Correctional Transgender Policy in Canada’s Federal Prison System

• Published date: 01 August 2024
• DOI: http://doi.org/10.1177/08874034241268986
• Author: Gillian Foley,Marcella Siqueira Cassiano,Rosemary Ricciardelli,James Gacek
• Date: 01 August 2024

https://doi.org/10.1177/08874034241268986

Criminal Justice Policy Review

2024, Vol. 35(4) 216 –240

© The Author(s) 2024

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DOI: 10.1177/08874034241268986

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Article

Correctional Transgender

Policy in Canada’s Federal

Prison System

Gillian Foley1, Marcella Siqueira Cassiano2,

Rosemary Ricciardelli1, and James Gacek3

Abstract

Since December 2017, Canada’s federal correctional system provides prisoners

the opportunity to be assigned to living units according to their self-identified

gender. Still organized around sex, conceptually and spatially, prison policies and

procedures surrounding transgender prisoners require navigation to adhere to the

rights of all prisoners. Based on interviews conducted between October 2019 and

October 2021 with 74 correctional officers (COs) from the Canadian federal prison

system, we discuss how correctional officers view and operationalize Canada’s

transgender policy to understand its unintended consequences for both prisoners

and prison staff. Unintended consequences revolve around the potential risk for

prisoner victimization, prisoner pregnancy, lack of adequate housing, strip search

complications, officers’ fear of being labeled transphobic, and uncertainty and

discretion; all having effects on staff wellness. The policy, although well-intended,

may potentially compromise prisoner safety, making correctional work even more

stressful.

Keywords

transgender prisoners, prison placement policies, correctional officers, prisoner

victimization, prisoner vulnerability

1Memorial University of Newfoundland, St. John’s, Canada

2The University of Winnipeg, Manitoba, Canada

3University of Regina, Saskatchewan, Canada

Corresponding Author:

Rosemary Ricciardelli, Memorial University of Newfoundland, St. John’s, Newfoundland, Canada.

Email: rricciardell@mun.ca

1268986CJPXXX10.1177/08874034241268986Criminal Justice Policy Review XX(X)Foley et al.

research-article2024

Foley et al. 217

Introduction

Transgender prisoners are found to face substantially higher rates of discrimination

and threats to both their well-being and safety compared to the general prison popu-

lation (Brömdal et al., 2019; Zinger, 2019). Often, transgender prisoners manage dis-

comfort or distress emerging from the mismatch between their biological sex and

gender identity and vulnerabilities that result from a history of abuse and violence.

Transgender prisoners have unique needs that involve mental health support, physical

health treatment, and medical privacy (McCauley et al., 2018; National Center for

Transgender Equality, 2018). Thus, policies accommodating transgender prisoners

have become a necessity to ensure their well-being and rehabilitation. In this article,

we discuss Canada’s federal prison placement policy for transgender prisoners

(Correctional Service Canada [CSC], 2017b). Canada’s prison placement policy,

Interim Policy Bulletin 584—Bill C-16 (Gender Identity or Expression), hereafter

referred to as the “transgender policy,” includes several guidelines created to protect

transgender prisoners from gender and sexual discrimination by giving transgender

prisoners the right to choose whether they want to be placed in prison according to

their self-identified gender or sex assigned at birth (CSC, 2017b). In these discussions,

sex refers to a combination of innate biological characteristics (e.g., chromosomes and

genitalia) that range from immutable to very changeable. Meanwhile, gender refers to

socially constructed roles, behaviors, expressions, and identities. With this lens, the

policy also regulates not just sex and gender but numerous aspects of prison life, such

as strip search and sex reassignment surgery (now called gender-affirming surgery)

(CSC, 2017b; it is important to note that Commissioner’s Directive 100: Gender

Diverse Offenders has now replaced CSC’s (2017) Interim Policy, as discussed below).

Based on correctional officers’ (COs) accounts confirmed by media reports

(DiManno, 2020; Lourenco, 2022), the transgender policy leaves prisoners vulnerable

to violence and pregnancy, and raises stress levels among prison populations and staff.

Noteworthy, in prison, individual acts of violence can quickly spread and scale, com-

promising institutional security. Moreover, transgender women with male anatomy

can be harassed sexually by residents. The policy also seems to raise stress levels

among prison workers, particularly COs (Matychuk, 2019; Zinger, 2019).

As Mincke (2017, p. 236) indicates, human rights and prisons “were conceived in

the same epoch . . . but have always been in tension. Accordingly, thinkers and policy-

makers have constantly had to re-examine and consolidate the legitimacy of the latter

[with the former].” In effect, we are not suggesting that we reject the policy out of

hand, for it is a many-sided phenomenon; nonetheless, it may be premature to think

that key questions about transgender prisoner safety have been resolved with a policy

that, similarly to policies in the United States and Australia (Brömdal et al., 2023),

gives transgender prisoners a choice of where to be housed but no guarantee of a

safe environment. As a result, the existence of a transgender policy and potential

biases must be understood not only by those experiencing the policy but also by those

working in prison environments and how they experience implementing the policy

itself. Moreover, the context of viewpoint is necessary; indeed, as authors, we traverse