Trans women incarcerated in Canada’s federal prisons have been housed with some of the most violent criminals, raped in male prison wards and called “it” by officials, according to an official human-rights investigation.

In January 2017, Prime Minister Justin Trudeau ordered jails to end a decades-long policy of sorting trans people based on their genitalia, days after the Correctional Service of Canada (CSC) decided to start counting time in prison towards the “12 continuous months in an identity-congruent gender role” required for gender-confirmation surgery.

The move came amid an investigation by the Canadian Human Rights Commission, after the West Coast Prison Justice Society launched a December 2015 complaint.

Xtra has obtained the commission’s investigation documents, which details three female trans inmates’ struggles in the system, alongside responses from CSC. Xtra unsuccessfully tried reaching the inmates, and is not using two of their names.

In previous reporting, Nastasia Laura Bilyk claimed she was raped twice by male prisoners in 2009 in a minimum-security prison in British Columbia. At times, Bilyk has opted for segregation for her safety. But during a three-week stretch in isolation, Bilyk only showered twice, because she felt unsafe being naked and surrounded by men. At times, she was double-bunked with male offenders.

According to investigators, prison officials often rank trans women higher on the institutional adjustment scale, alongside violent offenders and people with debilitating mental-health issues, “resulting in a higher level of security classification, which translates into a greater deprivation of liberty.”

Trans women also face peculiar techniques in the routine pat-downs and strip-searches for concealed objects. One complainant reports that “a female officer searches her top half and a male office searches her bottom half. This is not what she would prefer. She would rather have a female officer conduct the entire search.” Another female trans inmate reported an identical complaint.

One of the three inmates “reports that she is called ‘it’ regularly by both respondent staff and prisoners.” One medical document uses her deadname (her male name used prior to her transition) and includes this line: “The patient preferred us to call him as a female, but anatomically and legally this patient is declared as a male, so I will use the patient as a male in this report.”

Responding to the commission, CSC “acknowledges that there currently is no requirement that transgender inmates be referred by their preferred names and gender pronouns.” But the agency said staff have accommodated other trans prisoners’ requests, on their own accord.

Similarly, trans women are at the mercy of their case workers for help in performing their gender role in male prisons. In the document, CSC “acknowledges that feminine hygiene items and makeup are not generally available through the canteen of federal male institutions.”

The commission has found grounds for an inquiry by the Canadian Human Rights Tribunal, similar to a court proceeding that can order fines and compel federal institutions to change their practices.

The commission notes a 2016 report by the UN Special Rapporteur on Torture that found, “failure to address the human rights situation and needs of a transgender prisoner may constitute cruel, inhuman or degrading treatment under international law.” It also takes note of Bill C-16, which will encode gender identity and expression into Canada’s human-rights law if passed by the Senate.

But the case will first head to mediation, and with CSC’s January 2017 policy changes, the case will likely reach a settlement.

Now that CSC is sorting inmates “on a case-by-case basis” instead of by genitalia, it seems current inmates might be able to apply for a transfer into prisons for their self-identified gender. 

“CSC continues to assess — on a case-by-case basis — individual inmate’s placement and accommodation requests as they arise to ensure the most appropriate measures are taken to respect the dignity, rights and security of all inmates under our custody,” CSC spokeswoman Véronique Rioux told Xtra in a Feb 2 email.

“We are undertaking stakeholder consultation, including with inmates and with the LGBTQ2 advocates, to identify possible changes to the policy.”

CSC houses all adult Canadians serving sentences of two years or more, representing about 40 percent of the almost 40,000 adult prisoners in Canada. The rest are in provincial and territorial jails, including people awaiting a trial or serving community sentences. Ontario and British Columbia jails have sorted inmates based on their self-identified gender since 2015.

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