by Eva Kurilova
The Government of Canada houses men in federal women’s prisons—men who are often doing time for violent and sexual offences—as long as those men request a transfer on the basis of their gender identity. The government would like us to believe that this is a matter of human rights. In reality, it is violating the human rights of the women inside, subjecting them to nothing less than cruel and unusual punishment.
Why is the Canadian government doing something so abhorrent? The answer is the notorious Bill C-16, which added “gender identity” and “gender expression” to the Canadian Human Rights Act in 2017.
Prior to this, several of Canada’s provinces and territories had already adopted similar language into their own human rights codes. In fact, Ontario was the first to do so in 2012, and it served as inspiration for the eventual changes to the Canadian Human Rights Act.
In 2015, both Ontario and British Columbia began transferring male prisoners into provincial women’s jails based on the language of these acts.
In January 2017, CBC reported that Correctional Service Canada (CSC), the federal government agency that runs the federal prison system, flip-flopped on its “transgender inmate policy” in order to “ensure it is consistent with the principles of Bill C-16.”
This about-face was prompted by Prime Minister Justin Trudeau himself, who had promised just days earlier at a town hall in Kingston, Ontario to house inmates according to their “gender identity.”
Grand Valley Institution for Women. Source: https://kitchener.ctvnews.ca/features/inside-gvi/life-in-prison-behind-the-barbed-wire-at-grand-valley-institution-1.3601895
Note that the previous CSC policy allowed the transfer of male prisoners into women’s prisons as long as they were “post-operative.” While one can argue the wisdom of such a policy, at the very least it kept the transfers few and far between. Now, however, all a male inmate has to do is declare a female “gender identity” and his transfer will be considered.
In all of this, what CSC and Trudeau seem to have forgotten is that sex is also a prohibited ground for discrimination in the Canadian Human Rights Act, which means that they are directly discriminating against the female sex by housing men with them.
What’s more, the Canadian Human Rights Act contains a section which makes it clear that “sex” is based in biology. Section 3(2) states that:
“Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.”
The act obviously recognizes that “sex” refers to the roles of human reproduction, and that it is therefore separate and distinct from the protected categories of “gender expression” and “gender identity” that follow.
Changing how CSC houses prisoners based on this amendment to the Canadian Human Rights Act makes about as much sense as housing prisoners based on race, religion, or ethnic origin just because race, religion, and ethnic origin are also protected characteristics.
Or consider the fact that no one agitated CSC to revisit its policies after sexual orientation was added to the Canadian Human Rights Act as a protected ground in 1996. Gay rights organizations weren’t arguing that gay men now needed and deserved protection among women or away from other men just because their sexual orientation was now protected.
This is because women’s prisons were not made for male prisoners, even those with a special “gender identity” or “gender expression.” However they express and however they identify, these men are no less male than other men, and female prisons were made specifically to accommodate the unique needs of female inmates only.
The Canadian Human Rights Act clearly states that the purpose of the act is to ensure that all individuals have their needs accommodated. By putting men in women’s prisons, the government has abdicated its responsibility to accommodate the sex-specific needs of its female prisoners.
CSC recognizes that women have unique needs not only when it comes to pregnancy and childbirth but also when it comes to the skills and services they need for successful reintegration in society. For example, male and female inmates are offered different correctional programs created to target their risk factors.
In an overview of its own history, the CSC website writes,
“Canada's first women's prison had opened in Kingston in 1934, answering a long-called for need to separate male and female inmates.”
In 1934, CSC understood the importance of separating males and females. Less than 100 years later, it is housing the two sexes together again.
In fact, it was just a little over three decades ago that CSC was further reiterating the different needs of female inmates:
The 1990 Task Force Report on Federally Sentenced Women, entitled Creating Choices, brought about a new correctional philosophy for women offenders—one focused on the principles of empowerment, meaningful and responsible choices, respect and dignity, supportive environments, and shared responsibility. This philosophy has driven a number of advances, including the closure of the Prison for Women, development of women-centred programs, construction of five new regional facilities and an Aboriginal healing lodge, and establishment [of] a community strategy to expand and strengthen residential and non-residential programs and services for women on release.
As former correctional officer April Kitzul discusses in her “Reflections on the impact of gender self-identification policies in the Canadian correctional system,” these regional facilities have different security concerns and considerations than you would find in a men’s facilities.
These prisons have less differentiation between medium and minimum security. In fact, they are quite similar in design, with cottage-style housing where women have more independence and less supervision, and Correctional Officers only doing rounds once every two hours. The only real difference is that medium security has a fence around it, whereas minimum security has no fence.
Men’s prisons have a far greater degree of differentiation between medium and minimum security, as their medium security prisons lack cottage-style housing, come with a common kitchen area, and have greater static security and higher frequency of supervision. In general, women’s prisons are lower security than men’s prisons because women are lower risk than men.
One of the concerns about transferring trans-identified males into women’s prisons is that their presence will undermine the intent of the original Commission’s recommendations in how we incarcerate women. For instance, it may become necessary to start increasing the static and dynamic security features in women’s prisons in order to manage the increased risk that trans-identified male prisoners present. If this starts happening, it will change the whole environment and will impact women’s mental well-being (as the prison starts to resemble a men’s prison once again).
Cottage-style housing at Grand Valley Institution for Women. Source: https://kitchener.ctvnews.ca/features/inside-gvi/life-in-prison-behind-the-barbed-wire-at-grand-valley-institution-1.3601895
In 1996, CSC also began piloting its Mother-Child Program, which has a stated purpose to “foster positive relationships between federally incarcerated mothers and their child, by keeping them together where appropriate, and providing a supportive environment that promotes stability and continuity for the mother-child relationship.”
The program was implemented in women’s prisons and not men’s prisons because the accommodations provided for women were based on their sex.
This statement may seem obvious, but we cannot take obvious truths for granted nowadays, especially not when CSC is housing convicted pedophiles like Matthew Harks and Adam Laboucan in women’s prisons with Mother-Child facilities.
Kitzul also explained that male inmates like Harks, Laboucan, and others are assaulting the female inmates, leaving them physically and emotionally traumatized. From sexual comments to sexual assault, female inmates are having their privacy, peace of mind, and very bodies violated by these men while CSC refuses to take any mitigating measures.
When Canada did still keep male and female prisoners separate in order to accommodate the unique needs of female prisoners, it was following common sense policy found around the world—or at least, policy that was common sense until less than a decade ago.
For example, The United Nations Standard Minimum Rules for the Treatment of Prisoners state:
“Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate.”
The standards also stipulate that:
“There shall be special accommodation for all necessary prenatal and postnatal care and treatment.”
This is a clear recognition that women’s prisons are made to house the sex that gives birth—aka women.
The Geneva Convention relative to the Treatment of Prisoners of War likewise has the following to say about accommodating female prisoners:
“Women shall be treated with all the regard due to their sex.”
“In any camps in which women prisoners of war, as well as men, are accommodated, separate dormitories shall be provided for them.”
“In any camps in which women prisoners of war are accommodated, separate conveniences shall be provided for them.”
The Canadian Human Rights Act recognizes that sex cannot be opted into, and Correctional Services Canada recognizes that women’s prisons were made for females. Therefore, by transferring male inmates into women’s prisons, the Canadian Government is knowingly and flagrantly violating the human rights of every single female inmate in its care. Not only is it going against UN standards, but it is not even affording female inmates accommodations based on sex that the Geneva Convention says must be afforded to prisoners of war.
Adding gender identity and expression to the human rights code, as ill-conceived as the idea was, did not have to override sex. In fact, it should not have. Sex is still included, and sex is recognized as pertaining to biological functions like pregnancy and childbirth. The government created a headache and a conundrum for itself with Bill C-16, and its solution was to simply toss women under the bus to cover for its own poorly thought-out choices.
In a sane Canada, every single federal or provincial female inmate would be able to take the government to its own human rights tribunal and win. This house of cards is being sustained by nothing by lies and misconceptions. Maybe, one day, we’ll get to see it all crumble.
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