Bill C-16's Impact on Women's Federal Prisons in Canada

 

By April Halley (reproduced with permission)

 

Unbeknownst to the majority of Canadians, the federal government has seen fit to erode sex segregation in women’s federal correctional facilities by allowing male offenders, who declare that they have a female gender identity, accommodation in women’s prisons. Conversely the Correctional Service of Canada (CSC) has not transferred any female offenders who identify as men into a men’s prison. This is likely due to the caveat in the CSC’s policy (Bulletin 584) which states that they have a duty to accommodate based on an offenders gender identity or expression, regardless of their anatomy or the gender marker on their identification documents, unless there are overriding health or safety concerns. Clearly, placing a female offender in a men’s prison would be a disaster waiting to happen. This begs the question as to why the federal government has decided that placing male offenders in women's institutions is any less of a safety concern.

The justification given by the CSC for housing offenders based on gender identity is Bill C-16’s (2016) amendment to the Canadian Human Rights Act which added gender identity and expression as prohibited grounds for discrimination. But precisely how this policy was implemented, and how it was framed by the CBC, was quite a convoluted affair.

To my surprise, I learned that previous to Bill C-16 the CSC had a policy allowing post-operative male transsexuals accommodation in a women’s facility. The CSC’s first formal transsexual policy was implemented in 1982 but it did not provide inmates with access to sexual reassignment surgery (SRS) while incarcerated. A game changing ruling came in 2001 when the Canadian Human Rights Tribunal determined that CSC’s blanket ban on SRS for inmates was discriminatory on the basis of both sex and disability. The CSC then began covering the cost of SRS for inmates who had lived in their transsexual identity, outside an incarceration setting, for a minimum of 12 months.

This is where things get hairy. On December 29th, 2016 the CBC ran an article titled “Gender identity vs. genitalia: Prison policy changes on the way for trans inmates”. The article states that the CSC would be “revamping its policies around transgender inmates amid growing calls to place offenders based on gender identity, not genitalia”. This was confirmed by Scott Bardsley, a rep for then Public Safety Minister Ralph Goodale, who told the CBC that the CSC would be amending its guidelines for accommodation and SRS in the new year.


But, on January 9th, 2017, after its consideration of the new legislation, the CSC released updated guidelines for transgender offenders which made changes to its SRS policy but not to its accommodation policy. The new policy made access to SRS more attainable, the 12 month lived identity criteria can now occur while in prison, but it maintained its long standing policy placing pre-operative males who identify as women in men’s institutions.

Then, 3 days after the CSC’s new policy was announced, Prime Minister Trudeau attended a town hall in Kingston, Ontario during which he was asked whether the transgender prison accommodation policy would be changing in light of Bill C-16. The questioner was emphatic that the policy ought to change to allow offenders accommodation on the basis of gender identity. Trudeau responded by saying that while he was aware of the pressures facing LGBT people this was not “one he had ever thought of”. Nevertheless, he committed to supporting this change and said that he hoped we were moving forward on these issues even without his “leaning in on it”.

The next day the CBC reported that, in light of the previous day’s promise by the Prime Minister,  the CSC had flip flopped on its transgender accommodation policy. The CSC’s  spokesman Jean-Paul Surette confirmed that transgendered inmates would now be accommodated based on their gender identity rather than their genitalia.


With rare exception, the media has been eerily silent on the fallout from this unquestionably catastrophic policy. The tenor of reports on this issue, and transgender policies in general, tend to be unflaggingly celebratory. Shortly after Bill C-16’s ratification, Fallon Aubee was reported by the CBC as the first offender, in the federal correctional system, approved for accommodation on the basis of gender identity. The CBC’s report on Aubee’s pending transfer described him as a “trailblazer” and made no mention of the potential negative effects for the female offenders who would now be locked in with a man serving a life sentence for a gang related murder.

After voting to adopt Bill C-16 Senator Linda Frum wrote an op-ed for the Toronto Sun in which she laid out her fear that the bill would “take away rights from women and girls”. Frum stated that by adding protections for “gender expression” the bill had redefined women from a biological reality to a fashion choice. Senator Frum also noted that the concepts of gender identity and expression protected by the bill were "vague” and without “precise legal definitions”. Incredibly, despite these logical concerns Senator Frum supported the bill due to its “symbolic importance”.

I would argue that Senator Frum is not alone in having supported gender identity legislation without any sound basis for doing so. During the debate that surrounded this bill many Canadians, including myself, failed to clock it for the Trojan horse it has turned out to be. An Angus Reid poll from 2016 maintained that 84% of Canadians supported adding gender identity as a prohibited ground for discrimination under the Canadian Human Rights Act. Importantly, that poll used denial of housing or employment due to gender identity as examples of the discrimination that would be caught by this bill. Had they asked whether women’s prisons, shelters, and sports teams ought to be compelled to accommodate males it is fair to assume that the result would have been quite different.

A national poll commissioned by the American women’s advocacy group Women’s Liberation Front found that the majority of respondents disapproved of males who identify as females being admitted to women-only homeless or domestic violence shelters. While only 7% of respondents approved of male sex offenders or domestic abusers being permitted to serve their sentences in a women’s prison.

An ATIP I placed in 2018 revealed that 7 out of the 8 men who transferred from a men’s to a women’s federal correctional facility in Canada between June 1, 2017 and December 3, 2018 had been convicted of violent offenses. Two offenders had first-degree murder listed as their main offence. Three had second-degree murder. Two had “Schedule I” offences—a category that includes sexual offences and other violent crimes, excluding first and second-degree murder. If a history of violent behaviour, or sex offending, does not preclude a male offender from being granted accommodation in a women’s prison it is evident that, to put it mildly, the criteria for assessing these requests is lacking.

Unsurprisingly, this policy has led to the harassment and assault of female inmates. Last spring a female inmate filed sexual assault charges against a male inmate named Steven Mehlenbacher. Mehlenbacher had been housed with her at the Grand Valley Institution for Women in Kitchener, Ontario.

Defenders of this policy cite examples of violent female offenders. The existence of violent female offenders is not a sufficient argument to support the transformation of women’s prisons into mixed sex prisons. Men and women have different patterns of behaviour and this is reflected in the need for higher security in men’s institutions. Women’s prisons were not created to house violent male offenders such as convicted murderer John Boulachanis. Boulachanis has made audacious escape attempts while incarcerated in a men’s facility. At one point, while being transported, he was able to use a metal saw to free himself from his restraints and jump out of a moving vehicle before being apprehended. In a separate attempt he was found to have cut through the bars on his cell’s window. Boulachanis is one of only a small number of offenders who require a high-risk security service when being escorted out of prison. 

Boulachanis took the CSC to court for their refusal to transfer him into a women’s prison, the CSC argued  that he posed a serious risk of escaping and would be a threat to public safety if he got out.  The CSC also highlighted that Boulachanis requires a high degree of surveillance and control while inside prison. The level of surveillance is far greater in men’s correctional institutions. Some examples include the fact that guards in women’s federal prisons typically do not carry guns, the surrounding fences are significantly shorter, and armed guards do not police the perimeter. In 2020 a Quebec Superior Court Judge denied Boulachanis’s request to be transferred and concluded that CSC had done enough to accommodate his gender identity in a men’s facility.

Boulachanis has recently had SRS and has been transferred to the Joliette Institution for Women. On January 21st, a few days after his transfer, the Union of Correctional Officers of Canada (UCCO) organized a demonstration near Joliette in an attempt to voice their concerns over the placement of such a high risk offender into a women’s institution that is not equipped to manage him. UCCO is requesting an increase in security in the prison, including the arming of some guards.


In 1990 the federal government released a report on the condition of women in prison. It acknowledged that correctional management strategies had been developed for male offenders and then applied to both male and female offenders and that this was to the detriment of women. This report led to the creation of new prisons for women that reflected the low security risk presented by most female offenders. Also, 1996 saw the creation of an Institutional Mother-Child Program which allows young children to live with their mothers in designated units. According to the CSC this program is designed  “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”.

Should the untenable situation that has been created by allowing male offenders accommodation on the basis of their gender identity be permitted to continue it is guaranteed to radically transform the nature of women’s prisons. As more male offenders learn of the ease with which they can avail of this escape hatch, and seeing as female offenders constitute a mere 6% of  federally incarcerated inmates in Canada, it is conceivable that women could easily become a minority in women’s prisons.


For clarity, I will reiterate that having SRS is no longer a requirement for a male to transfer into a women’s prison but it appears that a male offender who has had SRS is certain to be granted accommodation in a women’s prison regardless of their offense history or security risk. It is important to note that there is no evidence which suggests that men who identify as women pose any less of a risk to women than other men.

There seems to be an unspoken assumption that men who have had SRS no longer pose a risk to women. This is not supported by research. A long term Swedish study on people who had undergone SRS showed that men who have SRS retain male patterns of criminality.

Serial pedophile Matthew Harks has undergone SRS but this has not mitigated his predatory behaviour.  A 2006 psychiatric assessment of  Harks maintained that he has an “all-encompassing preoccupation with sexually abusing underage girls”. The Vancouver Sun reported  that Harks had assaulted two female inmates who were “childlike in appearance.”

In 2019 an Indigenous woman filed a grievance against the CSC in which she maintained that she had been subjected to repeated harassment from Harks while incarcerated at the Grand Valley Institution for Women (GVI) in Ontario. The CSC was not obligated to pursue this grievance because the former inmate who filed it did so after she was no longer under the control of  the CSC. The power dynamic that is inherent to the criminal justice system is contributing to the suppression of complaints from female inmates regarding the transgender accommodation policy because they fear that if they lodge a complaint while incarcerated they will experience retribution by the CSC.

Men are undeniably physically stronger than women and the prevalence of male predation on women is well understood. In light of this, and the fact that many incarcerated women have a history of being abused by men, housing male offenders with female offenders is unconscionable. Canada’s erosion of sex segregation in women’s prisons is ethically dissonant seeing as we are a signatory of the Geneva Convention which holds that female prisoners of war must have separate quarters from men.

Recently a protest against this policy, organized by the women’s advocacy groups We The Females and caWsbar, was held outside GVI. A former inmate of GVI named Heather Mason gave a speech in which she highlighted the lopsided nature of this policy, men are transferring into women’s prisons and not vice versa. Mason stated that “we have downloaded 100% of the risk of male violence in men’s prisons onto women”. She also claimed that, the aforementioned offender facing a sexual assault charge, Steven Mehlenbacher, has reverted to going by the name Steve. While identifying as a female at GVI Mehlenbacher had gone by the name Sam.

Mason began speaking out on this issue after attending a 2019 conference held by the Canadian Association of Elizabeth Fry Societies (CAEFS) in which they announced, despite the objections of some formerly incarcerated women in attendance, their intention to formally update their policy in order to be inclusive of males who identify as women. Elizabeth Fry Societies (EFS) have a long standing reputation for advocating on behalf of women caught up in the criminal justice system. There are 24 local EFS that fall under CAEFS that must therefore support their transgender accommodation policy. This means that should a male offender who identifies as a female be penalized , such as with placement in segregation, for harassing a female inmate he may appeal to an Elizabeth Fry Society for help.

The CSC’s policy also places female correctional officers at an increased risk of assault. Britain has a transgender offender accommodation policy similar to Canada’s. Rory Stewart, a former MP and Minister of State for Prisons in Britain, has said that during his tenure in government there were “situations of male prisoners self-identifying as females then raping staff in prison”.

All Canadians have the constitutional right to freedom from sex based discrimination. It is impossible to guarantee women the right to the safety of single sex spaces while also supporting the right of males to enter such spaces at will. It is clear that gender identity legislation is in irresolvable conflict with the Charter of Rights and Freedoms.

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