Correctional Service Canada recently announced a new placement policy for transgender detainees. Under this new policy, trans people will generally be allowed placement in federal penitentiaries corresponding to their gender identity.
This change has been well received in trans communities. The previous policy required placement based on genitalia, which was particularly harmful for trans women who typically found themselves in male prisons. Only 12% of trans women have had a vaginoplasty according to large-scale data from the United States and between 12% and 34% have no interest in ever undergoing that surgery. Placement based on genitals doomed almost all trans people to the wrong penitentiaries.
Ontario provincial prisons have been placing inmates on the basis of gender identity, much like the new federal policy, since 2016 following an settlement with Avery Edison, a trans woman whose incarceration in a men’s jail had made the headlines. British-Columbia also followed suit.
In Quebec, however, no equivalent policy exists. Instead, trans prisoners’ placement is determined on a case-by-case basis. This approach only bolsters the discretionary power of Ministry of Public Security employees, who rarely have any familiarity with trans realities. Placement on a case-by-case basis is only marginally better than placement based on genitals. In practice, it tends to the same result. It is also disproportionately risky for trans migrants who cannot change their name or gender marker on their birth certificate without being citizens, a grim requirement that is unique to Quebec. Official documents are often given considerable weight by people unacquainted with trans realities, with case-by-case placement more likely to place trans women in women’s prisons if they have access to official documentation and well-paid lawyers.
In men’s prisons, trans women are prey to harassment, discrimination, and violence. Many fear for their lives. Bianca, in a U.S. report on trans people’s experiences in prison, recounts: “My life is constantly threatened. I just want to get out of here alive.” She further reported being repeatedly raped and beaten, including by guards. Daily harassment and discrimination also proves hard.
Protective custody — which involves separation from other inmates — isn’t a guarantee against violence, and sufficient protection often comes at the cost of inordinate isolation, although solitary confinement was recently declared unconstitutional by the British Columbia Supreme Court.
Insofar as trans women continue being detained in men’s prisons under that policy, the case-by-case approach is discriminatory and exposes trans women to a degree of violence that is far greater than that experienced by cisgender — not transgender — inmates. I would even go so far as to suggest that it may be an unconstitutional violation of the right to freedom from cruel and unusual treatment. Perhaps this realisation motivated British Columbia and Ontario’s new placement policy.
The mismatch between provincial and federal policy in Quebec leads to the absurd result of favouring sentences of two years or longer. A trans woman might reasonably prefer being given a two years sentence instead of a one year sentence since sentences of two years or more fall under the jurisdiction of Correctional Service Canada.
Where do I go?
One of the major lacunas of the federal policy is its overlooking of non-binary people, whose gender identity is neither exclusively female nor male. Gender identity is positioned as the basis for placement, but penitentiaries remain divided into men and women’s only. Since non-binary people’s existence is indiscernible in the structure of prison segregation, the federal policy gives no clear answer to the question: where would I go if I were incarcerated?
Some people might suggest housing non-binary people based on genitals. The underlying idea is that non-binary people aren’t “different enough” from their gender assigned at birth to warrant placement based on gender.
Though this position might seem reasonable to someone unacquainted with non-binary realities, it quickly falls apart upon further consideration.
Take me as an example. I’m non-binary. If you ask me what my gender is, I don’t answer either “man” or “woman” lest I want to be left alone. When I was born, the doctor probably proclaimed: “It’s a boy!” Of course, he didn’t ask for my opinion…
Based on that information, someone might think I’m perceived as a cisgender man in everyday life. They would be wrong: I am typically perceived as a cisgender woman. When I tell people that I’m trans, they tend to assume I am a trans woman, followed by allusions to how they “never would’ve guessed” and how I’m “so beautiful for a trans [sic]”. But non-binary people are also trans, as their gender identity does not correspond to the gender they were assigned at birth.
In my everyday life, I experience the same misogyny and transmisogyny that women experience. Why, then, shouldn’t I get to be in women’s prisons? I wouldn’t be any less at risk in a men’s prison just because I’m non-binary. Nor would I be any less at risk in a men’s prison if I were generally read as a trans woman instead of a cis one.
The inclusion of non-binary people poses a major challenge to our governmental institutions which remain structured around a binary conception of gender. It also poses a challenge to feminist communities which often only make room for women in their spaces and mandates. Given that non-binary people frequently experience misogyny and transmisogyny atop of being oppressed because of their gender, it is necessary to rethink access to gendered spaces. We need spaces in which to take a break from misogyny and transmisogyny. We need places where we can get support tailored to our needs. We need terrain which can serve as fertile ground for the seeds of a radical feminist consciousness predicated on solidarity and resistance. But we must not do so by reproducing the very same motifs of gendered exclusion which we are fighting against. Non-binary people don’t have spaces: sharing is caring.
More than reforms
Prisons are sites of inordinate violence for transfeminine people. The new federal policy is taking a step in alleviating this violence. Provincial policies need to follow suit and both provinces and the federal government must expand their policies to assist non-binary people.
Immigration detention, that imperialist monstrosity, continues to house transfeminine people alongside men. Detention in those centres can be indefinite even if no crime has been proven or committed. Any serious attempt at a reform needs to deal with this type of imprisonment which, appallingly, has yet to be declared unconstitutional — the roots of racism run deep.
But despite all I have said, we cannot satisfy ourselves with mere reform. No reform, no policy can address the two issues which lie at the heart of carceral violence against trans people: the overincarceration of trans people and the inherent violence of the prison-industrial complex. When thinking about trans incarceration, we must address the social factors underlying overincarceration and we must begin dreaming of a world without prisons. The question of overincarceration requires us to engage with issues of poverty, discrimination, and police harassment. Many trans women, especially trans women of colour, are jailed for resisting abusive arrest or for being involved in the sex trade. The overincarceration of trans people is intimately connected to transantagonism, racism, police violence, the oppression of sex workers, and the ills of capitalism. As for prison abolitionism, I leave no answer but this: to ask the question is to take the first step toward the solution.