Bill C-36, the Protection of Communities and Exploited Persons Act: an overview

I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography somehow.  Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

That is, however, speculative.  The bill itself contains many clearer aspects that have sparked outrage from sex workers, and occasionally even from abolitionists, as well (though the objections vary).

The Canadian government’s public consultation on sex work — which sex worker advocates felt had been slanted to try to sell the “Nordic Model” of anti-prostitution law — was reported to have shown that a majority of Canadians want the selling of sex to be legal for the sake of the people who engage in it, but a mix (slight majority) of Canadians support criminalizing the buying of sex.

Apparently Justice Minister Peter MacKay decided that meant that Canadians wanted sex work criminalized in such a way that sex workers wouldn’t always be technically charged, but it would be otherwise made totally impossible to work legally and safely.  Rather than honour the safety concerns raised by the Supreme Court of Canada, the Harper government has actually exacerbated the situation in hopes of forcing sex workers into exit programs.

“The purchase and sale of sex has never been illegal in Canada,” MacKay said explicitly. “That changes today.”

It is, of course, the government’s hope that by completely criminalizing sex work, the Supreme Court of Canada’s argument — that anti-prostitution laws do harm to sex workers by preventing them from working safely — becomes irrelevant.  Courts never concern themselves with whether circumstances are made safe enough to commit a crime.  And that’s why it has decided to criminalize the buying of sex in addition to re-criminalizing everything that was struck down (with a few narrow exemptions for sex workers themselves)… and throw in some new restrictions for good measure.

(It’s alleged that an unpublished Ipsos Reid poll reportedly contradicts this government position, but the results of that poll are being withheld)

Pivot Legal Society has condemned the bill:

“This cynical, dystopic model does not resolve the problems found by the Court in Bedford to be unconstitutional, and adds new ones such as the prohibition on advertising. The Charter rights engaged by this proposed law include life, liberty, security of the person, freedom of expression and equality. Arguably all are breached.

“This is not the “Nordic” approach, nor is it a Canadian variation on the “Nordic” approach. It is an unconstitutional variation of our broken laws that impose more danger, more criminalization, and fewer safe options, contrary to the requirement of the Supreme Court of Canada to address these dangerous and ineffective laws.

“This made in Canada model will lead to continued epidemic of violence against sex workers in Canada…”

What the bill does:

1) Sellers are not criminalized or targeted… except when they are.

It’s claimed that Bill C-36, the Protection of Communities and Exploited Persons Act targets buyers of sex but doesn’t target those who sell it.  That is incorrect.  Sex workers can absolutely be charged:

  • if they work in the presence of sex workers under 18 years of age — even if they’re under 18, themselves;
  • if they work at home where children reside, if it’s asserted that the children are being negatively affected (and what about having to go visit grandma all the time… is that a negative effect?) — more on this in a moment; and
  • if they communicate in “a place where persons under the age of 18 can reasonably be expected to be present,” stop traffic, etc. (the penalty for this could be up to five years in prison)

The mixed signals on charging sex workers opens up some ability for law enforcement to use the potential for charges (and the lack of clarity on what is legal) to manipulate people.  This could result in the threatening of charges in order to intimidate a person into incriminating themselves or incriminating others (perhaps even falsely, in order to escape trouble).  This lack of clarity could also be used to scare people into pleading guilty (regardless of whether it’s true) to seeming lesser charges, in order to escape risking more frightening legal possibilities.

Regardless of the exemptions included in the bill, there are still institutional barriers to keep sex workers from receiving assistance from police or communicating with them with confidence.  For example, the search and seizure powers make no exemption for sex workers themselves.  Even if they can’t be charged for advertising their own services, what’s to stop police from seizing their computers and targeting their current and past clients in one fell swoop?  It’s incredibly naive to think that the rapport between law enforcement and sex workers would be improved in any way by this law.

Could the legislation affect access to social services as well, if those services aren’t specifically exit-related? Or custody of children?  Even if a sex worker cannot be charged for advertising sexual services in a particular situation, might it still violate a lease by being classified as a criminal act?  The implications are uncertain.

2) Communication.

The law against “communicating for the purpose of…” — which put sex workers in unsafe situations by limiting their ability to screen clients and negotiate — is back, and is actually made more restrictive by applying it to “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present.” That last part is key: a minor doesn’t actually have to be present, there only needs to be an undefined reasonable expectation (and it will be up to the courts how widely that can be interpreted).  Your car could be a public place.

In the case of sex workers who have children, even if their children can be kept unaware of their parent’s pursuits and are never present when they see clients, does their home become a “public place?”

It’s still never safe for buyers to communicate to buy sex, but where does it become safe for a sex worker to communicate to sell sex? If they can only communicate from home and without the use of the Internet or public spaces, well, that certainly complicates things.  Bill C-36 distinguishes itself by targeting indoor sex work so that it becomes impossible to engage in safely, even if you’re the sex worker who is supposed to be exempt from the law.

A bar is still a public place, but it’s not “a place where persons under the age of 18 can reasonably be expected to be present.”  So it’s legal-ish or closer to legal-ish, and the penalties for anyone caught are smaller. So now, the Harper government has made sex workers safer by pushing them into darkened spaces with clients who have been drinking.

But at the same time, there is a disincentive for bar owners to allow sex workers to communicate on their premises, for fear that it could be claimed that the bar or management might be materially benefiting from the presence of sex workers in some way (i.e. increased sales and patronage).  So then there is a constant harassment of anyone in a bar who is suspected of being a sex worker.

By tactical reasoning like this, it becomes a strategic minefield in which people are forced to take more chances, and place themselves in the spaces of people they wouldn’t normally trust, simply because those people are likewise willing to take the risk of associating with them.

Communication can’t be understated.  If one can’t take the time to negotiate clearly, has to speak in code to avoid detection, and has to resort to an imply / infer scenario, then it makes it impossible to screen clients to see how agitated they might be, creates an automatic mutual distrust between workers and dates, and makes it hard to set limits about what types of sexual act one is or isn’t willing to perform.  This was a key issue at the heart of the Superior Court of Ontario and Supreme Court of Canada rulings that originally struck down the three anti-prostitution laws replaced by this bill.

3) The Bawdy-house rules.

The ban on “common bawdy-houses” is back, with the bawdy-house defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.”

This targets massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged).  Additionally, if a sex worker keeps a separate address to work from, it’s considered a bawdy-house. So now by law, sex workers can only work from their homes.  Because it’s oh so much safer for everyone to know where you live.

Of course, one can imagine the condemnation that’s going to be heaped upon sex working mothers who work under the same roof that their children live under, regardless of whether the kids are ever actually present when anything is happening.  But the law actually pushes them to do that.

Sex workers sometimes share a separate address, or prefer to work in places like massage parlours or strip clubs, so they can work together for mutual safety.  Under this law, that’s not a legal option.

4) What constitutes a material benefit from the sale of sex?

“Living off the avails…” returns as “receiving a material benefit that derives” from the sale of sex. It does provide an exemption (subject to interpretation) for some people who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker:

“… evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services…” except “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived…”

How that will be interpreted remains to be seen.  It’s not entirely clear if this provision targets assisting arrangements from referrers, drivers, bodyguards, associates and other business partners, if something beneficial (not necessarily cash) is exchanged.  The Justice Minister says it’s up to interpretation of whether the associate is exploitative in any way.  Sometimes, the practical application of something like this is to arrest all, use the law to maximum advantage, and let the courts worry about whether or not a situation is exploitative, after the fact.

Escort agencies, massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged) are all banned by this provision, with a potential sentence of up to 10 years in prison.

5) The new ban on all advertising of sexual services

This bill reaches further than anything previous, by banning all advertising of sexual services.  Anyone who knowingly provides a space in which to advertise (whether in newspapers, online message boards, websites, or any other form of media) can face fines or imprisonment.

Beyond the obvious questions about freedom of speech, this raises other questions.  How much legal responsibility does an Internet service Provider (ISP) shoulder if sexual service advertising is accessed through its networks?  What steps does it need to do to avoid legal action, and how engaged will ISPs need to become in tracking such advertising?  Does this raise questions for other areas of privacy and freedom of speech for Canadians?  When I asked if C-36 might ban porn, one of the lines of reasoning was that the threat of legal action could push ISPs into instituting arbitrary and overly broad content filters, just to be safe.

And finally, is the Internet a public place? MacKay explicitly referred to online advertising, so that would seem to mean that it is interpreted that way in the law.  And while it’s said that sex workers would not be charged for advertising their own services, if the Internet is widely interpreted as a public place “where persons under the age of 18 can reasonably be expected to be present,” that exemption for them might not apply to Internet advertising.

It could almost end up working like entrapment.

Tomorrow: Conflating sex work and human trafficking

(crossposted to Rabble.ca DentedBlueMercedes.  Concerned about progressive media in Canada? Support rabble.ca)

Could anti-prostitution Bill C-36 also ban porn?

One of the concerns that has been raised about Bill C-36 is that “sexual services” is not defined.

Terri Jean Bedford, one of the plaintiffs in the case that overturned the previous anti-prostitution laws, has raised this question a number of times, without receiving an answer.  A professional dominatrix’s job, after all, involves fulfilling a fantasy, and may not include any actual sex acts at all.  Does sex have to happen in order for there to have been a “sexual service?” Where is that line drawn?

It’s because of this vague nature of the terminology that some are asking if the wording could also inadvertently ban advertising and / or paying for sex toys or the services of a sex therapist.  Advertising sexual health services could also come into question.

Is porn a “sexual service?”

Is a sexual service exchanged via pornography?  It could be argued that porn acts as an intermediary, at least, so it might be a question that is subject to the interpretation of whichever judge happens to hear it.

There are people at both ends of the political spectrum who oppose pornography and would be amenable to a ban on it — from the right usually because of concerns about morality, and from the left often because of concerns about the portrayal of women and the possibility that it contributes to rape culture.  There are also opponents at both ends of the political spectrum as well, and for the purposes of this question, it is up to readers how they feel about the prospect of such a ban.  However, people of all political stripes would hopefully agree that such a sweeping form of censorship should at least require a lengthy debate.

Under the original terms of the bill, concerns about advertising sex already treads into the realm of censorship and freedom of speech.  If that is coupled with flawed and vague terminology, it’s reasonable to ask how far beyond the original intent that could be taken.

If the bill could be used to ban porn (and that question might remain entirely speculative until something actually does wind its way through the court system), all it would take is for someone wanting to close their local porn shop to try to sue them for — or push for them to be charged with — advertising sexual services.  There’s no guarantee that anyone would succeed at that, but the possibility that it might is a question worth asking.

Key mechanisms in C-36

There are mechanisms within the bill that would certainly assist such a use of the law.

The bill includes search and seizure powers for materials that are “obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services.”  To be fair, all of those items besides “advertisement of sexual services” are already listed in the Criminal Code as materials that can be seized, currently.  But aside from the obviously important proscription of child pornography, none of those other things are characteristically illegal to buy or possess anymore (in the case of voyeuristic recordings, their actionability hinges upon how the recording is obtained), and so we don’t see searches and seizure of pornography, except through some federal departments like the Canada Border Services Agency, which simply confiscates material.  However, this law does ban advertisement of sexual services outright, so there would be greater enforceability.

Additionally, for the purposes of this law at least, the Internet is considered “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present” — or at least the Harper government sees this phrasing as the best mechanism to include online advertising.

With both the search-and-seizure powers and definition to include online media in the bill, even if it turned out that porn was not legally interpreted as a sexual service, C-36 still provides the structural basis needed to build an anti-porn law, with a minimal amount of effort required.

Soft censorship and stealth

Bill C-36 would allow the Harper Conservatives to institute a ban on porn without appearing to be pro-censorship.  A significant portion of the Conservative base uses freedom of speech as a rallying point, especially when it comes to divisive speech, tabloid-style and gotcha journalism, and hateful (though not necessarily legally hate) speech.  Even calling out hateful speech or non-legal consequences for speech can interpreted as censorship by this contingent.  So if the government wanted to establish a ban, it would probably need to be done by stealth, and look like an accident.

Regardless of how broadly “sexual services” is defined, the ban on advertising could conceivably be used to pressure Internet service providers (ISPs) to institute a content filter system much like MP Joy Smith had been calling for, only months ago.  That is, if ISPs are threatened with the possibility being held legally accountable for any ads obtained through their networks, a content filter then appears to be the path of least resistance.  And no matter how specific ISP programmers might try to be, content filters have a tendency to be arbitrary, overly broad, and filter unintended content, just to be safe.  Even if a solid ban cannot be accomplished, soft censorship would remain possible.

Where persons under the age of 18 can reasonably be expected to be present: the legal tactic

The eerie phrasing of “a place where persons under the age of 18 can reasonably be expected to be present” first raised this question in my mind, because it sounds very much like the legal tactic used in Russia’s law banning all “homosexual propaganda” (that is, anything that portrays LGBT people positively — and I’m not speaking hyperbolically when I say that).  When that law passed, the Canadian and American religious right applauded the move, and began debating ways to bring such a law to North America.  Although it could be a haphazard trek from point A to B, each win that occurs in between provides red meat to key elements of the social Conservative base, and injects legislation into the bedrooms of the nation.

“Instead, the official reiterated the government’s position that political parties and candidates, not Elections Canada, would be responsible for increasing voter turnout under Bill C-23.”

“Instead, the official reiterated the government’s position that political parties and candidates, not Elections Canada, would be responsible for increasing voter turnout under Bill C-23.”

That’s the altogether revealing comment that might have slipped past you in a Hill Times article last month which showed that a 2008 Elections Canada ad which was seemingly critical of industry — and which Conservatives had pointed to as evidence that Elections Canada needed to be stripped of the ability to encourage people to vote — never actually aired in the first place.

“The ad—a 25-second video that contrasts urban pollution and emissions to an evergreen forest as it urges youth to “vote, shape your world”—was created for Elections Canada but cancelled in 2007 by the newly installed chief electoral officer that year, Marc Mayrand.”

The obvious irony — that the allegedly partisan commercial was pulled because it was considered not objective enough, and yet is being used to silence impartial voter encouragement — is significant on its own.  But it becomes that much more jaw-dropping in the face of the Harper government’s position: that it was important to end impartial voter drives, in favour of clearly partisan ones.

Stephen Harper has made no secret that his aim is to reshape Canada so that the Conservatives become the nation’s “natural governing party.” He’s been arguably helped by the fact that the anyone-but-conservative vote has been split among three parties, with few other distinctions among them — especially since the NDP dropped socialism from its platform and the Liberals have been adept at obscuring their own neoliberal track record.  The hypocrisies already noted about the Harper government’s “Fair Elections Act” have already revealed that this bill is intended to help achieve this natural governing status, but the comment above reveals that the use of the bill goes much deeper than the mainstream media has already realized. Continue reading

The Department of Justice Public Consultation on sex work ends Monday March 17th.

The Department of Justice Public Consultation on sex work closes March 17, 2014.

Although the questions appear to be stacked, it’s important that people who support decriminalization participate.  There’s certainly no shortage of people filling out the forms and calling for new criminalization.  The questionnaire is here, and Maggie’s Toronto provides some advice on answering positively, here.

If you’re still on the fence about whether you support decriminalization, then please consider answering questions 1-5 with the following:

“I decline to answer from my own experience, but instead call upon the Harper Government to make it a priority to ensure that any decision on sex work be made in full consultation with sex workers themselves, who face the greatest consequences of any law.  It is of particular importance that people who are currently engaged in sex work be consulted and that their experiences be given greater weight.  The recent Supreme Court ruling made it clear that workers’ safety and right to self-determination cannot be compromised.”

Need more convincing?  At RankAndFile.ca, there’s an interesting discussion about how decriminalization along with a union-style approach can lead to much improved conditions for sex workers:

Some of the public discussion of the role of sex workers in the economy has likened sex workers to small business owners or entrepreneurs; they offer a service often as independent contractors. For many sex workers, this is the case: they negotiate directly with their clients on services and payments, they deal with the management of the finances of their work, they hire and fire driving, security, or other staff. Other sex workers don’t own anything and are employees with employers. These workers may be misclassified as independent contractors in their workplaces, but labour and feminist activists should not be fooled by this common attempt to limit workers’ rights by calling them something they are not like taxi drivers and couriers.

I am not a sex worker and I am not pointing to this distinction to buy into any attempts to divide sex workers in the fight to access basic rights and better occupation health and safety standards. Instead, I think the distinction is important, because it illustrates that the labour movement could have a very specific role in improving working conditions for sex workers and creating a greater balance of power between sex workers and their employers, namely by helping these sex workers organize into unions…

Here are my comments to the Department of Justice consultation:

1. Do you think that purchasing sexual services from an adult should be a criminal offence? Should there be any exceptions? Please explain.
Comment: No. An environment in which a buyer is criminalized is still a criminalized environment, and sex workers are then pushed into unsafe situations for the sake of their livelihood. Clients are not going to feel comfortable taking the time to negotiate, and this compromises safety. It also fosters a poisonous social climate for people who engage in sex work, driving workers underground, making it difficult for them to access non-judgmental health and social services, and creating a barrier of distrust between them and authorities.
2. Do you think that selling sexual services by an adult should be a criminal offence? Should there be any exceptions? Please explain.
Comment: No. There are existing laws that address coercion (procuring), underage prostitution and human trafficking. Beyond these points, focus should be on a person’s safety, their autonomy and empowering them to better their lives however they see reasonable. Sex workers gravitate to this work because of either poverty or opportunity, and the greatest positive impact would be to address the poverty that drives the more negative of scenarios.
3. If you support allowing the sale or purchase of sexual services, what limitations should there be, if any, on where or how this can be conducted? Please explain.
Comment: There should be no laws targeting sex work. Any legal discussions should be done with extensive consultation with and consideration of sex workers.
4. Do you think that it should be a criminal offence for a person to benefit economically from the prostitution of an adult? Should there be any exceptions? Please explain.
Comment: There are already procuring laws still on the books which address coercive circumstances and human trafficking. Beyond these, there should not be any laws criminalizing economic earnings from sex work. In other countries, these laws are often unreasonably abused to target sex workers, their spouses, their children, their roommates and more.
5. Are there any other comments you wish to offer to inform the Government’s response to the Bedford decision?
Comment: This consultation needs to consider the experiences of sex workers, particularly those who are still working and seeking to make a safe life for themselves. The Bedford decision clearly showed how criminalization harms sex workers, and the Nordic form of criminalization simply re-establishes the status quo. I would like to see a Canadian model that focuses on sex worker input, and protects, respects and fulfills sex workers’ human and labour rights.
6. Are you are writing on behalf of an organization? If so, please identify the organization and your title or role:
Comment: I am writing as an independent individual, and as someone who has experience in sex work at different times in my life, and with the ability to reflect on and contrast two very different sets of circumstances.

“Protective” Custody

The way that trans people are housed in detention and correctional settings has come to attention recently, after British comedian Avery Edison was detained by the Canadian Border Services Agency (CBSA) for having previously overstayed her visa — and then she was initially sent to a mens’ prison while the issue was sorted out.  After an outcry. Ms. Edison was moved to a female facility, but a number of other experiences that trans people have had with CBSA and Correctional Services Canada (CSC) have also come to light.

On Friday, I’d posted an article discussing some of the issues that come into play regarding housing in detention and corrections facilities, as well as a starting point toward a better solution. Hours later, news surfaced of yet another serious housing incident.

Katlynn Griffith was taken to a the Ottawa-Carleton Detention Centre, and placed in a holding cell with four men.  She asked to be moved because of concerns for her safety, so she was moved to protective custody.  In this case, “protective custody” means that she shared a cell with two accused male sex offenders.

She was finally transferred to a womens’ section of the jail the following morning.  CBC reports:

Baxter said while in custody, Griffith was subjected to homophobic slurs from inmates and requests to perform sexual acts and was allegedly referred to as ‘it’ by guards.

The Cracked Crystal Ball II calls this an act of aggression on the part of the guards:

The only way this makes sense is if the guards believe that their role is to mete out arbitrary punishment over and above what incarceration already is.

How often does this have to continue to happen before CSC and CBSA admit that there’s a problem?

Reprising from Friday’s article:

And yet, the solution is far easier than one might expect.  Housing trans people “in a way that is not inconsistent with their gender identity” allows for situation-relative options, while still providing dignity for trans people and safety for all concerned…

Extensive discussion at the link.

On the Detention of Trans People

(This article has been updated with information newly disclosed in a report by Global News — Mercedes, 24April14)

“… in a way that is not inconsistent with one’s gender identity.”

Remember that phrase.  It’s going to simplify something that might otherwise seem like a complicated issue.

So this British comedian walks into Toronto’s Pearson International Airport.

Some of you have heard this one before…

The treatment of trans people (particularly trans women) in detention facilities, in the correctional system and in border security has come under re-examination recently, following the story of 25-year old Avery Edison.  The British comedian had overstayed her student visa during a previous visit to Canada, and so upon her return, she was detained by the Canadian Border Services Agency (CBSA).  That would all be unremarkable, if not for the fact that she is trans… which means that CBSA did not feel they had a space to accommodate her, and instead sent her to spend the night in a mens’ prison.

This led to a backlash against CBSA (and to a degree also Correctional Services Canada, which has a similar policy to CBSA and which provided the prison facility).  By evening, it was being reported that Avery was being moved to the Vanier Centre for Women.  She has since returned to the U.K. (and has talked about the experience on a few occasions).

But although Edison’s situation has been resolved, her experience leaves unanswered questions about how trans people are handled in correctional and detention systems.  And since her situation, two other incidents have brought the issue back to media attention.

A Human Rights Law Point of Note

Human rights law with regard to trans people is still in a state of flux.  In the discussion about Avery’s situation, people pointed to Toby’s Act, a trans human rights law that had been passed in the Province of Ontario, and claimed that the detention was a violation of that law.  But even though Edison’s detention happened in Toronto, Toby’s Act does not apply.  The Canadian Border Services Agency (CBSA) — like Correctional Services Canada (CSC) and the RCMP — is a federal agency, and therefore subject to federal legislation.

On the other hand, Randall Garrison’s federal trans human rights bill, C-279 — which passed in Parliament and is awaiting approval by the Senate — would apply… but it hasn’t received Royal Assent as of yet.  A similar but more comprehensive bill (Bill Siksay’s C-389) passed in the previous Parliament, but died before receiving Senate approval, when an election was called.  C-279 would apply to federal institutions, while most peoples’ employment, housing and access-to-service situations remain provincial in jurisdiction.  And to be fair, even if Bill C-279 had been given Royal Assent, it would still likely take CBSA, CSC and other federal agencies some time to bring their policies in line to be consistent with it.

However, they have had since at least 2011 to realize that there would eventually need to be a policy change, and have not done anything (including other previous issues at the border alone, in 2013).  A trans human rights law will inevitably pass, whether in this session or in the next Parliament.  The time to plan for and begin that change is now.

Housing of Trans Inmates and Detainees

Correctional and detention facilities currently house trans people (and people who were born with intersex medical conditions) according to the configuration of their genitalia — if you have a penis, you’re housed with males, and if you have a vagina, you’re housed with females.   This policy is also accompanied by a lot of gender essentialism, invalidation, misgendering and antagonism, both from hostile staff and from other detainees or inmates.  And although some will minimize this as inconsequential or as mere expressions of free speech, the lived experience of it is in fact one of deliberate and sustained hostility and dehumanization.

This housing policy can create a cyclical problem in which trans people are housed contrary to their gender identities because of their genitalia, but are also then denied access to medical care like genital reassignment surgery (GRS), which would (by extension) be a crucial step toward obtaining more appropriate housing.  In the U.S., a 14-year-long series of lawsuits pertaining to access to medical services continues, following the appeal of the most recent verdict in Michelle Kosilek’s favour.

In Canada, a human rights complaint had resolved the issue in trans peoples’ favour in 2001, but a 2010 directive from the Harper government instructed CSC to stop funding GRS surgeries, anyway.  The post-2001 policy is still on CSC’s website, but the actual practice under the Harper government has been to ignore the policy and deny GRS, which the government insists is not essential (contrary to the medical consensus).  The Conservative government does so via a distortion of the “real life test” (RLE, better known as “real life experience”) recommended by the WPATH Standards of Care (SoC).  The SoC requires living as ones identified gender for one year in the community, and the government considers that RLE suspended when a person is incarcerated (contrary to WPATH’s intent).  This “suspension” of the RLE also opens up the possibility of ignoring an inmate’s attempt to transition, or denying things like hormone therapy, although it’s not certain if this is occurring.  Prisoners’ Legal Services, based in B.C., is fighting to change CSC’s interpretation of the RLE.

Of course, there are two larger issues outside of this vicious circle.  The first is that “trans” covers a diversity of people.  Trans can signify a biological transition from one’s birth sex to their identified sex (which treads into medical territory, and refers to the people most commonly thought of), or a need to live between genders or independent of gender somehow (mostly through various modes of gender expression, but also sometimes involving some medical transition) — or some combination of those two characteristics.  [NB: the reason I use "trans" terminology, in fact, is to demonstrate that I'm referring to a diversity of people who are not easily defined under a single label]  For trans people who need surgery, there is often an anxiety and dysphoria that can make it a substantial and urgent need — but not all trans people experience that dysphoria or require surgery.

That leads to the second larger issue — that a person shouldn’t have to undergo major surgery/ies in order to be entitled to the same human rights and dignity as their peers.

And everyday practice does not always align with policy, for that matter. In American prisons, there have been cases where housing was sometimes not even determined by genitalia or identification documents — even though those are the policies — but by a subjective visual assessment of a person’s gender.  And sometimes, they have been completely wrong.  It has certainly led to trans women being housed with men even if they have had genital reassignment surgery.  Canadian prisons may have a better track record in this regard (although Avery Edison had a female gender marker on her ID), but it really depends on the employees empowered to make judgment calls.  We’ll return to that point.

Identity Documents

Part of what discourages institutions like CBSA and CSC from addressing trans accommodations is the fact that identity documents further confuse the issue.

Most provinces have policies requiring surgery and a doctor’s examination of genitals before gender markers can be updated — something that brings up human rights issues, especially when one considers that a genital reassignment surgery requirement is also a form of sterilization, essentially barring trans people from future procreation.  If that sounds like stretching to you, it’s worth remembering that at one time, some countries consciously codified this into their laws.

This surgery requirement creates hardships, however.  As not everyone medically transitions and/or proceeds to surgery, this results in incongruent identification.  For those who do transition medically, the process is at minimum a year (recommended by the current medical standards of care set by WPATH), but more often takes several, especially when there are barriers in accessing medical care, financial issues and other challenges.  During this time, incongruent identification opens people up to disenfranchisement, discrimination and even violence.

For this reason, some provinces have been revising their policies.  This is an important step to allowing trans people to participate in society, but in the interim, it also creates a situation in which identity documents are inconsistent from province to province.

In terms of border security, they’re even less consistent from country to country.  Some provinces (and some U.S. states) do not allow trans people to change the gender marker on their identification ever (regardless of surgical status).  A few nations are now starting to include the option of third gender markers (such as “X” for “not specified”).

And even when policies of accommodation exist, sometimes the steps to get there are amazingly inscrutable — witness this handy flow chart spanning three pages, outlining the steps a trans person needs to go through to obtain a gender-congruent passport, in Canada.

Consequently, identification documents can’t — at this point in time, at least — provide any definitive guidance on how trans people should be housed in correctional or detention situations.

(Trigger warning: there is some general discussion about rape and the fear of potential rape situations below)

“… in a way that is not inconsistent with one’s gender identity.”

Entities like CBSA and CSC are often afraid to look at changing their policies on trans people because it seems too daunting a task — and the complexities of identification certainly reinforce this impression.  Often, the idea of housing a woman who has a penis with other women also brings up the spectre of rape in womens’ institutions, and so correctional systems can be loath to considering change.

It is unreasonable to assume that women who have penises are automatically potential sex predators.  On the other hand, it is also unreasonable to require that all women with penises be accommodated in general female populations.  What’s missing is context, and a reasonable assessment of the risk that any individual (because predators exist in any characteristic population, even among cis women) poses to others.  A woman with a history of violence is justifiably going to be viewed differently from one who overstayed her visa.  An individual’s history must absolutely be taken into account.  Accommodation as one’s identified gender is an ideal situation, but violence, predation and other factors in detained individuals’ histories certainly has to be considered.

And yet, the solution is far easier than one might expect.  Housing trans people “in a way that is not inconsistent with their gender identity” allows for situation-relative options, while still providing dignity for trans people and safety for all concerned.  Accommodations for a trans woman might be a female facility, a trans- or LGBT-focused facility, short-term isolation or semi-isolation, or some other alternative.  No one solution fits all — for example, a trans-focused wing might still deny people access to programs that are available to other inmates and which they would otherwise qualify for — so a final decision is inevitably context-dependent.  Individual histories and risk assessments can be taken into account.  Individuals can be moved according to the varying levels of risk they both pose and are potentially subject to from other inmates (the latter seems to often be forgotten when discussing housing of trans people).  And yet a trans woman’s identity as a woman can still be respected.

One’s gender identity can be determined through a combination of factors, starting with a person’s own self-identification, and verified through supporting information, such as the individual’s gender expression, their identification (if updated), the name that they are currently using (i.e. if found on a piece of mail or correspondence on their cell phone), a letter from their doctor, or other supporting information.  There should be some flexibility, because hard-specifying particular forms of verification can be problematic: for example, not everyone can afford to update their legal identity information; also, requiring a letter from a doctor can create an institutional barrier to being accorded one’s human rights.

An individual’s own wishes should also be taken into account.   For example, some trans men are uncomfortable with the idea of being housed with males in detention and correctional systems.  And some trans people do not identify as either gender.

Although there may not be a hard-and-fast rule for every situation, housing trans people “in a way that is not inconsistent with their gender identity” provides a respectable base from which to start, within the context of nearly any given situation.

It’s More Than Housing

It’s absolutely crucial that staff receive training on professional communication with and treatment of transgender and gender nonconforming inmates.  They also need to be aware of intersex conditions enough to respect individuals who may not identify as trans, but still not neatly fit into binary housing defined by physical sex.

Police forces have begun to revise their policies surrounding strip searches of trans people, so that they’re searched by a person of their identified gender, or else they can opt for a “split search,” with one male and one female officer.  This is because strip searches of trans women by male officers has historically resulted in abuse, and resulted in a 2006 ruling asserting trans peoples’ right to dignity.

Correctional and border security institutions need to adopt similar policies, and to also ban gratuitous searches or physical examinations of transgender inmates and those with intersex conditions solely for determining their genital status.  If the need for a genital examination arises outside of a necessary strip search scenario, it should be conducted by medical professionals, with the understanding that the option to be examined by a medical professional of ones identified gender should still apply.

Rape and Torture Were Not the Penalty

People who are incarcerated in the correctional system are usually not given a lot of sympathy, and people detained by border and immigration services have been increasingly seen with the same kind of negativity (or at best, ambivalence).  It’s important to remember that regardless of what a person has done, they’re still entitled to due process and the same rights and dignity of others in the correctional system.  We certainly don’t sentence people to prison rape, for example.  As soon as a person is targeted for specifically additional treatment because of who they are, that quickly becomes cruel and unusual punishment.  And it’s important for social movements to care about all of those within their constituencies — even those who make mistakes.

In the case of trans people in detention situations or worse, that cruel and unusual punishment starts with constant hostility and antagonism pertaining to their gender identities.  Pronouns and names become weapons, and that is simply the start.  Trans women housed in male facilities also become very obvious targets for potential rape.  This is significant, and it can be argued that by consciously and deliberately housing trans women with men, the Canadian government may in fact be institutionally sanctioning that rape.

Institutions usually try to reduce this risk of rape by keeping trans people in administrative segregation — a nicer way of saying “solitary confinement.”  This removes social interaction almost entirely, it is psychologically devastating, and the United Nations asserts that over 15 consecutive days of solitary confinement classifies as torture.  For trans women, solitary confinement is sometimes the full length of their incarceration.

Avery Edison’s story and those that have followed reveal not only a problem with housing by CBSA and CSC, but also a severe education issue among staff in both the border and correctional systems. Both can be remedied… it’s just a question of whether institutions want to do so.

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