By Jo Phoenix
February 6, 2023
Prior to 2017, Correctional Service Canada (CSC) placed offenders in facilities according to their anatomical sex. Exceptions were made for post-operative transgender women (i.e., anatomical males who had undergone sex reassignment treatment) who could be placed in a women’s prison. Yet, in 2017, CSC adopted an interim policy in which gender diverse offenders were given the choice to state where they would like to be incarcerated – in women’s prisons or in men’s prisons, in accordance with their gender identity and expression. This interim policy eventually formed the basis of Commissioner’s Directive 100: Gender Diverse Offenders (CD100), which was implemented in 2022.
It is unclear whether female offenders were consulted in the development of this policy, or what consideration was given to the tensions that might occur – and in fact have occurred – with housing potentially violent male prisoners who identify as women alongside vulnerable women. It appears as though CD100 was a unilateral decision to prioritize gender identity and expression over sex in the organization of prisons and, with that, to unilaterally redefine women’s prisons as places that incarcerate by gender identity and not sex.
There is no scholarly evidence about the impact on transgender offenders of giving them a choice of where they are accommodated or of accommodating transgender women who are anatomically male in women’s prisons, but we do have a mounting number of specific instances where women have been directly harmed as a result of such policies.
In England and Wales, and in Canada, there have been several instances where males who identify as women have been transferred into women’s prisons, have committed acts of sexual violence against women offenders or have acted in highly inappropriate ways, and who make the female prisoners feel afraid. Further, there is, necessarily, a loss of privacy and dignity as women prisoners are forced to share often quite intimate spaces with anatomical males who identify as women.
Evidence is emerging that in Canada, the CD100 policy change actively places women at risk, actively undermines their rights, and actively disadvantages minority women disproportionately. Sex segregation may be an historical legacy, but its continued practice is grounded in evidence about the differences between male and female offending, and in recognition that women prisoners have different needs and vulnerabilities to men and that the security risks they pose are different to those of men.
Poverty, ethnicity, and victimization are the main drivers of women’s criminality. For many women who end up in the criminal justice system, their offending takes place against a backdrop of poor pay and higher poverty (relative to men), disproportionately high rates of violent victimization, and hugely disproportionately higher rates of sexual assault. The decision to include anatomical males who identify as women in a population of female prisoners creates a new layer of vulnerability for an already vulnerable group.
As this paper concludes, there is no substantial evidence to support a prison placement policy that permits transgender prisoners to choose the prison in which they will serve their time. Women prisoners who are retraumatized by the presence of male bodied individuals – especially in rehabilitation programs that may well be discussing male violence – cannot simply leave and find another group to attend. Ensuring the well-being, safety, and security of prisoners is one of the primary tasks of CSC and one of the main responsibilities of all those employed in the prison system. Why is the known and potential risk of placing males who identify as women in women’s prisons acceptable?
There is little doubt that the rights of women offenders to single sex provision in prisons, to safety and well-being, and to privacy and dignity are in tension with transgender rights in prisons. To ask an already marginalized demographic to bear the burden of risk, the possibility of retraumatization, and the loss of dignity and privacy in order to validate the sense of identity and subjectivity of a relatively small number of individuals is, perhaps, the wrong balance of competing rights, especially given that there is so little evidence that such risks are worth bearing.