Morgane Oger Foundation and LEAF submission to Correctional Service Canada

In their December 2020 letter to Correctional Service Canada, the Morgane Oger Foundation and the Women’s Legal Education and Action Fund (LEAF), supported by Egale Canada and the Community-Based Research Centre, provided comments to Correctional Service Canada (CSC) on the CSC’s draft Commissioner’s Directive CD-100, “Management of Offenders with Gender Identity or Expression Considerations”. In their letter, the organizations strongly urged CSC not to implement the Directive as drafted, because it is rooted in transphobic views of sex and gender that have caused significant harm to Transgender, Two-Spirit, non-binary, and gender-diverse individuals, both in penal contexts and in Canadian society more broadly.

Rather than implement the Directive, the Morgane Oger Foundation and LEAF recommended that CSC draft a new directive in consultation with Transgender, Two-Spirit, non-binary, and gender-diverse  individuals, as well as with gender-equity seeking organizations. Today, the organizations remind CSC that any policies it develops must respect human rights law.

In 2017, Parliament passed legislation stating that federally-regulated government bodies are prohibited from discriminating on the basis of “gender identity or expression” . CSC is now required to uphold this protection for everyone in Canada. The Morgane Oger Foundation and LEAF agree with CSC that there is not yet sufficient clarity within CSC as to how to address incarcerated individuals’ accommodation requests on the basis of gender identity or expression. The organizations welcome CSC’s work to update its policies to improve conditions for everyone who requires accommodation on the basis of gender identity or expression while fulfilling the CSC core mission within the constraints of Canadian law. This update is an overdue initiative that advocates had asked for for years.

Unfortunately, the draft Directive that CSC proposed represented a serious step backwards for Transgender, Two-Spirit, non-binary, and gender-diverse persons under CSC supervision.

LEAF and the Morgane Oger Foundation sincerely hope that any new directive officially adopted by CSC responds to the concerns that the organizations expressed in our letter, and in particular:

1. “Biological attributes” should not be privileged in the initial classification of persons with gender identity or expression considerations. Doing so is inconsistent with Correctional Service Canada’s human rights obligations.
2. No one should be subject to the fear of sanctions for choosing if, when, or to whom they disclose any attribute of their biology or anatomy.
3. Correctional Service Canada must not impose an additional and more onerous safety review for Transgender, Two-Spirit, and non-binary persons than it does on others.

A full copy of the letter in English is accessible here.