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| John L. Hill |
Under the Ontario Human Rights Code, citizens are protected from discrimination and harassment because of gender identity and gender expression in, inter alia, employment, housing, facilities and services.
The Canadian Human Rights Act mimics the provincial protection at the federal level. By setting out this list of situations where one’s equality rights are protected, one would expect public attitudes would be well-settled favouring non-discrimination and equality. Indeed, Senate Bill 132, The Transgender Respect, Agency and Dignity Act that became effective in 2021 allows incarcerated transgender, non-binary and intersex people to request to be housed and searched in a manner consistent with their gender identity.
Is all this legislation supposedly protecting the rights of transgender inmates consistent with evolving public attitudes or are our legislatures ahead of popular opinion in this area of equality? A recent survey conducted by the Macdonald-Laurier Institute released Feb. 2, 2023, shows the Canadian public is not as supportive of equality in the placement and treatment of transgender inmates as a reading of our laws would have us believe.
The survey revealed that about 80 per cent of Canadians believe it is important to maintain same-sex housing of prisoners by segregating male and female inmates. Only one in five said such separation was unimportant.
Even though there was slight majority support for believing that male-bodied inmates who identify as women should have some form of accommodation, about 70 per cent do not want to see such people housed with women.
The poll also showed that attitudes were fairly consistent across Canada when variables such as region, education level and income were considered. The only significant discrepancy was in the group of Canadians 35 years of age and older. That group was substantially more opposed to housing male-bodied inmates who identify as women with female inmates.
The Macdonald-Laurier Institute findings are significant because the conclusions uncovered demonstrate that it is unlikely we will see public support for transgender inmates claiming abusive treatment. One inmate has recently complained during a telephone call with me the extent that it is so much more difficult to do time in the federal penitentiary system. This male-bodied inmate who identifies as a woman was treated brutally by female inmates while serving time in a female penitentiary. Once transferred to a male institution, she finds it impossible to assimilate with male inmates, and she becomes the constant butt of insults and discriminatory treatment by both the general inmate population and correctional staff.
Complaints to the Human Rights Commission, she tells me, have gone unanswered. She rightly asks why the punishment the court has ordered her to serve must be more severe for her than the time served by inmates who identify with the gender indicated at birth.
Is it a case that we need special accommodation for inmates who because of gender identity just don’t fit in with the general population? If so, how can such accommodation be made especially in times of fiscal restraint?
Laws that pretend to be supportive of equality are simply hypocritical unless actions are taken to enforce those laws. The findings of the Macdonald Laurier Institute is consistent with an earlier poll where the finding was that Canadians do not support males who identify as females participating as females in sporting events. The findings have led the institute’s director of domestic policy, Aaron Wudrick, to state, “Canadians clearly believe that in both sport and prison accommodation, the interests of transgender people cannot trump the rights of women to safety and fairness.”
According to Wudrick, the laws in Canada do not represent the will of most Canadians. The Macdonald-Laurier Institute is a conservative, libertarian Ottawa-based think tank. The views expressed in its recent polling, if Wudrick is to be interpreted correctly, should see a repeal of the equality provisions of our legislation, presumably to make the situation safer for women. Maybe an alternative view is to accept the results of the poll and simply admit our laws have a way to go before public attitudes change to make the world a safer place for our transgender colleagues.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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