Correctional Service of Canada urged to draft new directive upholding right to gender identity

Feminist groups opposed draft directive on managing offenders with gender identity considerations

Correctional Service of Canada urged to draft new directive upholding right to gender identity

Two feminist groups have expressed concern over the Correctional Service Canada’s (CSC) draft directive on managing offenders with gender identity or expression considerations.

In their joint letter, the Morgane Oger Foundation and the Women’s Legal Education and Action Fund (LEAF) urged CSC not to implement the draft directive or the “Management of Offenders with Gender Identity or Expression Considerations.”

Under the draft directive, offenders will initially be classified according to biological sex or the condition of being male or female. Then, they will be admitted to either a men’s or women’s correctional institution based on their biological sex, unless and until a thorough assessment takes place and there are no overriding health or safety concerns.

According to Morgane and LEAF, the draft directive is “rooted in transphobic views of sex and gender,” causing significant harm to transgender, two-spirit, non-binary and gender-diverse individuals in the correctional institutions.

“The directive’s foundational assumption is that persons are to be categorized and placed according to sex, rather than according to their gender identity,” they said. “This is based on an outmoded assumption, no longer accepted in human rights law, that one’s sex characteristics and histories constitute one’s real sex.”

In 2017, the Parliament passed legislation prohibiting federally regulated organizations from discriminating against persons based on gender identity or expression.

“CSC is now required to uphold this protection for everyone in Canada,” Morgane and LEAF said. “Yet this protection appears to be absent from the directive.”

“Instead, the directive is rooted in the mistaken view that one’s biology or anatomy at birth is determinative of whether that person is a man or a woman,” they added.

The draft directive also requires offenders to categorize themselves based on the definition of biological sex and inform prison staff of this categorization.

“We are concerned that this requirement could be used to justify imposing internal disciplinary sanctions on persons whose gender identities do not conform to CSC’s understanding of that individual’s sex,” Morgane and LEAF said. “No one should be subject to the fear of sanctions for choosing if, when, or to whom they disclose any attribute of their biology or anatomy.”

Instead, Morgane and LEAF asked CSC to draft a new directive in meaningful consultation with transgender, two-spirit, non-binary, gender-diverse individuals and gender-equity seeking organizations.

“A meaningful consultation engages directly affected communities — including in this case, racialized and Indigenous transgender and two-spirit women in particular — early in policy development such that their perspectives are built into a policy’s foundation,” they said.

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