Posts Tagged ‘ transgender ’

Canada’s Trans* Rights Bill Now Endorses Bans in Washroom and Gendered Spaces

Canada’s trans* human rights bill C-279 was amended by a Senate committee, in a way that makes it legal to ban trans* people from washrooms and gendered spaces appropriate to their gender identity.

Sen. Donald Plett, Conservative member of the Standing Committee on Legal and Constitutional Affairs, added a legal exemption for “any service, facility, accommodation or premises that is restricted to one sex only, such as a correctional facility, crisis counseling facility, shelter for victims of abuse, washroom facility, shower facility or clothing changing room.”  The amendment passed with six of the committee members supporting it, four opposed, and one abstention.

There were two other unanimous amendments made.  One added the category of “sex” to the protections in the Criminal Code (which has long been a bizarre and serious omission from hate crimes legislation).  The other removed the definition of “gender identity” which had been added in the House of Commons as a condition of passing the bill, back in 2013.  Because the bill has been amended, it would need to return to the House for a final vote before being enacted.  It is thought unlikely that the bill would be brought forward before an election call — and now, if it did, the bill’s original proponents would oppose it — meaning that C-279 is almost certainly dead.

“The very act that is designed to prohibit discrimination is being amended to allow discrimination,” the bill’s Senate sponsor, Grant Mitchell, pointed out.  “It holds people who are law-abiding, full-fledged and equal members of our society accountable for the potential — the very, very long-shot potential — that someone would misuse this to justify a criminal act.” (The transcript has not been posted yet, but the videocast is still available)

Sen. Plett has long claimed that the bill would be exploited by pedophiles and rapists to attack women and children in washrooms, a claim that has been repeatedly debunked by law enforcement officials and other experts:

Minneapolis Police Department: Fears About Sexual Assault “Not Even Remotely” A Problem. Minneapolis police spokesman John Elder told Media Matters in an interview that sexual assaults stemming from Minnesota’s 1993 transgender non-discrimination law have been “not even remotely” a problem. Based on his experience, the notion of men posing as transgender women to enter women’s restrooms to commit sex crimes “sounds a little silly,” Elder said. According to Elder, a police department inquiry found “nothing” in the way of such crimes in the city… [Phone interview, 3/11/14]”

Additionally, criminal activity in a washroom or gendered space would continue to remain criminal regardless of the gender of the perpetrator.  On the other hand, trans* women face very real dangers when institutionally housed with men or made to use segregated facilities according to their birth sex.

Nevertheless, bathroom-related fearmongering has been the cause of several petitions and campaigns to kill trans* human rights legislation in North America.  It has also started to spawn draconian bathroom-policing bills (some of which ignore the actual genital status of the person, even though genitals are allegedly the rationale for the law):

“Building managers who “repeatedly allow” trans people to use the bathroom that accords with their gender identity would, however, face up to two years in jail and a maximum $10,000 fine under the proposed law.

“… If passed, the law could tighten how Texas defines gender, not only singling out transgender people, but those who have chromosomes that don’t fit the strict definition laid out in the bill, like intersex individuals. The bill reads:

” For the purpose of this section, the gender of an individual is the gender established at the individual’s birth or the gender established by the individual’s chromosomes. A male is an individual with at least one X chromosome and at least one Y chromosome, and a female is an individual with at least one X chromosome and no Y chromosomes. If the individual’s gender established at the individual’s birth is not the same as the individual’s gender established by the individual’s chromosomes, the individual’s gender established by the individual’s chromosomes controls under this section…”

Plett’s reasoning essentializes trans* women as being “biological males” (“… and I will use ‘men’ because I believe they are biological men — ‘transgender,’ but biologically, they are men”), and asserts that they are inherently a threat to cis* (non-trans*) women.  When it was pointed out that his amendment would require trans* men to use womens’ facilities, Plett appeared indifferent, and he later referred to a young trans* man as “she.”  Plett added that he believed his amendment would allow “separate but equal treatment.”

Bill C-279 would affect only areas under federal jurisdiction, such as federal facilities, the Armed Forces, federal agencies, and First Nations reserves.  But it had been seen as a potentially important symbol of human rights protection to have specific federal inclusion.  Canadian human rights commissions consider trans* people written into legislation, but without explicit inclusion, there remains a possibility of an overturn in court precedent (where application is not as certain).  Meanwhile, companies that take direction from federal legislation continue to not see a need to develop policies for trans* employees.

The Northwest Territories was the first Canadian jurisdiction to pass trans-inclusive legislation, in 2002.  Ontario, Manitoba, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, and Saskatchewan all have provincial protections.  In British Columbia, a similar bill, M-211, has been blocked by B.C. Liberals, who refuse to allow it to face a vote or discussion.

Former Member of Parliament Bill Siksay first introduced a trans* human rights bill in 2005, and continued to reintroduce it in every Parliamentary session, until it eventually passed in the House of Commons. However, it was awaiting ratification in the Senate when a federal election was called, which killed the bill.  In 2011, Siksay left federal politics, and Randall Garrison reintroduced it as C-279.  In 2012, many trans* people stopped campaigning for the bill when the characteristic of gender expression was deleted from the bill, and a definition of gender identity was added.

(A version of this article also appears at Rabble.ca and The Bilerico Project)

Leelah Alcorn’s Suicide, Parents’ Rights… and Kids’ Rights.

On Sunday, December 28th, 17-year-old trans* Ohio teenager committed suicide by stepping in front of a tractor-trailer on the interstate.  She was killed instantly.

Her tragedy says something profound which has been almost completely missed in the discussion about LGBT-inclusive education and Gay-Straight Alliances (GSAs) currently wafting across Canada.

Before Leelah Alcorn’s death, she posted a suicide note online.  Some of the links to it are no longer working, but the text is archived at Slate.  In it, she relates a heartbreaking story of a kid who learned what “transgender” meant at the age of 14, despite having always known in her heart that she needed to live as a young woman.  [This I can strongly relate to, having not heard anything about trans* people until I was about the same age or slightly older.  It was an age before Internet.  I wept for days at the realization that there was actually a word for it — until then, I thought I was the only one, and that it was a character fault.]  On telling her parents, they called it a phase, said it was impossible (that “God doesn’t make mistakes”), and taking her to Christian therapists, who told her that she “was selfish and wrong and… should look to God for help.”  The situation grew worse:

“So they took me out of public school, took away my laptop and phone, and forbid me of getting on any sort of social media, completely isolating me from my friends. This was probably the part of my life when I was the most depressed, and I’m surprised I didn’t kill myself. I was completely alone for 5 months. No friends, no support, no love. Just my parent’s disappointment and the cruelty of loneliness…”

She felt like everything was closing in on her: her social isolation, the hopelessness of having to afford a mass of expenses (college, moving away from home and transition costs including surgery), what she perceived to be an insurmountable challenge of being too masculinized by hormones by the time she can start transition at 18 (a tragic misconception, as transition outlooks are still usually extremely good when transitioning that young), the fear of living a loveless life, and more.

Since her suicide, her parents have received a wave of anger from trans* people, and responded by claiming to have loved their child “unconditionally,” while still adamantly invalidating her and misgendering her:

“We don’t support that, religiously … But we told him that we loved him unconditionally. We loved him no matter what. I loved my son. People need to know that I loved him. He was a good kid, a good boy.”

The media coverage has turned into a circus, with various publications conflicting and editorializing over whether Leelah should be acknowledged as the person she understood herself to be or deliberately invalidated as per the family’s wishes.  Meanwhile, the religious right response has been unsurprisingly vicious and negative, blaming trans* people for Leelah’s suicide, and that the real solution should have been more antagonism, reparative therapy, and invalidation until it somehow eventually overwhelmed her and somehow (inexplicably) made her feel better:

“The attitude that says we should be able to be what we want, no matter what, is dangerous. This Abby is complicit in her friend’s death. She encouraged wrong behavior. This wrong behavior created bad feelings or depression. This furthered Joshua’s depression and desire to make himself happy.

“Rather than saying gently and calmly that his problem was not that he was a girl trapped in a boy’s body, they should have said. “You’re a boy, in a boy’s body.” The confusion is that you are trying to be something that you are not meant to be, you’re not a girl…”

Others are calling for all trans* people to go “truck” themselves (i.e. commit suicide in the same fashion that Leelah did).

Since her suicide, vigils for Leelah have taken place across North America, including one in Winnipeg.  Trans* activists are calling for a change in the discussion about the well-being of trans* youth.

With the extensive (and puzzling) debate over LGBT-inclusive education and Gay-Straight Alliances (GSAs) in several provinces across Canada, there has been a considerable amount of ink spilled over a parent’s rights to deny their children information about sexual orientation and gender identity, and to deny the acceptance, validation and support of gay, bi- or trans* kids in schools as a matter of religious freedom of conscience.

And yet no one is talking about LGBT teens’ rights to acceptance, enfranchisement, freedom from harassment, and to learn about who they are.  Or the right of non-queer teens to learn what society now largely knows to be truth about their peers.

In Alberta, the debate has even gone as far as enfranchising parents’ rights in a way that supersedes the rights of children and teens, in law.

Canadian school boards have begun recognizing the need to enfranchise lesbian, gay, bisexual and trans* kids.  But will politicians and media do the same before Leelah Alcorn’s tragedy is repeated north of the 49th parallel?

Paths of Pain, and the Ownership of Language.

Marc Maron recently ran a follow-up interview with fellow comedian Todd Glass, who had come out as gay on Marc’s podcast, WTF.  Marc’s podcast has often been strikingly introspective, and a moment came up that epitomized this. Glass started talking about language, the way that words can be weaponized, and the way he’s experienced this since coming out as gay:

(at 20:12) GLASS: But for me, I want to keep evolving.  I don’t want to be the type of person who drops one word out of my act and then the other word and then goes ‘oh my god, when’s it gonna stop? I’m done evolving!’  Don’t f***ing brag about that…  ‘Cause… you know, the reason those words — I realize it with the word ‘gay’ — the reason people think it’s not bad is they don’t see the path of pain where it leads back to…

That sticks out in my mind as important, as it speaks almost directly to the controversy that happened when Marc interviewed RuPaul Charles in the previous podcast, as part of RuPaul’s ongoing string of controversies over language:

(at 1:16:41) RUPAUL: No no no, it’s not the transsexual community who’s saying that. These are fringe people who are looking for storylines to strengthen their identity as victims. That is what we’re dealing with.  It’s not the trans community, because most people who are trans have been through hell and high water and they know — they’ve looked behind the curtain at Oz and went, ‘Oh, this is all a f***ing joke.  But, some people haven’t, and they’ve used their victimhood to create a situation…  If your idea of happiness has to do with someone else changing what they say, what they do, you are in for a f***ing hard-ass road.  Because the ego would have you think…  that is a trap that the ego will have you… it gets you every time…  My 32-year career speaks for itself.  I dance to a different drummer.  I believe that everybody, you can be whatever the hell you wanna be. I ain’t stopping you.  But don’t you dare tell me what I can do or say. It’s just words.  Yeah, words [mocking] ‘you… your words hurt me…’ You know what? Bitch, you need to get stronger.  You really do, because you know what, if you’re upset by something I said, you have bigger problems than you think.  I’m telling you this….

The sad thing about that is, earlier in the interview, RuPaul had some interesting but challenging things to say about building social movements around identity and about deconstructing “the matrix” of social illusions that people have.  While I don’t really agree with him on all points, it does provoke some thought and provide some insight about where he’s coming from.  “Identity” is a vague enough concept that it deserves to be questioned and picked apart from time to time, and that’s what RuPaul does.

Of course, language is also the means that people use to become self-aware, communicate that self to the world, and build common cause… so your mileage on that will vary.

The Spirit of It

Now, I don’t like playing word police.  I’ve done it a few times, and I recognize the importance of words and the evolution of language.  The effect that has on both forming social movements and shoring up one’s sense of self-respect (if not pride) is admittedly significant.  But the bigger issue is often the spirit with which something is said or intended.  So my overall thoughts on language are mixed.

Sometimes we only have the language we’re given.  We’ve only relatively recently coined “cisgender” and “cissexual” (words to mean “not transgender” and “not transsexual,” sort of like “heterosexual” is to “homosexual”) because using “normal” drips with judgment and condemnation, and “genetic” is not scientifically accurate or verifiable.

We still fight over terms like transgender, transsexual, trans* (with or without the asterisk), etc.  Depending on where you are, sometimes you need to be keeping a bloody scorecard.  In one group, people prefer “transgender” because it doesn’t imply that being trans is about sex; another group will prefer “transsexual” because it’s always been the term they knew, or because it is about changing the physical sex, for them; yet another group will totally reject “transsexual” because it was coined by the medical community and they want to reject the mental health stigma or the clinical abuses that people have faced in the years prior.

The words changed over time, too… it wasn’t that long ago that people embraced “tranny,” and sometimes even accepted the word “transvestite,” however inappropriate that might have been — either because they didn’t realize the implications of the word, or because it was the only label available in a drop-down menu, in one of those rare spaces we were welcome, at the time.  Although there’s a relatively consistent aversion to “tranny” and “shemale” now (aside from a few people who still use them to describe themselves), it hasn’t always been that way, and the labels each come with a plethora of nuances, and occasional people who embrace the terms for themselves.

I tend to prefer trans (or trans*), because it’s open-ended.  It’s supposed to be an adjective, not a straitjacket.  Personally, I’d hate to ever find myself parsing a descriptor so narrowly and precisely that it starts to define me, rather than the other way around.  But I really don’t blame people for getting a little peeved about there being a minefield of language.

And if you’re thinking that this kind of fight over language is just particular to trans* people, then keep in mind that decades later, LGBT people still have divisions over whether they want to retake or banish the word “queer.”  Divides exist in other communities, as well, such as the split over the terms “First Nations,” “Native,” “Indigenous,” “Aboriginal,” “Native American,” etc.:

“But lately, I question if we are empowered or disempowered by this term and this assigned title –and if it permeates and weakens our identity.

“Not the term in itself, but by all matters, machinery, and meaning (explicitly and implicitly) implied by the assignment of the title onto us by Canada, the acceptance of it on our part, and all that comes with such uncritical acceptance and internalization…”

…is a passage that almost looks as though it were plucked right out of an article on trans* -related language, doesn’t it?

Words are important to us.  They’re inevitably used to define us, so it’s natural for us to want to be the ones who determine what those words say.  Except that we can’t.  Abolishing a word isn’t going to erase the pain that went with it, nor will it change the attitudes of the people who wield the word as a weapon.

Because there can indeed be a path of pain associated with “tranny.”  When it was the language used whenever a person is attacked, disrespected, disowned, denied services, threatened, refused entry, humiliated, or more, it becomes a foci of microaggression: where any one incident can seem surmountable or even trivial, but when multiplied by thousands, it becomes monumental.  Perhaps RuPaul had the luck or privilege to escape a lot of that (he is, after all, able to take off the wig, makeup and sequins when it gets to be too much), or perhaps he found the rare strength to power through it all without it eroding his spirit — but trans* people at large aren’t always able to do the same.  Words have power.

What we can do in the discussion about language is assert our right to be respected, and to be dignified as the people we say we are. We are only ever entitled to speak for ourselves.  We never were empowered to label everyone who’s trans*.

RuPaul, of course, is speaking for himself, and that’s cool.  The whole word debate arises because he is speaking for himself, but trans* people — and just about everyone else, for that matter — assume that he’s labeling trans* people.  If there were a way to achieve clarity on this, it wouldn’t matter what terminology he embraces and throws around.

But where RuPaul Charles derails is not from pointing out the inevitable failure of communal self-identification (because we are not some homogenous collective Borg hive — I get that), but by invalidating those who are targeted by said language, and validating the ways the words are used to target them.  “Grow up, get a spine” is not helpful, and minimizes another’s pain.  While we’re busy trying to turn that “victimhood” into empowerment, RuPaul is there to act like there wouldn’t be any pain at all, if we only had more spine.  That’s not helpful, and it’s quite inelegant, at that.

The language debate became an argument over the willingness to respect.  Does one surrender the use of the word out of a willingness to listen to what someone has to say about who they are, what they need and what their life experiences mean… or do they instead extend a big middle finger to them and declare that they know better, and that (whether anyone likes it or not) they’re appointing yourself the arbiter of another person’s reality?

Not One-Sided

But that respect goes both ways.

Something that always bothered me about this discussion was that often it became an angry shouting match about who trans* people are not.  Most often, this has to do with people distancing themselves from drag queens.  Now, I’ll admit, it’s difficult to change the impression that the public has, when society routinely conflates trans* with drag.  Virtually every newspaper story you see on trans* issues is illustrated with a photo of drag queens in a Pride parade (okay to be fair, some are finally starting to know the difference).

Drag isn’t the same thing as trans*, although some trans* people find that a safe space to explore and / or come out, so there can be some overlap.  Trans* is different — not better, but different.  Clarity would be nice.  But what happens is that instead of calling for clarity, people slip into the same bigoted stereotypes and assumptions about others that they don’t want applied to themselves.  Denigrating someone else in order to elevate oneself is very low.

The new argument is that “drag is trans* blackface.”  But drag was never meant to lampoon trans* people — it lampoons gender itself, both masculinity and femininity simultaneously.  It’s quite likely that it’s becoming an art that’s past its time, because of the effect it has on intersecting groups and issues (i.e. that regardless of the original intent, in current context, trans* people are lampooned by circumstance), and the buttons that it now pushes.  But I’m not going to start that discussion here, nor will I malign the integrity and motives of the people who engage in drag… some of whom set out to challenge gender as much as anyone who is genderqueer, but simply took a different avenue and during a different time.  It’s a conversation that’s looming, but not one that trans* people can have arbitrarily and unilaterally — at least not if you believe in decolonizing activism.

There’s another group of people that are often taken issue with, in the discussion about the word “tranny.”

While composing this article, I ended up getting into a heated exchange in probably the worst venue to have an intelligent conversation — Facebook.  One follower had been pushing me to write on the subject, and decided to elaborate on why they felt words like “tranny” are offensive: she associated the word with the porn industry and prostitution, and didn’t like the implication of being associated with such people… “sleazy,” “freakish” and “deluded” (because apparently, doing sex work means that one must not be really trans*) people.

People like me.

I don’t do sex work now, mind you. I did at two points in my life, though — once when I first left home at 18, and again later when I transitioned and was more or less dropped off the payroll by my employer.  I was outted on this point a couple years ago and haven’t written about it much here — but I’ve been having to discuss it a lot more recently because of legislative issues in Canada. I’m not proud of it, but I’m not ashamed of it, either.

I didn’t use words like “tranny” or “shemale” then, mind you, unless it was part of a date’s fantasy (at which point one inevitably has to put up with it).  And currently, things are fading far enough into the rear-view mirror that it would make as much sense to call me a tranny as it would to call me a soup can.  So I have no vested interest in defending the words themselves.

But the words used are no longer relevant, because the question of intent goes both ways, too.  Because what I was really being told was that my conversant’s pain was from having to be associated with what they felt was a lesser form of person.

Your path of pain does not give you entitlement to create more pain by bulldozing through me.

And from this point forward, I am no longer interested in this argument about language — or at least not until we have a good, solid discussion about intent.  Because while I recognize that there is genuinely a path of pain that some people have regarding the word “tranny,” sometimes it’s really about disdain.

(Crossposted to The Bilerico Project)

Google Trends on “Transgender”

Posted for discussion and interest value.

Out of curiosity, I plunked the word “transgender” into Google Trends.  It’s not my terminology of choice, but it’s what most people use and what the general public is most likely to search for.  Here’s what I got:

transgoogletrends01

The numbers aren’t an exact value of something, but a comparative value versus the highest peak on record, which is apparently right now.  Or as Google Trends puts it:

Numbers represent search interest relative to the highest point on the chart. If at most 10% of searches for the given region and time frame were for “pizza,” we’d consider this 100. This doesn’t convey absolute search volume. Learn more

I don’t know if there were other stories that occurred during the same months of those peaks and contributing to the results — it’s possible, I’ve only noted what Google flagged as the top search item.

A few more charts:

transgoogletrends02

and

transgoogletrends03

Presented without commentary, in case anyone is curious.

“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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