Offenders with Gender Considerations
Classification: Unclassified
Branch/Agency: CSC
Proposed Response:
- The Correctional Service of Canada is committed to ensuring a safe, inclusive and respectful environment for everyone, including staff, offenders, contractors, volunteers and visitors.
- The Correctional Service of Canada ensures that inmates who identify as transgender or gender diverse are given the same protections, dignity and treatment as others.
- The Correctional Service of Canada continues to assess the feedback received from consultations with stakeholders to incorporate lessons learned and best practices into relevant Correctional Service of Canada policy.
- In the context of its daily operations, the Correctional Service of Canada will continue to provide education and awareness to staff and offenders and work to ensure that the health, safety and dignity of everyone is respected at all times.
If Pressed:
Two matters regarding offenders with gender considerations have recently been referred to the Canadian Human Rights Tribunal. Given that the complaints are currently before the Tribunal, no further comments will be made.
Background:
In the years leading up to the passing of Bill C-16 in 2017, the Correctional Service of Canada (CSC) was the subject of complaints made under the Canadian Human Rights Act concerning transgender offenders. In response, CSC made exceptions to its policy on a case-by-case basis with respect to cell accommodation, strip searching, clothing, access to personal items, referral to correctional programming, and later, also institutional placement for “pre-operative” inmates.
Bill C-16
In June 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, came into force. The amendments included the addition of "gender identity or expression" as an "identifiable group."
CSC policy with respect to accommodation of transgender inmates is currently driven by an individual’s diagnosis of Gender Dysphoria, which is defined as “distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.” With respect to institutional placement, the policy on Gender Dysphoria (GL 800-5) states: “Pre-operative male to female offenders with Gender Dysphoria will be held in men's institutions and pre-operative female to male offenders with Gender Dysphoria will be held in women's institutions”.
Interim Policy Bulletin
In December 2017, the CSC promulgated the Interim Policy Bulletin on Gender Identity or Expression. This interim policy document outlines the high-level principles and changes to operational practice, and overrides any direction currently found in Commissioner's Directives (CD) or Guidelines.
As a result of legislative changes, CSC has adopted new operational practices to:
- allow offenders to be placed in an institution according to their gender identity, unless there are overriding health or safety concerns;
- allow purchases of authorized items from CSC catalogues for either men or women if there are no safety, health or security concerns according to the security level of the institution;
- allow offenders to choose whether strip and frisk searches and urinalysis testing are conducted by a male or a female employee; and
- allow offenders to determine their preferred name and pronoun.
Current Status
CSC continues to assess the feedback received from consultations with stakeholders regarding the individual Commissioner’s Directives. CSC also continues to incorporate lessons learned and best practices since the promulgation of the Interim Policy Bulletin on Gender Identity or Expression (December 2017). CSC has already begun drafting changes to some of the Commissioner’s Directives. Concurrently, CSC is planning for required updates to its Offender Management System in order to support the proposed policy changes at the operational level.
Next Steps
A new overarching Commissioner’s Directive (CD) entitled Management of Offenders with Gender Identity or Expression Considerations is currently being developed by the Policy Sector. It is expected that a draft of this CD will be sent out for external consultation in the Spring of 2020 and then finalized by summer 2020. This new CD will replace the Interim Policy Bulletin that was promulgated in December 2017.
CSC will develop guidelines and tools that will provide specific direction to CSC’s front line staff.
There are currently 24 CDs that will be impacted by the promulgation of the new CD on Gender Considerations. These will also be updated once the new CD and Guidelines are promulgated.
Contacts:
Prepared by: Jessica Martineau, Officer Parliamentary Relations, 613-943-1726
Approved by: Kirstan Gagnon, Assistant Commissioner, Communications & Engagement, 613-995-6867
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