Lawsuit Challenges Policy of Housing Trans-Identifying Men in Women’s Prisons

Patches are seen on the arm and shoulder of a corrections officer during a media tour in Abbotsford, B.C., on Oct. 26, 2017. The Canadian Press/Darryl Dyck

A national women’s group has launched a lawsuit against the federal government in a bid to end the practice of housing trans-identifying male prisoners in federal prisons with female inmates.

The Justice Centre for Constitutional Freedoms (JCCF) submitted a lawsuit April 7 on behalf of Canadian Women’s Sex-Based Rights (CAWSBAR) that contests the Correctional Service of Canada commissioner’s Directive 100: Gender diverse offenders policy.

The policy was enacted by the Liberal government in May 2022 to permit male offenders who identify as female to be incarcerated in one of six federal women’s prisons across Canada.  As a result, inmates who are still anatomically male can seek placement in women’s correctional facilities. The requests are evaluated on a case-by-case basis.

While Directive 100 was not put in place until 2022, the implementation of Bill C-16 in June 2017 amended the Canadian Human Rights Act and the Criminal Code to recognize gender identity and expression as protected categories.

That change enabled “gender diverse” inmates to seek placement in correctional facilities that align with their gender identity. Before that, males who had yet to complete sex reassignment surgery could not be transferred to a women’s facility.

CAWSBAR argues that Corrections Canada’s policy violates several sections of the Charter of Rights and Freedoms. The group also says it endangers women and constitutes a form of “cruel and unusual punishment.”

CAWSBAR board member and former inmate Heather Mason said her group decided to sue the government to protect vulnerable women in prison.

“We initiated this action to highlight the federal government’s failure to protect women and to raise public awareness about the cruel and unusual punishment that incarcerated women endure as a result of this transfer policy,” said Mason, a former inmate at the Grand Valley Institution for Women in Kitchener, Ont., in a JCCF release.

Corrections Canada declined to comment about the lawsuit saying the matter is before the courts, but said that all offenders, including those with diverse gender identities, are placed in the best environment for their security requirements.

“It is also important to remember that the majority of institutional incidents, regardless of gender diverse offender sub-population, were non-violent in nature,” a Corrections Canada spokesperson said in an emailed statement. “It also shows that concerns raised about bullying and violence/sexual violence in relation to these incidents were unfounded.”

Statement of Claim

The organization points to various occurrences of physical and mental harm endured by female inmates who have been forcibly housed with violent trans-identifying males. Reports indicate incidents of sexual assault, harassment, beatings, stalking, and grooming.

“Female Inmates have been sexually assaulted by Trans-identifying Male Inmates both with and without male genitalia,” the statement of claim says. “In addition to the inherent trauma and harm associated with such incidents, Female Inmates are also exposed to increased risks of pregnancy and sexually transmitted infections.”

CAWSBAR reports that many incarcerated women have prior experiences of abuse and trauma, and the current policy intensifies their distress, potentially resulting in PTSD, depression, anxiety, and suicidal tendencies.

Women not directly targeted also suffer from “a loss of privacy and dignity knowing that a Biological Male can see them in a state of undress,” the group said.

The statement of claim lists the ways in which biological female and male offenders differ. It notes that female inmates are much less likely than males to have been convicted of serious violent crimes, to be repeat violent offenders, or to be convicted of a sexual offence.

Female inmates are also typically smaller and physically weaker than male inmates and represent less of a physical danger to those around them, the claim says.

Trans-identifying male inmates also display different preferences and characteristics than women inmates statistically, the group says, noting male inmates identifying as female are typically sexually attracted to women, or to both genders. The legal action also cites findings from the Macdonald-Laurier Institute, indicating that more than 90 percent of male prisoners who identify as transgender have been convicted of violent crimes.

Nearly 50 percent of the individuals were imprisoned for homicide-related offences, while one-third were incarcerated for sexual crimes, rates that are considerably higher than those in the general population of female inmates, the study said.

CAWSBAR argues that the existing policy suppresses the voices of female inmates, who may be apprehensive that their complaints could be labelled as “transphobic,” potentially jeopardizing their chances for parole.

CAWSBAR is urging the federal court to overturn Directive 100, arguing that it jeopardizes women’s safety and is at odds with the rights provided under the Charter.

Political Party Stances

With Canada in the midst of an election campaign, the Directive 100 policy could potentially be revisited under a new government.

Liberal Leader Mark Carney hasn’t commented publicly about the issue of biological men identifying as women seeking placement in female prisons. NDP Leader Jagmeet Singh also hasn’t spoken specifically about the issue of trans prisoners but said in a 2021 social media post that his party is committed to trans rights and “creating a fairer justice system.”

Conservative Leader Pierre Poilievre has previously criticized the existing policy and has pledged to reform it if a Conservative government is elected.

He took to social media last December after it was reported convicted murderer Mohamad Al Ballouz was requesting to serve his life sentence in a women’s prison because he now identifies as a woman. He was convicted of the 2022 murders of his wife and two young sons.

“Surreal: A man who killed his wife and two kids now claims he is a woman to go to a female prison,” Poilievre wrote in a Dec. 22 post. “I can’t believe I have to say this: but when I’m PM, there will be no male prisoners in female jails. Period.”