Law Times

Law Times • JuLy 24, 2017 Page 5 www.lawtimesnews.com CBA section proposes new transgender inmates policies BY DALE SMITH For Law Times T he Canadian Bar As- sociation's criminal justice section says Correctional Service Canada should change its poli- cies when it comes to transgen- der inmates. Defence lawyers say there's been some good progress after the federal government passed Bill C-16, which affirms the rights of transgender Canadians in law, but the legal system as a whole has farther to go. The CBA's sexual orientation and gender identity community forum and the criminal justice section recently recommended a number of changes to Cor- rectional Service Canada in a letter that was submitted as part of consultations on CSC's trans- gender inmates policy. Proposed policy changes in- clude that transgender inmates be given private toilet and show- er facilities and the gender of a transgender inmate be consid- ered when determining double- bunking cell placements. The CBA section also recom- mended placing transgender in- mates in men's or women's insti- tutions according to their pref- erence, subject to "over-riding health and/or safety concerns which cannot be resolved." "It's been an emergency for years that the government has just failed to address," says An- gela Chaisson, partner with Paradigm Law Group LLP in Toronto and a defence lawyer who has represented a number of transgender people including transgender inmates. Chaisson says that the pro- posed policy shows some progress, but it "doesn't go far enough." N. Nicole Nussbaum, a law- yer with Legal Aid Ontario and past chairwoman of the CBA Sexual Orientation and Gender Identity Conference, says trans- gender people are at a higher risk of sexual assault than other prisoners. They are also at a higher risk of being placed into segregation or solitary confinement for their own protection because they are in a wrong-gendered facility, according to a 2011 Interim Re- port of the Special Rapporteur of the Human Rights Council on torture and other cruel, in- human or degrading treatment or punishment. "A jail sentence is not meant to be a sentence to sexual assault or solitary confinement," says Nussbaum. "That's not how our justice should operate." Nussbaum says that courts need to take into account some of the circumstances of trans- gender people, in particular transgender women of colour and indigenous two-spirit and transgender people, when it comes to why they come into contact with the system. Some have been in a situation where they are responding to transphobic violence, she says, or others are trying to support themselves for surgeries that have not always been paid for by provinces. Other issues abound as well. The CBA's Criminal Justice Section also calls on CSC to provide training to both staff and inmates on transgender in- mates policies and to track the number of transgender inmates in the correctional system. Chaisson says the case-by- case nature of assessments done by CSC of transgender inmates is inherently a problem. She also says there's an issue with the need for transgender people to request accommoda- tion for their status. Instead, she says, it should be automatic that inmates be placed with the gender with which they identify, as opposed to what they were assigned at birth. "Being trans is not some- thing to be accommodated," says Chaisson. "This language of accommo- dation — as though they're do- ing trans inmates a favour — is a problem in and of itself." Chaisson also says issues with incarcerating transgender people start at the time of ar- rest, not only with inmates who are in CSC facilities on a longer- term basis. "When people are arrested, it's a very fast process — it's not one that a lot of people expect and it tends to happen very quickly," says Chaisson. She adds that people arrested are often sorted by gender dur- ing strip searches. Chaisson says she has had transgender clients who pres- ent as very male, with beards and heavy builds, and who have government identification that indicates they are male, and then are placed with female de- tainees. "I have a lot of questions about how, during that fast process, the police, who are the ones making that determina- tion [about gender], are going to assess on a case-by-case basis how to place people who are up for bail," she says. Chaisson adds that CSC has been faced with lawsuits from transgender people who were held in a facility that did not accommodate their gender for years. CSC spokeswoman Lori Halfper says it is committed to ensuring that inmates who identify as transgender are giv- en the same protection, dignity and treatment as others. "We are reviewing our poli- cies to ensure that they are con- sistent with the principles out- lined in Bill C-16," says Halfper. "As part of that review, we are undertaking stakeholder consultation, including with inmates and with LGBTQ2+ advocates, to identify possible changes to the policy." Halfper says the CBA letter is being reviewed and taken into consideration. "We are currently assessing — on a case-by-case basis — individual inmates' placement and accommodation requests to ensure the most appropriate measures are taken to respect the dignity, rights and security of all inmates under our cus- tody." Ido Katri, an Israeli lawyer who is doing a fellowship at the University of Toronto's Faculty of Law, says incarceration of trans inmates should be a last resort. Katri is studying issues related to transgender legal struggles. "Considering the fact that pris- ons are sex-segregated spaces, perhaps the most sex-segregated space in our society where the socially accepted norms of gen- der are enforced in their most violent and strict way, I think that any policy regarding the incarceration of gender-diverse peoples should look first at alter- natives to incarceration." Katri says that because of the extreme sex segregation of prisons, gender-diverse people are punished more severely and in worse conditions because of who they are, which is partly why transgender women in par- ticular wind up in administra- tive segregation. "This reality justifies if not necessitates placing alternatives to incarceration as the starting point of any policy development that is meant to recognize and protect gender diversity," says Katri. "As prison segregation is based on correlation between birth-assigned sex and gender, gender-diverse peoples, whose felt or express gender does not correlate with their birth assign- ment, are inherently situated in a vulnerable position within prisons, continuously exposed to harm and discrimination," says Katri. LT NEWS Angela Chaisson says it should be auto- matic that transgender inmates are placed in prisons with the gender with which they identify, as opposed to with the gender they were assigned at birth. © 2017 Thomson Reuters Canada Limited 00244SZ-A87345-CE Start stronger. Finish faster. SECONDARY SOURCES ON WESTLAWNEXT® CANADA Confidently take on complicated matters and leverage the topical expertise from world-class authors, including practitioners, law professors, and judges, who know and shape the law to quickly get the answers you need. Explore what's new to Secondary Sources on WestlawNext Canada. westlawnextcanada.com/secondary-sources . . . I think that any policy regarding the incarceration of gender-diverse peoples should look first at alternatives to incarceration. Ido Katri

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