“Previously published by The Lawyer’s Daily, a division of LexisNexis Canada”.

A panel on transgender people and prisons took place during Halifax Pride, intended to help lawyers better serve trans clients remanded or sentenced to provincial custody in Nova Scotia and promote understanding of some issues trans people face in the prison system.

The panel focused on the implementation in 2017 of a Nova Scotia Correctional Services policy, which provides that trans and gender-variant people are to be placed in a women’s or men’s unit according to their gender identity or where they feel safest, regardless of their anatomy or the sex designation on their ID. The policy was developed in accordance with the Nova Scotia Human Rights Act, which prohibits discrimination on the basis of gender identity and expression. It changed Correctional Services’ previous practice of incarcerating trans people on the basis of genitalia.

The panel featured Nova Scotia Correctional Services’ manager of policy and program services, Jill McCarthy, and director John Scoville. Taylor, a young trans woman, spoke about her experience of incarceration in a Nova Scotia provincial prison, and Emma Halpern, executive director of the Elizabeth Fry Society of Mainland Nova Scotia, spoke about what the organization learned through supporting Taylor. Jack Townsend, civil litigation lawyer with the Nova Scotia Department of Justice, moderated the panel.

McCarthy drafted the policy but explained that it was developed collaboratively. Dalhousie Legal Aid Service and the provincial Human Rights Commission reviewed drafts. Five months after it was implemented, the policy was revised, based in part on feedback from incarcerated trans and gender-variant people.

The policy is detailed. It provides, among other things, that self-identification is the sole measure of a trans person’s gender identity. Self-identified names are to be used, except in rare circumstances when legal names are required. Prior to all searches, the policy states that trans and gender-variant people will be asked to identify whether they would prefer to be searched by a man or woman correctional officer, or to have a split search.

McCarthy and Scoville said training is necessary to educate staff regarding the policy, human rights considerations and respectful workplace conduct.

Taylor also noted a need to educate incarcerated cisgender people (people whose gender identity aligns with their sex assigned at birth). McCarthy agreed, but expressed concern that an educational session could unintentionally out a trans person housed in the unit and put them at risk of violence.

Though trans and gender-variant people are not to be held in segregation, or “administrative close confinement,” solely on the basis of gender identity or expression under the policy, they may be confined “for their own protection.” Trans and gender-variant people are also sometimes held in segregation pending a decision about where to place them.

In her tips for lawyers representing trans and gender-variant clients facing prison, Halpern recommended lawyers ask the sentencing judge to include in their order that the client not be held in segregation “for their own protection,” and order which prison the client be sent to. To further help ensure clients are placed in a unit that aligns with their gender, Halpern recommended lawyers assist clients in having their ID changed to reflect this. The Elizabeth Fry Society of Mainland Nova Scotia has a clinic to assist incarcerated people in changing the sex designation on their ID and covers the cost.

Trans and gender-variant people may also face heightened gender dysphoria in prison. The policy states that trans and gender-variant people will be provided with underwear and clothing based on self-identified needs. But many trans people also need items such as gaffs, binders, packers and breast inserts to affirm their identity. These items are not provided by Correctional Services, though the policy states that people “may request or require prosthetic devices to express their gender and reduce distress, anxiety and/or depression,” and that, upon completion of a search, will be allowed to retain these items unless there are “safety reasons” that cannot be resolved. Trans women and trans feminine people may also experience increased dysphoria and distress due to sporadic access to razors to manage facial hair growth.

Halpern said the Elizabeth Fry Society has advocated for daily access to razors for trans women, and has provided gaffs, binders, packers and breast inserts with the support of the Youth Project, a local, non-profit organization.

Halpern said that for non-binary clients (people who do not identify as either men or women), the prison system is especially difficult to navigate, as it adheres firmly to the gender binary. McCarthy explained that, given the choice of two binary options, some non-binary people (as well as some trans men) have asked to be placed in a women’s unit for safety reasons. Scoville noted that the computer program into which information about incarcerated people is entered has only “male” and “female” options. He said he has been considering how to create processes that are inclusive of non-binary people within a binary system.

Though Halpern said the provincial policy is a step toward improving the treatment of trans and gender-variant people in Nova Scotian provincial prisons, she called for greater change.

“Prison is not the place for most people,” she explained. “But it has become a catch-all for our social problems.”

Particularly for someone like Taylor, whose conviction arose in the context of homelessness and addictions, Halpern said what is needed is not a more trans-friendly prison, but safe housing, social programming and counselling for addictions and trauma.

Jaime Burnet is an associate lawyer with Pink Larkin in Halifax, primarily practising union-side labour law and human rights law. She organized the Trans People and Prisons panel as the chair of the Sexual Orientation and Gender Identity Community (SOGIC) section of the Canadian Bar Association — Nova Scotia. She does pro bono legal work for Women’s Wellness Within, a non-profit organization that provides support to criminalized women and trans people who are pregnant or parenting young children in Nova Scotia.