The Trudeau government has recently promised to house federal inmates according to gender identity (Harris, 2017), breaking the longstanding tradition of housing offenders based on sex. This movement not-so-coincidentally aligns with impending legislation, Bill C-16, which seeks to add gender identity and gender expression as characteristics protected from discrimination in the Human Rights Act and Criminal Code. While the federal government’s sudden shift on the issue of housing trans prisoners is undoubtedly an attempt to circumvent claims of discrimination, in practice the change will likely do very little to minimize daily experiences of discrimination for trans individuals within the institution.
While Ontario and BC had already developed policy that permits provincially sentenced inmates to be housed according to gender identity (Kirkup, 2016), inmates held in federal institutions have been inappropriately housed as a result of Correctional Service Canada’s (CSC) original policy that assigns inmates to facilities according to sex – or more specifically, genitalia.
New housing policy was developed in order to alleviate the risks for an already vulnerable population. Dividing inmates on the basis of sex fosters an environment that permits sexual harassment and violence (Sylvia Rivera Law Project, 2007; Brown, 2014). Reporting on the results of the National Transgender Discrimination Survey conducted in the US, Reisner, Bailey & Sevelius (2014) report that an overwhelming 47% of trans-feminine persons who had been previously incarcerated experienced some form of victimization by inmates or staff. Trans women relay experiences of violent frisks and illegal strip-searches in front of male inmates (Witherspoon, 2011) and some fear showering because of the attention drawn to them (Sylvia Rivera Law Project, 2007). Complaints have arisen as a result of staff not only failing to protect trans inmates from violence, but condoning such violence (Arkles, 2009). In fact, abuse by male correctional staff is cited as the primary source of violence for trans inmates (Girshick, 2011).
As a result of being targeted within the facility, solitary confinement is frequently used for housing trans inmates in the name of ‘protection’, despite the wishes of the individual (Robinson, 2011; Arkles, 2009). While trans individuals are isolated because they are at risk of widespread transphobic victimization, solitary confinement punishes the individual for gender nonconformity (Tarzwell, 2006), and in practice, solitary confinement fails to protect trans inmates because their risk of being physically and sexually victimized by correctional staff is exacerbated (Sylvia Rivera Law Project, 2007; Pemberton, 2013; Brown, 2014; Arkles, 2009; Minter & Daley, 2003).
Despite the fact that the United Nations Special Rapporteur conceptualizes solitary confinement in the excess of 15 days as torture (UN News Centre, 2011), trans inmates are often kept far beyond this limit (Sylvia Rivera Law Project, 2007; Minter & Daley, 2003). As a result of prolonged isolation, inmates often times exhibit extreme mental health concerns, engage in self-injurious behaviour and are at risk of suicide (Kelsall, 2014). While two-thirds of trans inmates are reportedly living with a mental health issue (Sexton, Jennes & Sumner, 2010), solitary confinement can further fuel pre-existing mental health concerns prevalent in the community.
Case in point is the highly publicized case of Chelsea Manning – a US soldier who was sentenced to 35 years in a maximum security facility following a military crime in which she leaked classified information (Beech & Skinner, 2016). While incarcerated, Manning desperately sought gender affirming surgery and to be sent to a women’s institution. When Manning was given a week of solitary confinement as punishment for a suicide attempt in July 2016, she attempted suicide yet again in isolation (Pilkington, Smith, & Gambino, 2017; Grinberg, 2016). Of course, especially in light of her lengthy sentence, she needed to be able to live as her authentic self and be housed in the facility appropriate to her gender.
Finally, officials granted Manning’s request for surgery – she was going to be the first ever person in the US to receive a gender affirming surgery while incarcerated (Grinberg, 2016). However, in President Obama’s final days in office he commuted Manning’s sentence and she is to be released in May, 2017 (Pilkington, Smith, & Gambino, 2017). Luckily, the Obama administration took action to free Manning from her torturous situation, as trans rights and protections continue to be slashed in the US – so far as to prohibit trans school children from using the washroom appropriate to their gender (Somashekhar, Brown, & Balingit, 2017). Manning brought much public attention to not only her particular case, but the rights of trans inmates at large.
While the Canadian government seeks to uphold the rights of transgender individuals to be housed in accordance with their gender identity, housing placement is decided on a case-by-case basis with consideration for one’s gender identity alongside the issue of their safety. The lack of standard policy generates overwhelming discretion in the matter, causing concern that only those who adhere to strict (cisgender) notions of expressing femininity and masculinity will be housed aapropriately. That is, trans men and women who do not ‘pass’ as cisgender and non-binary and other gender variant individuals may remain at risk of being housed according to sex.
Not only is there imperfections in the new housing policy, but it does little to end the pervasive violence within the institution. These changes should be viewed as a mere stepping stone in the broader battle for trans rights in Canada. Permitting trans inmates to be housed in federal institutions according to their gender identity, rather than sex, is indeed a breakthrough that will undoubtedly prevent much of the harassment and victimization that trans people, particularly trans women, experience from other inmates, but will do little to end the abuse at the hands of staff. Further, one can only speculate whether these vulnerabilities and inhumane conditions that trans women have historically been subject to in (cis) men’s institutions will be replicated when trans men and other gender nonconforming individuals are placed among cis male inmates.
The institution must be prepared for the same harms to persevere – transphobic victimization at the hands of inmates and staff and the repeated and prolonged use of solitary confinement as a result. At the very least, the federal government is acknowledging the existence of transgender identity and is attempting to find a solution to longstanding systemic discrimination in the correctional system. While the federal government will ultimately protect itself from formal complaints of discrimination, trans individuals will continue to be subject to daily experiences of discrimination and violence within the institution’s walls and the private nature of the correctional institution ensures that their voices will remain unheard.
Bill C-16, An Act to Amend the Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2016.
Beech, E & Skinner, E. (Sept 14, 2016). Chelsea Manning to receive gender transition surgery: lawyers. Reuters.
Brown, G. (2014). Qualitative analysis of transgender inmates’ correspondence: Implications for departments of correction. Journal of Correctional Health Care, 20(4), 334-342.
Arkles, G. (2009). Safety and solidarity across gender lines: Rethinking segregation of transgender people in detention. Temple Political and Civil Rights Law Review, 18(2).
Girshick, L. (2011). Out of Compliance: Masculine-identified people in women’s prisons. Captive Genders: Trans embodiment and the prison industrial complex (189-208). Oakland, CA: KA Press.
Grinberg, E. (Sept 14, 2016). Chelsea Manning will undergo gender transition surgery, lawyer says. CNN.
Harris, K. (Jan 12, 2017). Trudeau promises to house trans inmates based on gender identity. CBC News.
Kelsall, D. (2014). Cruel and Usual Punishment: Solitary Confinement in Canadian Prisons. Canadian Medical Association Journal, 186(18), 1345.
Kirkup, K. (Jan 26, 2016). How Ontario's prisons pioneered sensitivity to transgender inmates. TVO.
Minter, S. & Daley, C. (2003). Trans realities: A legal needs assessment of san francisco’s transgender communities. National Center for Lesbian Rights and Transgender Law Center.
Pemberton, Sarah. (2013). Enforcing gender: The constitution of sex and gender in prison regimes.(Report).Signs, 39(1), 151.
Pilkington, E., Smith, D. & Gambino, L. (Jan 18, 2017). Chelsea Manning's prison sentence commuted by Barack Obama. The Guardian.
Robinson, R. (2011). Masculinity as Prison: Sexual Identity, Race, and Incarceration. California Law Review, 99(5), 1309
Sexton, L., Jenness, V., & Sumner, J. M. (2010). Where the margins meet: A demographic assessment of transgender inmates in Men’s prisons. Justice Quarterly, 27(6), 835-866.
Somashekhar, S., Brown, E. & Balingit, M. (Feb 22, 2017). Trump administration rolls back protections for transgender students. The Washington Post.
Tarzwell, S. (2006). The gender lines are marked with razor wire: Addressing state prison policies and practices for the management of transgender prisoners. Columbia Human Rights Law Review, 38(), 167-170.
UN News Centre. (18 October 2011). Solitary confinement should be banned in most cases, UN expert says.
Witherspoon, P. R. My story. (2011). Captive Genders: Trans embodiment and the prison industrial complex (209-214). Oakland, CA: KA Press.