Ottawa, 17 January 2022 – In their December 2020 letter to Correctional Service Canada, the Morgane Oger Foundation and the Women’s Legal Education and Action Fund (LEAF), supported by Egale Canada and the Community-Based Research Centre, provided comments to Correctional Service Canada (CSC) on the CSC’s draft Commissioner’s Directive CD-100, “Management of Offenders with Gender Identity or Expression Considerations”. In their letter, the organizations strongly urged CSC not to implement the Directive as drafted, because it is rooted in transphobic views of sex and gender that have caused significant harm to Transgender, Two-Spirit, non-binary, and gender-diverse individuals, both in penal contexts and in Canadian society more broadly.
Rather than implement the Directive, the Morgane Oger Foundation and LEAF recommended that CSC draft a new directive in consultation with Transgender, Two-Spirit, non-binary, and gender-diverse individuals, as well as with gender-equity seeking organizations. Today, the organizations remind CSC that any policies it develops must respect human rights law.
In 2017, Parliament passed legislation stating that federally-regulated government bodies are prohibited from discriminating on the basis of “gender identity or expression” . CSC is now required to uphold this protection for everyone in Canada. The Morgane Oger Foundation and LEAF agree with CSC that there is not yet sufficient clarity within CSC as to how to address incarcerated individuals’ accommodation requests on the basis of gender identity or expression. The organizations welcome CSC’s work to update its policies to improve conditions for everyone who requires accommodation on the basis of gender identity or expression while fulfilling the CSC core mission within the constraints of Canadian law. This update is an overdue initiative that advocates had asked for for years.
Unfortunately, the draft Directive that CSC proposed represented a serious step backwards for Transgender, Two-Spirit, non-binary, and gender-diverse persons under CSC supervision.
LEAF and the Morgane Oger Foundation sincerely hope that any new directive officially adopted by CSC responds to the concerns that the organizations expressed in our letter, and in particular:
- “Biological attributes” should not be privileged in the initial classification of persons with gender identity or expression considerations. Doing so is inconsistent with Correctional Service Canada’s human rights obligations.
- 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.
- Correctional Service Canada must not impose an additional and more onerous safety review for Transgender, Two-Spirit, and non-binary persons than it does on others.
“Supporting trans women’s rights is a key component of ensuring that all women are protected against discrimination”, says Pam Hrick, Executive Director & General Counsel of LEAF. “The right to live according to one’s gender identity must be recognized in correctional institutions, which are bound by the same human rights laws as other government bodies.”
“Using a prohibited ground of discrimination to justify discriminatory measures against a person is not only wrong, but courts have ruled it is also prohibited”, says Morgane Oger, Director & Lead Human Rights Tribunal Advocate of Morgane Oger Foundation. “A prohibited ground of disrimination must not be used to justify a refusal to accommodate a personal characteristic protected under Canadian human rights law”.
A full copy of the letter in English is accessible here.CSC-CD-100-Comments-FINAL
LEAF: Pam Hrick, Executive Director & General Counsel: 416.595.7170 x 2002, [email protected]
Morgane Oger Foundation: Morgane Oger +1 604 398 3982, [email protected]
The Morgane Oger Foundation works to narrow the gap between Canada’s human rights legislation and the experiences lived on the ground by those our laws were enacted to protect from discrimination and hatred.
Since 2018 we have supported Persons under the jurisdiction of CSC who are involved in human rights complaints. We accompany complainants and advocate for human rights to be recognized and respected as they make their case. As part of that work we have direct knowledge of the experiences of several Transgender and gender-diverse individuals currently incarcerated under the mandate of CSC and several who are on parole at this time. Our work has covered situations at CSC and Provincial facilities contracted by CSC, as well as remand centres and transitional housing while on parole.
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women, girls, and people who face gender-based discrimination through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.