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Barbara Kay: Without exemptions to protect women in prison, gender identity laws are unconstitutional

Transwomen with a history of violent crime are putting female inmates' security at risk
Canada’s federal prisons for women were once like men’s: cells, high security, guards with guns. But following the suicides of seven female inmates between 1989 and 1991 (all but one Indigenous), inquiries led to the Task Force on Federally Sentenced Women, culminating in a report, Creating Choices. As a result, six regional women’s prisons were created whose infrastructure and policies reflected a more enlightened understanding of this demographic.

Most female prisoners are incarcerated for non-violent crimes. Most have experienced physical and/or sexual abuse. Medium-security women live in houses, locked only overnight. Male guards are not permitted in women’s intimate spaces, like bathrooms and showers. Guards do not carry guns. Protocol is trauma-informed and minimally restrictive. Protocols can be this much more relaxed, because female prisoners present dramatically fewer security risks than male prisoners.

Barbara Kay: Without exemptions to protect women in prison, gender identity laws are unconstitutional Back to video Since June 2017, Canada’s Human Rights Act has prohibited discrimination against gender identity and gender expression. Correctional Service Canada’s policy had been to approve transfer to a women’s prison of a male inmate identifying as a woman only after bottom surgery. Shortly after Bill C-16 was passed, a simple affirmation of identity as a woman — no surgery, no hormones, just a pronoun change — became sufficient to request, and usually get, a transfer.

Gender identity has become a sacrosanct principle in Canada, with trans inclusivity privileged over sex-based security claims. Transwomen with a history of violent crime are not disqualified for transfer, even though we have no evidence that an individual’s psychopathology disappears with a change of gender identity. A serial pedophile; a serial sex offender; a contract killer; a child killer; a murderer: All have been approved for Canadian women’s prisons or halfway houses.

Brad Hunter, a reporter with the Toronto Sun, has written up several of these cases. Steven “Sam” Mehlenbacher, for example, was convicted 16 times for bank robbery. Having escaped from more than one halfway house, Mehlenbacher was classified as a dangerous offender by the Toronto Police. After declaring a new gender identity, Mehlenbacher was moved to the Edmonton Institution for Women, and from there to Kitchener’s Grand Valley Institute in May 2019. Mehlenbacher was charged with sexual assault in March 2020.

The government’s rationale for its policy is that transwomen in men’s prisons are at increased risk for harm. At a 2019 Senate committee hearing on human rights related to imprisonment, Dr. Aaron Devor, Inaugural Chair in Transgender Studies at the University of Victoria, adduced statistics attesting to trans inmates’ high rates of “sexual victimization” (which may include anything from body-shaming insults to sexual assault). He spoke passionately of the need to accommodate transwomen in the prison system on the ground of their right to safety.

But Gearóid Ó Loingsigh, an international expert/consultant on prisons, questions the trend to trans exceptionalism in prison reforms. He argues there are many groups at elevated risk for harm in prison populations: gays, certain ethnic groups and (especially) those with mental or physical disabilities, none of whom may request transfer to women’s prisons. Loingsigh writes: “The trans are not the most vulnerable collective, not by a long shot, and … some predators self-identify as women with the aim of being transferred to women’s wings.”

Indeed, the U.K. Ministry of Justice has acknowledged that since 2010, seven out of the 124 sexual assaults against females in custody — or 5.6 per cent — have been perpetrated by transwomen, who account for about one per cent of the prison population.

Requests for transfers to women prisons are escalating in the U.K. and the U.S. The L.A. Times reported last week that the California prison system has received 261 applications for transfer since Jan. 1 from transgender and non-binary inmates. Inmates at Central California Women’s Facility told the Times that staff had warned them of potential sexual violence from trans imposters.

Clearly a certain percentage of transfers are gaming the system. Even trans advocate Aaron Devor admitted in his senate testimony, “(T)here are people who will take advantage of the system and show up and say … I’ll just claim I’m a woman.’” Consequently, we now have an unfair prison situation in which both transmen and transwomen are housed with women for protection from violent men, their right to security trumping the right to security of the women for whom these prisons exist.

I spoke with Toronto-based Heather Mason, a vocal advocate for the rights of women in prison. Mason is herself a former GVI inmate. Her lived experience with women who are triggered by male bodies in their intimate spaces informs her activism, which she conducts under the auspices of caWsbar (Canadian Women’s Sex-based Rights). Mason has been subjected to accusations of transphobia by hostile activists.

Worse — and yet another indicator of the power trans activists have to control the narrative on any issue where gender-expression and women’s sex-based rights collide — a story on a March protest at GVI, published in Kitchener’s, featuring Mason’s arguments against transfers from men’s prisons to GVI, was “unpublished” a few weeks later following pressure from activists, Mason says. The outlet gave Mason a now-familiar cancel-culture excuse: the article failed to “meet our journalistic standards for balance, and its potential negative impact was not fully considered.”

CaWsbar’s position — and mine — is that gender identity legislation is in irresolvable conflict with women’s Charter rights to security of the person and freedom from discrimination on the basis of sex. Without exemptions to protect women in vulnerable spaces, both federal and provincial gender identity laws are unconstitutional.

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