in federal prisons. The lawsuit argues that the current practice violates the Canadian Charter of Rights and Freedoms.
When it comes to the treatment of trans people in Canadian prisons, a series of recent high-profile cases raise serious questions about whether federal and provincial governments are complying with their human rights obligations.
In February, 2014, Avery Edison, a trans woman from the United Kingdom, was detained by officials at Toronto's Pearson Airport. Despite carrying a passport that identified her as a woman, Ms. Edison was initially admitted to a men's facility. Officials then placed Ms. Edison in solitary confinement "for her own safety."
After widespread international criticism, corrections officials reversed the decision and transferred her to the adjacent women's facility.
Armed with Ontario's newly minted Toby's Act, along with rapidly changing societal attitudes about trans people, Ms. Edison has launched a human rights complaint against the Ontario government. She argues that her treatment constitutes discrimination on the basis of gender identity and gender expression.
As the new Ontario policy demonstrates, it would be a mistake to assume that Ms. Edison's experience is an isolated incident.
Recent empirical evidence demonstrates that trans people are regularly subjected to extraordinarily high rates of discrimination, harassment, and violence in correctional facilities across Canada. The deeply troubling practice of placing trans women in men's facilities – and then using solitary confinement "for their own safety" – is widespread.
As an immediate response to this human rights issue, other jurisdictions in Canada should follow Ontario's lead and allow trans people to self-identify their gender for placement and admission purposes, regardless of whether they have undergone sex reassignment surgery.
But it would be naive to think that introducing a new policy will ever bring about a human rights revolution in Canadian prisons.
As we consider reform, it is important to not lose sight of the underlying forces that often bring trans people into conflict with the criminal justice system in the first place. A 2010 study found that 43 per cent of trans-identified respondents in Canada had attempted suicide, 20 per cent had been targets of assaults, and 34 per cent had experienced verbal harassment or threats. These realities tend to produce high levels of criminalization.
Ultimately, the experiences of trans people further underscore the troubling human rights record associated with Canadian prisons. While reform is welcome, it may be time to more fundamentally rethink prison policy in Canada.