Transgender Inmates in Canada.

AuthorTuttle, Myrna El Fakhry

Individuals may identify with a gender that goes along with their sex given at birth, they may identify with a gender that is different from their sex given at birth, or they may identify with a non-traditional notion of gender. "Transgender" characterizes those who identify with a non-traditional gender.

The Ontario Human Rights Commission (OHRC) defines gender identity:

It is [a person's] sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person's gender identity may be the same as or different from their birth-assigned sex. The OHRC also clarifies that gender expression can include "behaviour and outward appearances such as dress, hair, make-up, body language and voice. A person's chosen name and pronoun are also common ways of expressing gender."

Correctional institutions used to place transgender inmates according to their sex assigned at birth instead of the gender they identify themselves with (their gender identity). Transgender prisoners in Canada usually face discrimination and intimidation, and exposure to different forms of abuse.

So how do federal, provincial and territorial laws or policies protect transgender inmates?


Bill C-16

On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, became law. Bill C-16 amended the Canadian Human Rights Act and the Criminal Code. This Bill "protects individuals from discrimination within the sphere of federal jurisdiction, as well as protecting against hate propaganda and hate crimes, on the basis of gender identity and gender expression."

The Bill amended section 3(1) of the Canadian Human Rights Act by adding "gender identity" and "gender expression" among the prohibited grounds of discrimination. The amendment prevents the federal government from discriminating based on gender identity and gender expression, including in its prisons.

Bill C-16 also amended two parts of the Criminal Code:

  1. It added "gender identity or expression" to section 318(4) of the Code, which defines an identifiable group for the purposes of advocating or promoting genocide (section 318) and inciting hatred (section 319).

  2. It added "gender identity and expression" to section 718.2(a)(i) of the Code, which deals with sentences for hate crimes. This section allows courts that impose a sentence to take into account evidence that the offence was motivated by bias, prejudice or hate based on a person's gender identity or expression. It means judges should consider hatred based on gender identity or gender expression.


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