Trans-women being sent to Canada's female prisons | Chris Fleury

Added: 2026-05-26

[00:00:03]There's much debate over whether biological male prisoners who selfidentify as female should have the right to transfer to a female prison facility. Now, there are concerns that female prisoners could be put at risk of sexual assault and that it could also place undue stress and anxiety among the prison population. Joining us to discuss this further from Belleville, Ontario, is constitutional lawyer Chris Flurry with Charter Advocates Canada. Good to have you with us today, Chris. And >> thanks for having me.

[00:00:28]>> You bet.

[00:00:30]Let me ask, when did Corrections Canada first begin to allow trans prisoners to transfer to female prisons?

[00:00:37]>> Well, there's a bit of a history to this, so so bear with me. Um, sure.

[00:00:41]Essentially, as long as, uh, prisons have existed in Canada, they've been segregated on the basis of sex. Uh beginning around the uh 1990s, uh Corrections Canada started to transfer uh individuals who did have sex reassignment surgery uh into women's prisons. This was something that at the time was very limited uh primarily, and I'm speculating here, um as a result of the uh very small number of people in the general population that were identifying as trans uh back in the '90s. Uh so that was something that was very uh limited and on a case-by- case basis. Uh and at that time uh it's just worth mentioning that the government of Canada was not allowing people who didn't have the operation into women's prisons and they were in fact uh defending that in court. Uh this was a a case called Kavanaaugh. Cynthia Kavanaaugh. This is a person who was denied a transfer into a women's prison uh because this person did not have the surgery and uh an appeal was launched or a uh I should say human rights claim was launched uh in the federal human rights tribunal. Uh that claim was ultimately unsuccessful.

[00:01:58]uh and one of the reasons it was unsuccessful is that the government of Canada actually marshaled some pretty significant uh expert evidence in the form of multiple forensic psychiatrists uh who spoke about the dangers of allowing uh biological males into uh women's prisons and as I say they were the government of Canada who took uh an eminently reasonable position in that case uh was ultimately successful and that was upheld uh in the federal court as well. Uh so fast forward a little bit to the year 2017. Uh the government of Canada passes uh legislation which amends the human rights uh code, federal human rights legislation uh to include protections for uh gender identity and gender expression. Uh this is bill C16.

[00:02:46]So around the same time, shortly after, the um correctional services Canada's legislation is uh amended in essentially the exact same way. And very shortly after that, uh the government of Canada starts allowing or correctional services Canada starts allowing um male-bodied individuals uh male biological male individuals with fully intact uh male genitalia into uh women's prisons. this happened. First, there's sort of an interim what they call an interim policy bulletin. As the name suggests, it's an interim policy, but that's what it allowed. And now we have uh uh what we're taking issue with in the lawsuit, which is CD 100 or commissioner's directive 100, which is essentially the same as that interim policy uh but spells out in a little bit more detail the uh the procedure. So the answer to your question is approximately 2017 is when things really started to change >> for sure. And now there's a group called Canadian Women's Sex-based Rights, Cosbar for short, uh launched a constitutional challenge against allowing trans inmates to transfer to female prisons. But now the federal government, as I understand it, put forward a motion to strike that down.

[00:03:59]And so so tell us what happened there.

[00:04:01]>> Right. So we were recently in court in uh early March. Uh there were two motions before the court at that time.

[00:04:08]Uh one was our motion uh to establish public interest standing for Cosbar. Uh because obviously Cosbar is a nonprofit organization. The the corporation itself has never been in prison nor can it. Uh so it doesn't have direct standing. Uh so it has to establish what's called public interest standing. Uh so that was one motion. Uh the other motion as you say was a motion to strike brought by the uh federal attorney general. Uh they essentially said that we had not properly pleaded uh the claim that there were not uh sufficient what are called particulars meaning the who, what, where and when. Uh that that was not sufficiently pleaded. Uh some of the background though is that uh the initial claim was filed last year. Uh some months after that, the attorney general actually asked us for what these particulars. Uh there's something called a request for particulars and they gave us that. Uh we complied and we sent out um it's something like I might get this a little bit wrong, but something like 17 pages single spaced of the who, what, where, and when. They're asking who's assaulted and when, who is sexually assaulted and when, who is harassed and when. uh and who are the perpetrators and a number of questions related to each incident. Uh we sent forward answers to those questions. Uh with all except but one question I believe we didn't answer and they had that the case law says that those particulars are uh to be looked at on a motion to strike which the judge did. uh and the judge found that essentially the claim in combination with those particulars that we provided uh was sufficient that it was not an improperly pled claim. Uh so we're ultimately successful. Cosb was successful on uh both the public interest motion, public interest standing motion and the motion to strike.

[00:06:03]>> Okay. So this is going forward then. All right. Now, now what are the main concerns that Cosworth has about transferring inmates from a male prison?

[00:06:11]What are the risks to female prisoners?

[00:06:13]What are you presenting there?

[00:06:15]>> There's so the claim itself is a uh a charter claim. It alleges breaches of a number of different sections of the charter. Uh section 7 which is life, liberty, security of person. Uh section 12 which is cruel and unusual punishment and section uh 15 which is uh equal treatment under the law. So essentially the the harms that are be being done what we've pled in the claim uh it's a vast array of harms uh ranging from uh things like uh harassment uh to assault uh to uh physical assault, sexual assault um interference with uh things like programming. Uh so if you [clears throat] remember uh a prison, most prisoners eventually do get out uh at some point. they serve their sentence and they're released. So rehabilitation uh is a major focus of Correctional Services Canada. Uh one of these rehabilitative programs, there's a couple that are at issue. Uh one is something called the motheraughter program which is meant to uh not interfere with the relationship of a mother who's a prisoner and a very young child. Uh so there are cases where children as old as five are in the prison itself.

[00:07:31]uh and in uh at least um accessible to uh male inmates who are put into the prison. Uh there's also a uh there are support groups as you'd imagine uh for uh things like domestic violence. Uh and there are uh we've heard reports of um male individuals who were in fact the perpetrators of uh violence upon women and children uh being put into those groups uh who are uh there to support the victims of violence. And another thing to to just sort of bring out here is that um although every person that we uh are representing in this uh the the female inmates uh they're all perpetrators in the sense that they've been convicted of uh in many cases a serious crime. They have criminal records. Uh so they're perpetrators in one sense um but they're also disproportionately victims and they're uh usually and there are statistics on this. I don't have them in front of me, but they're disproportionately the victims of uh violence, domestic violence, and particularly at the hands of men. Uh so these are the women who are being subject to this sort of treatment. They're uh and this is just one example of uh having to having these individuals placed into their program.

[00:08:56]And what we argue is that that completely negates the rehabilitative effect of of these sorts of programs.

[00:09:02]Well, it's almost like a ret-raumatization, right? I mean, they go through that trauma again, right? At least, you know, there's got to be an emotional impact on them for sure. I I I would think. Yeah. You know, let me ask another just just thinking here in in in some regions of Canada and for example here in Lethbridge and southern Alberta, I noticed that we we don't actually have any female only prisons that I'm aware of. So, so they share the same facility, but they do have separate living quarters from the male inmates. So, are trans prisoners in these settings asked to be are they asking to be sent to a female only facility or or are they okay staying in in in a facility where they actually share the same building, I guess. Anyway, >> so there are and just to clarify, we're not taking issue with or the lawsuit doesn't take issue with uh provincial facilities >> because there are federal Yeah, we should distinguish between there are provincial jails >> and those are in for individuals who are uh either in pre-trial detention uh they didn't get granted bail and they're waiting for their trial or they're serving a sentence of less than two years. Uh so people in those institutions and there's many many many across Canada in every province and territory. Uh we're not the lawsuit isn't about that. The lawsuit is in federal court taking issue with uh federal uh prisons and there are there's six of them across the country. There's five uh federal women's prisons and then a healing lodge in Saskatchewan uh which is also subject to the policy. Oh, >> that's good to know. All right. Now, one of the arguments in favor of allowing trans prisoners to transfer to female prisons is that trans inmates are at a higher risk of sexual assault within male prisons. So, is that the case statistically speaking? Is that tie in with this at all?

[00:10:45]>> I've I've heard that argument. Uh I don't know the extent to which it's true. I've never seen the statistics, but I've I've heard the argument. Um and intuitively, it does make some sense that they would be more likely to be the victim of a a sexual assault in a male prison. Um, ultimately what we're asking for in this lawsuit uh is not for the court to tell the government uh exactly what it has to do. Courts are very loathed to do that sort of thing. Uh what we're asking for is a declaration that the current policy is unconstitutional because of the harm uh that it causes women. So we don't want these male uh inmates to be placed and transferred into female institutions.

[00:11:28]uh but we're not telling the government of Canada exactly what it has to do uh in the alternative whether that we're not we're not saying they have to be placed in the male prison, there could be another prison, there could be a wing of a prison. Uh there's a number of different options uh policy options that Correctional Services Canada has. Um and we're not telling them exactly what they have to do.

[00:11:50]What criteria does the Corrections Canada use to decide whether or not to grant the okay to transfer from a male prison to a female prison?

[00:11:59]>> Well, this is uh it's it's actually a very interesting question. Uh the way the policy itself is phrased is that a uh inmate will be placed according to their gender identity, how they identify, unless there are overriding health and safety concerns. Uh, so Correctional Services Canada can review the file and they do review the file and they look at what the person was convicted of, what's their criminal record, how have they behaved institutionally to date, if the if we know about that, uh, and they assess the safety risk and they figure out they attempt to figure out whether or not there are uh, overriding health and safety concerns. One thing um that's worth noting though is that the definition of biological sex within the policy um it doesn't pertain to for example chromosomes how one is identified at birth uh or so on uh the definition of biological sex uh is in relation to what the policy calls uh current genitalia. So essentially if someone uh undertakes the surgery they are according to the policy a uh if they're a man who undertakes the surgery then they are a woman according to the policy and it's a I would say a a perverse sort of policy uh that is not in fact even abided by by the government of Canada. they they generally from what I'm aware of don't take this view and in fact there was a recent case called I think Cooper I'm not a part of that case but I had a chance to watch the submissions that were made in the federal court and uh uh it's Amanda Cooper I believe Amanda Cooper's lawyers they actually made this argument and because they you know they've read the policy the policy is pretty clear uh and they said actually Amanda Cooper's a female under the policy You don't get to consider any of these health and safety concerns. You don't get to consider her history of violence against women, the fact that she I think there was some incident involving a female correctional officer in that case. And they said, "Government of Canada, you don't get to consider that at all." And uh the court uh from what I'm aware didn't take up that argument.

[00:14:21]We'll see if it plays out. That was in a um I believe a motion for an injunction to get her into a women's prison. Well, this is a very interesting case. It really is. Any thoughts on where this will go legally speaking?

[00:14:36]>> We're hopeful that we're going to be successful ultimately. Um, it's going to be a long road. Uh, >> okay.

[00:14:41]>> We are we've been at it for about a year and we just, as I say, finished uh preliminary motions and were successful.

[00:14:49]Uh, the next step in the case uh is what's called discovery. So, that's where uh we are going to actually I should I should back up a little bit.

[00:14:57]The government of Canada hasn't even filed a defense. So, they're going to be filing a defense in the very near future. Uh, after that, there's a process called discovery. So, uh, the government of Canada has to turn over all of its relevant records. Uh, it's quite likely that there's going to be some disagreement about which records are relevant and, uh, admissible and which ones are not. Uh, so we'll have to make our way through that. Uh we will uh at some point uh set the matter down for trial and I anticipate eventually there'll be a a contested trial.

[00:15:32]>> It'll be a while. Sounds like. Okay.

[00:15:34]Thanks so much for explaining this to us, Chris. Appreciate it.

[00:15:37]>> Okay. No problem. Great to be here.

[00:15:39]>> Chris Flurry, a constitutional lawyer with Charter Advocates Canada.