Petition Letter: Protect Bill C-16

P4W Memorial Collective
July, 2020
Kingston, Ontario

The P4W Memorial Collective is an abolitionist group of women who were imprisoned at the federal Prison for Women, alongside women, trans and non-binary folks who have never been in prison, working together to create and enliven healing spaces and abolitionist dreams. As a collective that includes former prisoners with diverse gender experiences, we are concerned about the recently published “Canadian Women's Declaration; An Appeal to Repeal Bill C-16” [1]. This Appeal to Repeal Bill C-16 has been distributed and signed as a petition by over 900 people and emailed to the federal government on Jan 25th, 2020, and claims to represent women's voices in general - as well as those of women prisoners - in supporting changes to the law regarding transgender prisoners. These changes would allow the Correctional Service of Canada (CSC) to segregate trans women from the general prisoner population in federal prisons for women, and/or possibly implement a moratorium on the transfer of trans women from men's to women's federal prisons. This Appeal to Repeal Bill C-16 does not represent the voices of the vast majority of trans and and gender non-binary people, feminists, human rights advocates, prison abolitionists, prison reform advocates, and allies.

Anecdotal evidence from the women involved in the P4W Memorial Collective who have spent time in prison, paints a picture of trans women who are kind, generous, funny and intelligent, not to mention all of our wonderful relationships with family members and friends who are trans. Throughout history there is a tragic pattern in which people who share the same skin colour, religion, sexuality, or ancestry, are targeted by others, using the actions of one person or the few, to condemn the entire group. To use a colloquial expression, this is known as “painting everyone with the same brush,” or to put it more succinctly, discrimination, racism, sexism, homophobia or in this case, transphobia.

As of Jan 22nd, 2019, there were 10 trans women out of a total population of 800 federally sentenced women in prison, which translates to slightly more than 1% of the women's prison population.[2] If Bill C-16 is repealed, the hard-fought-for amendments to the Canadian Human Rights Act, and the progressive amendments to the Criminal Code that protect gender expression and gender identity in law, will be lost. As a result, in the six federal prisons for women in Canada, there would be one or in some cases two trans women living in a segregated area of the prison just because they are trans, not because they have demonstrated themselves to be a danger to the others.

In a long addendum to the Appeal to Repeal Bill C-16, called “Notes on Terms,” the petitioner’s arguments are clearly rooted in transphobia, as the following quote indicates: “Trans women: We reject the term trans women because, by definition trans women are men. They are not a subset of women (and vice-versa for trans men). However we will occasionally use these terms solely for the sake of brevity." The Declaration's petitioners reinforce their position by referring to trans women as "feminine men,” and using the pronoun “he” throughout the Appeal to Repeal Bill C-16. The writers also reject the concept of self-identification as a means of authenticating whether an individual is trans, and in doing so, they have forgotten the long and painful history of the criminalization of gender and sexual “deviance.” Their Appeal to Repeal Bill C-16 appeals to the State and to prisons to confine and police gender-deviant bodies, despite the reality that trans and gender non-binary people are already extremely vulnerable to acts of violence, both inside and outside of prisons.

The Appeal to Repeal Bill C-16's use of the expression "feminine men" to describe trans women paves the way for proponents to argue that trans women should either be segregated from the general population in women's prisons, and/or they should be refused transfers from men's prisons to women's prisons. As the Appeal to Repeal Bill C-16's addendum states, “it [referring to Bill C-16] infringes upon women's rights to be defined as females and to have legal sex segregated spaces [emphasis added].” The Appeal to Repeal Bill C-16 bolsters these arguments by using allegations that some trans women in women's prisons, who have not had Sex Reassignment Surgery (SRS), have been non-consensually exposing their sex organs to other prisoners. There are also more serious allegations that women in women's prisons have been sexually assaulting and raping other prisoners. We are not denying the validity of these claims. Rather we are arguing that CSC has a solid history of segregating and/or otherwise punishing prisoners in population who commit offenses, regardless of their sexual orientation or gender identity, race, ancestry, or religious beliefs. Our purpose here is not to suggest how the CSC should punish, segregate or otherwise deal with prisoners who offend within the prison confines. Instead we aim to protect the rights and freedoms of all prisoners from discriminatory punishment.

In magazine articles and online messages supporting the Appeal to Repeal Bill C-16, there are constant references to no-ho/no-op (no hormone, no operation, referring to trans women who have not undergone SRS, either by choice or circumstance) trans women exposing their penises to the other women prisoners in the living units. Once again these allegations are used to justify separating trans women from the general population in order to create so-called “women-only spaces,” i.e., spaces for people who have been assigned female at birth. There are people who will question why some trans women do not have SRS. In Canada, SRS is covered by provincial health care plans, but only after an assessment by a state approved professional, and if SRS is recommended, then they must wait for a surgical appointment. Studies show that the waiting times for the surgical assessment alone take on average 150 to 180 days which means some people can wait for one day while others wait five years with some determining factors being whether the person lives in a rural or urban area or whether they are white or not.[3] In addition, trans and gender non-binary people are individuals, not one monolithic group, and each individual has a unique relationship to their own body. Not all trans and gender non-binary people choose to modify their bodies via hormones or surgeries, according to state demands of what a trans body must be to be recognized legally as such.

Some of those advocating for the repeal of Bill C-16 begrudgingly suggest that there could be “trans-inclusive spaces” where “the rights of trans prisoners could be upheld where infrastructure supports it." This caveat appears to be a nod to the rights and freedoms of imprisoned trans women, but also speaks to the glaring naivete of these proponents. Those familiar with the history of CSC and prison reform will recognize that when it comes to spending money, security enhancement will supersede the construction of infrastructure for "trans-inclusive spaces" - every time - unless there are laws compelling the CSC to do otherwise. The greatest beneficiary of the Appeal to Repeal Bill C-16 is CSC, because it will bolster their arguments that a prisoner's gender assigned at birth should determine security considerations including where they are imprisoned, and whether or not the use of weapons is justified. In a recent federal court case, Boulachanis v Canada (Attorney General) 2019 FC 456 (CanLII), involving the refusal of CSC to transfer a trans woman from a men's to a woman's prison, CSC argued that “recent changes in the other inmates' perception of Ms. Boulachanis now presented a threat to her safety” (at paragraph 21, 23, 24.). Even more alarming were CSC arguments that if “CSC employees are not permitted to use firearms in women's prisons (at paragraph 41)” then prisoners should be held in prisons that correspond with their gender assigned at birth. At present, guards are not allowed to carry around any kind of weapon in the women's prisons, unless an extreme emergency warrants it.

At the root of CSC's legal arguments is the contention that a person's reproductive organs – what the Appeal to Repeal Bill C-16 and CSC refer to as a person’s sex – are the true marker of a person's gender and as such, trans women in women's prisons pose a greater risk to both other prisoners and staff because they have testosterone-enhanced physical strength. If you follow this argument to its logical conclusion, the CSC will justify using weapons in women's prisons if they are forced to comply with Bill C-16 and the recently amended Human Rights Act. Those who have worked or lived in a prison can testify that there are cisgender women who are as strong as the average cisgender man, and there are tiny cisgender women who are as dangerous as any cisgender man. It is remarkable how resourceful women can be if faced with a threat. Both cisgender men and cisgender women in prison are known to use what are commonly known as “equalizers” if faced with a serious threat. “Equalizers” can be home-made knives, bats, poisons etc., that make up for any inequities in terms of body strength. Trans women living in the general prison population will not pose any greater risk to other women than already exists amongst cisgender women. The threat of violence that exists in prison is not due to the identity of any specific prisoners, rather it is a structural issue that persists due to the structural violence that prisons represent: punishment, isolation, and depravation.

Contradictions consistently permeate the arguments made by the advocates for repealing Bill C-16. Many of those advocating that trans women be segregated in separate spaces, claim to be abolitionists and against the practice of segregation. There is no other word to describe an area where trans women are separated from the rest of the prison population, other than a segregated area.

In a prison setting, there are women who are not trans who have assaulted or murdered another woman or even neglected, abused or murdered a child. Yet, if a cis white woman commits a violent act against another woman, we do not advocate separating all white cis women from the general prison population just because they share the same skin colour and gender identity as the perpetrator of the violence. So why should we segregate all trans women from the general prison population when one trans woman has committed an act of violence against a woman or child.

Another argument proponents of the Appeal to Repeal Bill C-16 make for separating trans women from the general population is that 80% of the women's prison population have been sexually and/or physically abused by men, and therefore will be traumatized by living in close quarters with "men" or "feminine men" (as the Appeal to Repeal Bill C-16 consistently describes trans women).[4] Once again, contradictions arise. Trans women are more likely to have experienced sexual/physical abuse than any other group of women. For example, “The Justice Department (U.S.) Bureau of Justice Statistics found that trans women are 9 times more likely than other prisoners to be victims of sexual harassment or assault.” There is no reason to believe that trans women in Canada would experience less victimization than those in the United States. This holds true as well for their experiences being imprisoned in men's prisons. Research has found that, “Trans women in male prisons are 13 times more likely to be sexually assaulted than is the general population, with 59% reporting sexual assaults.”[5]

In a women's prison setting, prisoners are far more likely to be traumatized by male guards, who walk through the ranges or units or pods on an hourly basis doing “count,” peering into cells where women could be sitting exposed on the toilet, sleeping on their cot, in the midst of undressing or any other activity that leaves them vulnerable. This constant exposure to male guards during the most private and intimate of activities is a far more pervasive trigger to women who have been abused than the minuscule number of alleged assaults or inappropriate acts perpetrated by trans women with or without SRS. Why are the proponents of this Appeal to Repeal Bill C-16 not focusing their efforts on having male guards removed from the living areas in women's prisons? In 1989, the Canadian Human Rights Commission upheld the CSC Cross-Gender Staffing Policy on the basis of a decision by the Public Service Commission Appeal Board, as well as a Supreme Court of Canada ruling.[6] These decisions gave guards the right to work inside men's or women's prisons regardless of their gender. Before these rulings, male guards were only allowed on the ranges, pods and living units in women's prisons during emergencies or in situations where tradespeople had to repair plumbing or electrical or carry out some other essential work. Even then, they had to warn the women prisoners of their imminent presence.

In every remand, provincial or federal prison where there are female prisoners, there is a history of male staff, whether contract workers, guards or administrators who have been accused of engaging in a sexual relationship with a female prisoner. Granted, in some cases the female prisoner is consenting and may even claim to be in love, but the power imbalance between a male staff member and female prisoner makes consent complicated. There is also the aggravating factor of heterosexual women living in an unhealthy environment where there is no outlet for their sexuality, leaving them vulnerable to predatory sexual behaviour by male staff. Another factor is the lack of power and control women prisoners experience in prison, leading some women prisoners to engage in a sexual exchange with male staff for tobacco, drugs, or some other commodity. Once again, if the proponents of repealing Bill C-16 are so concerned about the negative impacts of men on the women prisoners, then why are they not focusing on the elephant in the room; male staff working in the women's living areas?

One of the dangers of defending the trans community from allegations of violence, misogyny and child abuse is how easy it is to forget that the overwhelming majority of trans women in prison or out, are not misogynist or violent or abusive to women and children. In fact, according to the 2015 US Trans Survey, “nearly half (47%) of respondents were sexually assaulted at some point in their lifetime and one in ten (10%) were sexually assaulted in the past year. In communities of colour, these numbers are higher; 53% of Black respondents were sexually assaulted in their lifetime and 13% were sexually assaulted in the last year.”[7]

We, the undersigned, support the rights and freedoms of all people to gender identity and expression as entrenched in the Canadian Human Rights Act and the amendments to Bill C-16 which allow for the rights and freedoms of gender identity and expression to be protected by law.

Footnotes:
[1] “Canadian Women’s Declaration: An Appeal to Repeal Bill C-16. C-16” by Canadian Women, Nov. 8, 2019 - http://www.pdfquebec.org/English/documents/2019-11-Declaration_des_femmes_canadiennes_VA.pdf.
[2] “Male-Bodied Rapists Are Being Imprisoned With Women. Why Do so Few People Care?” by April Halley, Oct. 12, 2019, Quillette.
[3] “How Long It Takes to Get Gender-Affirming Surgery Across Canada” by Sarah Berman, Vice, Oct. 19, 2017 - https://www.vice.com/en_ca/article/pa3e8n/how-long-it-takes-to-get-gender-affirming-surgery-across-canada.
[4] Louise Arbour Commission of Inquiry into Certain Events at the Prison for Omen in Kingston, supra note 5, at 201, 1989; “Canadian Human Rights Commission: Protecting Their Rights: A systematic Review of Human Rights in Correctional Services for Federally Sentenced Women.,” Ottawa, Canadian Human Rights Commission, 2003, 6.
[5] New York Times, April 16, 2015.
[6] Taking the Rap: Women Doing Time for Society 's Crimes, Between the Lines, 2018 by Ann Hansen, page 232.
[7] VAWnet: An Online Resource Library on Gender-based Violence Against Trans and Non-Binary People.