In 2016, the Ontario and BC Departments of Corrections instituted major policy changes with regards to how trans prisoners are housed, searched, and given access to medical care. However, Correctional Services of Canada (CSC), the federal system which houses the majority of sentenced prisoners in Canada, still lags far behind. The current commissioner’s directive requires trans prisoners to have Sexual Reassignment Surgery in order to be housed in a prison that corresponds to their gender identity. Meanwhile, the limited rights that are afforded to trans prisoners can be difficult to access.
In collaboration with several of our trans members currently incarcerated in CSC prisons, we have drafted a list of minimum requirements for the new policy. We encourage you to read them over, sign the petition, and join us in demanding action for trans prisoners.
- ALWAYS PRIORITIZE ALTERNATIVES TO INCARCERATION
Prisons cause lasting harm to all people, and they create particularly dangerous living conditions for trans people. Responses to criminalized and harmful behaviour should always recognize this fact. As a society, we must look to ways to redress harm and repair damage that reduce our reliance on cages and punishment as catch-all solutions to a range of social problems. Restorative and transformative justice approaches, as well as investment in housing, guaranteed incomes, and public services are some places to start.
- GIVE ALL TRANS PRISONERS THE RIGHT TO CHOOSE THEIR GENDERED HOUSING IN PRISON
With few exceptions, CSC policy places trans prisoners in men’s or women’s prisons based on their genitals. This policy has exposed many trans people to an elevated risk of harassment, physical abuse, and sexual violence. Those who wish to be transferred to another prison must undergo “Sexual Reassignment Surgery” (hyperlink to the policy here), causing serious difficulties for those who do not want, or who cannot undergo, surgery, and are thus refused a transfer.
While CSC has recently announced an interim, case-by-case placement policy, any final resolution must at a minimum take account of several key considerations. The final policy must ensure that no self-identified trans, two-spirit, genderqueer, or non-binary person be refused a transfer to a prison that would pose them a less immediate a threat. The final policy must follow informed consent procedures, whereby the prisoner is provided with details on detention conditions and programing available at the facilities that would be available to them. The final policy must ensure that relocation is not mandatory since ties to community in and out of prison are crucial to prisoners’ well-being. As long as they are incarcerated, trans prisoners must be allowed to identify the least dangerous option for themselves.
- END INVOLUNTARY SEGREGATION
Solitary confinement, administrative segregation, or any other form of involuntary isolation is a particularly harmful practice that is often interchangeably used as a punishment and as an unwanted protective measure. Trans prisoners, and other sexual and gender minorities, are often held in isolation against their will, supposedly for their own protection and/or to “preserve institutional order” within the prison.
As the College of Family Physicians of Canada has argued, segregation exacerbates the damaging effects of prison isolation on people’s mental, physical, and emotional health. Further, it often limits prisoners’ access to programs, in-prison services, and prison work programs. For trans prisoners, as well as all others, segregation must only be used as a protective measure at the express request of the prisoner. Prisoners must, at minimum, be able to maintain basic levels of normal social interaction and access to programming as part of the general population if they so choose.
- PROVIDE ACCESS TO CLOTHING AND PERSONAL ITEMS REGARDLESS OF GENDER
CSC currently maintains separate clothing and personal item allowances for men and women. Even though trans prisoners are technically permitted gender-affirming clothing and personal items, in practice, access to the catalogues to order them is not guaranteed. Additionally, many gender-affirming items are not available at all.
To ensure the logistical framework required to support this basic right, clothing allowances, canteen items, and permitted personal items sent from the outside should not be limited on the basis of gender. There is no reason CSC cannot ensure that all prisoners have access to the full range of gendered clothing it offers and allows. Furthermore, gender-affirming items, like wigs and prosthetics, should be made available.
- ENSURE IMMEDIATE AND CONTINUOUS ACCESS TO QUALIFIED HEALTH PROFESSIONALS
Current CSC policy promises prisoners a referral “at the earliest opportunity” to a health care professional qualified to diagnose gender dysphoria. In practice, however, this can take upwards of several months.
Because access to this essential medical care, and to trans-inclusive psychological support services is so crucial to trans people’s mental and physical well-being, any delay is an unacceptable wait that can cause significant mental and physical harm in the interim. Therefore, it is CSC’s responsibility to provide the people it incarcerates with immediate and continuous access to this essential medical and mental health care. This will further require increasing immediate access to qualified outside health professionals.
- ALLOW PRISONERS TO CHOOSE WHICH GUARDS PERFORM SEARCHES
The sample protocol offered in the CSC Commissioner’s Directive 566-7 for strip searches and pat-downs proposes that trans prisoners who have not had genital surgery are subjected to a “split search,” meaning that areas of their bodies identified to belong to a certain gender are searched by officers of that specific gender. This would mean that a trans woman who has not undergone genital surgery would have the top part of her body searched by a female officer and the lower part of her body searched by a male officer. This regressive sample protocol, and its repeated references to a trans woman as “he” betray CSC’s confused and archaic approach to trans people.
So long as strip searches and pat-downs are performed on trans, two-spirit, genderqueer, and non-binary prisoners, the people subjected to them must be able to choose the staff member performing the search. Trans prisoners must be able to choose which of their body parts are searched by which staff member, and to select the officers administering urinalysis testing.
- ARRANGE TO OFFER PRIVATE SHOWER AND BATHROOM ACCESS
Given the particular forms of vulnerability that can be involved in using bathroom and shower facilities, CSC must make arrangements for private use of shower and bathroom facilities, should the trans, two-spirit, genderqueer, and non-binary people it incarcerates request it.
- EASE ACCESS FOR OUTSIDE GROUPS AND VISITORS
The approval process to for outside visitors to CSC prisons who are not immediate family members is lengthy and difficult. This is a key problem for LGBT people, who may often be alienated from family, and dependent upon friends, lovers, and chosen family for support. Maintaining links between all incarcerated people and their communities of support is in everyone’s interests. CSC must allow for visits to occur on request, as is done in many other jurisdictions (e.g. New York State, Ontario provincial prisons).
- RAISE WAGES AND LIVING ALLOWANCES
Having a little money in prison is vital. It is used to purchase personal hygiene items such as soap, razors, and shampoo; to purchase food when unable to attend meals; and to buy stamps and stationery to communicate with the outside world.
Due to discrimination in the job and housing markets and strained family networks, many trans people (like most people vulnerable to incarceration) do not have large outside financial resources to draw from, and so rely heavily on prison jobs provided by CSC. Maximum pay for these jobs is $6.90/day before deductions, and those who do not participate receive a basic living allowance of $1 to $2.50 a day. These rates have stayed the same for the past 30 years, while costs of everyday items have skyrocketed 700% according to the Office of the Correctional Investigator. Many trans prisoners have to purchase their gender-affirming items, and save for years to do so. CSC must substantially raise pay rates and the daily allowances for all prisoners, end deductions, and provide all necessary items free of charge immediately.