Question Period Note: Gender Diverse Offenders

The Correctional Service of Canada is committed to ensuring that gender diverse offenders are given the same protections, dignity, and treatment as other offenders.

• The Correctional Service of Canada ensures that offenders who identify as transgender or gender diverse are given the same protections, dignity, and treatment as other offenders.
• The Service is committed to ensuring a safe, inclusive and respectful environment for everyone, including gender diverse staff, offenders, contractors, volunteers and visitors.
• The Service has a duty to accommodate offenders’ requests based on gender identity or expression, regardless of the person’s anatomy or the gender or sex marker on their identification documents.
• Requests for transfers or penitentiary placements to institutions corresponding to a person’s gender rather than their sex are assessed rigorously on a case-by-case basis to address needs and risk.
• Due to the Privacy Act, I cannot comment on a specific case.

The Correctional Service of Canada (CSC) is committed to ensuring that gender diverse offenders are given the same protections, dignity, and treatment as other offenders.

Legislation and Policy

On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, came into force and added “gender identity or expression” to the list of prohibited grounds of discrimination under the Canadian Human Rights Act.

As a result of this change, Bill C-16 requires CSC to accommodate offenders according to their gender identity or gender expression. This includes institutional placement, regardless of whether the inmate pursues health-related services and/or interventions (e.g., hormone therapy or sex reassignment surgery) and regardless of the gender or sex marker on their identity documents. In exceptional cases, health, or safety concerns (for the offender or for others) preclude accommodating institutional placement requests. Nonetheless, an individualized protocol will still be developed, in collaboration with the offender, to meet their gender identity or expression needs.

In December 2017, CSC promulgated the Interim Policy Bulletin on Gender Identity or Expression. This interim policy document outlines the high-level principles and changes to operational practice, and overrides any direction currently found in individual CSC policies.

Among these changes, CSC:
• Allows offenders to be placed in an institution according to their gender identity, unless there are overriding health or safety concerns that cannot be resolved;
• Allows purchases of authorized items from CSC catalogues for either men or women if there are no safety, health, or security concerns according to the security level of the institution;
• Allows offenders to choose whether strip and frisk searches and urinalysis testing are conducted by a male or female employee; and
• Allows offenders to determine their preferred name and pronoun.

When an offender identifies gender identity or expression considerations, an Individualized Protocol is developed to capture accommodation measures, such as their chosen (preferred) name(s), pronouns, or the sex of staff that will conduct security-related procedures. An offender’s gender-related needs will be accommodated, except where it has been established and documented that there are overriding health or safety concerns that cannot be mitigated. In cases where an offender requests a transfer or a penitentiary placement to an institution that better reflects their gender identity or expression, CSC undertakes a rigorous review of the case. This includes consideration of the offender's needs and risk, for them and others, including health and security concerns, access to suitable correctional interventions, and support in the community.
In September 2020, CSC created the Gender Considerations Secretariat, whose mandate is to develop CSC’s overarching direction, guidance and tools for the management of gender diverse offenders. To further assist staff who work with gender diverse offenders while ensuring a safe, inclusive and respectful environment for all, in August 2021, the Secretariat developed a Decision-Making Guide to expand on the direction provided in the Interim Policy Bulletin and other bulletins.

Current Status

Gender identity is self-declared by the offender the moment they are taken into custody by CSC and/or at any time during their sentence. While CSC creates Individualized Protocols in order to ensure they respond to the needs of gender diverse offenders, CSC does not specifically track or identify persons with labels such as “transgender.” However, based on the number of inmates with individualized protocols, CSC can confirm that less than 1% of its inmate population may identify as “transgender” or gender diverse (i.e., two-spirit, pangender, etc.).

CSC continues to incorporate in its operations lessons learned and best practices since the promulgation of the Interim Policy Bulletin on Gender Identity or Expression (December 2017). At the same time, these lessons learned and best practices have been incorporated in a new draft Commissioner’s Directive on Gender Diverse Offenders, which is expected to be finalized in the coming weeks. The new Commissioner’s Directive will replace the Interim Policy Bulletin on Gender Identity or Expression, providing expanded direction that reflects CSC’s commitment to meeting the needs of its gender diverse offender population in ways that respect their human rights and ensures their safety and dignity as well as the safety of others in the institutions and community.

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