Prison building behind a fence. Photo: Morgane Oger
The use of a prohibited ground of discrimination to justify discriminatory action against a person is not only wrongful, but the courts have also ruled that it is also prohibited.
OTTAWA, Ontario (RPWEB)
January 18, 2022
(For the French version, click here)
In their December 2020 letter to the Correctional Service of Canada, the Morgane Oger Foundation and the Women’s Legal Education and Action Fund (FAEL), supported by Egale Canada and the Community Research Center, provided comments to the Correctional Service of Canada (CSC) on 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 written, as it is rooted in transphobic views about sex and gender that have caused significant harm to transgender people, two-spirited, non-binary and gender-diverse, both in criminal contexts and in Canadian society at large.
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 people, as well as organizations seeking the gender equity. Today, agencies are reminding CSC that any policy it develops must respect human rights.
In 2017, Parliament passed a law stating that federally regulated government agencies are prohibited from discriminating on the basis of “gender identity or expression”. CSC is now required to maintain this protection for everyone in Canada. The Morgane Oger Foundation and the LEAF agree with the CSC that there is not yet enough clarity within the CSC as to how to deal with accommodation requests from incarcerated persons on the basis of identity or gender expression. The organizations commend CSC’s work to update its policies to improve conditions for anyone requiring accommodation on the basis of gender identity or expression while fulfilling CSC’s core mission in the limits of Canadian law. This update is an overdue initiative that advocates have been asking for for years.
Unfortunately, CSC’s proposed directive represented a serious step backwards for transgender, two-spirit, non-binary, and gender-diverse people under CSC’s supervision.
LEAF and the Morgane Oger Foundation sincerely hope that any new guidance formally adopted by CSC will address the concerns expressed by organizations in our letter, including:
1. “Biological attributes” should not be favored in the initial classification of people with gender identity or expression considerations. This is contrary to the Correctional Service of Canada’s human rights obligations.
2. No one should be subject to fear of punishment for choosing whether, when or to whom they disclose any attribute of their biology or anatomy.
3. Correctional Service Canada should not impose additional and more onerous security screening for transgender, Two-Spirit and non-binary people than it does for others.
“Supporting trans women’s rights is a key part of ensuring that all women are protected from discrimination,” said Pam Hrick, Executive Director and General Counsel of LEAF. “The right to live according to one’s gender identity must be recognized in correctional facilities, which are bound by the same human rights laws as other government agencies.
“The use of a prohibited ground of discrimination to justify discriminatory measures against a person is not only wrong, but the courts have also ruled that it is prohibited,” said Morgane Oger, director and lead lawyer at the human rights tribunal of the Morgane Oger Foundation. “A prohibited ground of discrimination must not be invoked to justify the refusal to accommodate a personal characteristic protected by Canadian human rights legislation.
Share the article on social networks or by e-mail:
