Canada's Trans Prisoners Need More Than a Policy Change

Ontario's new policy calls for trans inmates to be placed according to the gender they identify as, but it falls short of what's needed.

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Jan 27 2015, 8:42pm

Photo via Flickr user martin

On January 26 the Ontario government announced a revision of policies regarding how trans inmates will be dealt with in the prison system. It is being touted as the the most comprehensive and progressive policy across North America. Of course, the treatment of prisoners in general and especially trans prisoners means this isn't a particularly glowing statement.

The new policy will see changes such as what name and pronouns trans people are addressed by, with which gender they are incarcerated with, who searches trans people and how solitary confinement is used in 'protecting' trans people.

Under the former practice trans inmates were "housed" based on "primary sexual characteristics." This means a trans woman like me would be placed in a men's facility because I have a penis, even though I am legally female according to my government ID. The new policy will see that trans inmates are "housed" according to self-identified gender. Placing trans women with men often leads to assault, sexual abuse and rape. In a study done in California 59 percent of trans women inmates reported being sexually assaulted by other inmates or guards, compared to 4.4 percent of the total inmate population. Looking at those numbers, it can be argued that placing trans women in men's prisons is pretty much sentencing them to assault and rape.

Furthermore, trans women incarcerated in men's prisons are often placed in solitary confinement for "safety and protection." Essentially, prison staff know trans women will be targeted for abuse in men's prisons and their solution is often to isolate them from the men they are incarcerated with, thus punishing trans women further (solitary confinement has a long list of negative consequences for inmates, and the UN says it "can amount to torture"). Ontario's revised policy on solitary regarding trans people simply states that "Wherever possible (and subject to inmate preference) inmates will be integrated into the general population." The language in this revision is vague and likely means a transphobic guard could still place trans people in solitary.

Strip searches and frisks of trans people will also be changed. Under the new policy a trans woman has the option of being searched by a woman. Prior, a trans woman could be strip-searched by a man.

Other policy changes include referring to trans inmates by their proper name and pronouns, which should be a given and failure to that is bullying and harassment.

Boyd Kodak is a trans man who was arrested in 2012 (charges were dropped four months later). Boyd was arrested and brought to the police station being told he had to fill out some papers and would be home within a few hours. At the station, the officers became aware of Kodak's trans status. Kodak, who is legally male and post-operative, was then strip-searched, made to wear women's underwear and clothing, and placed in with women. He was even forced to attend public court appearances in women's prison clothing.

Boyd described this experience and how affected him as follows:

"I have endured a great deal of pain and suffering, including a significant financial loss. I am close to losing the house I spent my life working for. I still require therapy because of the inhumane way I was treated, that I cannot afford. I have been diagnosed with Post Traumatic Stress Disorder (flashbacks, panic attacks,...), severe depression, extreme anxiety, and situational disorder. I also had physical injury, and developed a bleeding ulcer requiring transfusion... My life will never be the same... Is transphobia so inherent, so ingrained in [our government officials, employees and ministers] way of thinking, that they really think that's all a life like mine is worth?"

Boyd has since filed a complaint with The Ontario Human Rights Commission which has yet to be settled. In meetings with MPP Cheri DiNovo and Minister of Community Safety and Correctional Services Yasir Naqvi, it was agreed that Boyd had been sexually assaulted while in custody.

"All [of us] agreed that the handling of my prosthesis as they did would equate to sexual abuse."

Susan Gapka, who is part of the Trans Lobby group that advocated for this week's reforms, told me that "this policy ... is groundbreaking as the first of its kind in Canada, perhaps North America. This collaboration shines a light into the dark corners behind the prison walls we are told are there to protect society, yet in practice, hide the negative and abusive treatment some of the most vulnerable people, like trans people, experience."

Gapka also said that 65 percent of people held in Ontario's prisons are on remand, or pre-trial detention, and have not been convicted. Trans women are often held in prisons with men, many of them enduring horrible abuse, without even being convicted of any crime.

Revised policies on how trans women like me are treated in the prison system are an improvement, but failing to address why trans people are being arrested and incarcerated is still a dark cloud looming over all of this.

When I came out as trans and started to "transition" in 2012, I was working as a freelance wedding photographer. My income dropped by 90 percent my first year out as a trans woman. Having trouble finding work as I went through "transition," I dabbled in survival sex work in order to pay rent, eat, and afford my medications. I am pro-sex work and feel no shame about having done it, but I want to be clear: it was transphobia and discrimination that cost me my business and made it difficult to find other work. Systemic transphobic discrimination placed me in a situation where I risked being arrested and detained in a men's prison.

Canada lacks proper statistics on trans people, but as a trans woman and as part of trans communities, I've seen many trans women arrested and incarcerated because of sex work and petty crimes like drug dealing. As with my case, these same instances are often coping mechanisms either for the loss of employment or the stress and trauma many trans people endure because of their identities. It's worth noting that a 2011 study by Trans PULSE found that 20 percent of trans people in Ontario were unemployed. It is of utmost importance that we look at how discrimination impacts the lives of trans people and how that often leads to engaging in "criminal" activities, such as sex work, to survive.

In 2012 Ontario passed Toby's Act into law, adding protection from discrimination for transgender people to the Human Rights Code. It has taken the Ministry of Community Safety and Correctional Services almost three years to update its policies on trans inmates to come into line with Toby's Law. According to Toby's Law, the common practice of incarcerating trans women with men has been in violation of the Human Rights Code. So really, what the government announced yesterday is that it will finally respect and follow its own policies outlined years ago.

Another problem arises when you consider that, much like sexuality before it, gender is coming to be popularly understood as a spectrum rather than a rigid binary of male and female. What about gender non-binary and two-spirit people? They also have a right to be treated as people; however, the gender binary is still the status quo in our society, which is a huge factor in the problems trans people face. Toby's Law is forward-looking compared to a lot of North American legislation in that it is supposed to offer protection to binary and non-binary trans people alike, but the policy revision on trans inmates highlights how far lawmakers (the vast majority of them cis people, not trans) have to go in understanding binary trans people, let alone the non-binary people whose needs aren't addressed at all. Toby's Law is still being violated by the correctional institution's failure to address the treatment of those who don't identify strictly as either male or female.

While I am grateful to see policy changes regarding how trans inmates will be treated in provincial prisons, it's unfortunate to note that federal prisons in Ontario will not be following suit. Also not addressed is how police departments will handle trans people being arrested. Currently, Canada has no federal rights or protections for trans people. Bill-C279, which would address this, has been stalled in the Senate for years.

Ultimately, this policy change fails to address the larger social issues facing trans people, such as systemic transphobia and transmisogyny, and how other forms or prejudice (such as racism) intersect with transphobia. Revamping policies regarding trans people in prisons is important but it also promotes the idea that something monumental has been accomplished, and the fear is that allies to trans people can wipe their hands clean and move on. Trans liberation requires a significant social shift in how trans people are viewed and treated by society. What needs to be focused on moving forward is changes that would see less trans people profiled and criminalized for trying to survive in a hostile society.

Sophia Banks is a photographer and trans activist. You can follow her on Twitter.

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