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Federal Court orders transfer of transgender inmate

Overview

In Boulachanis v Canada (Attorney General), 2019 FC 456, Grammond J ordered the Correctional Service of Canada to transfer a transgender inmate.

The inmate was being held at Donnacona Institution, and CSC had denied her request to be transferred to a women’s institution. She was also placed in administrative segregation on the basis of threats made against her life and safety.

The inmate brought an application for judicial review to challenge the refusal to transfer, and in the meanwhile sought an interlocutory injunction. Justice Grammond granted the motion, in part, ordering the transfer.

Background

In Kavanagh v Canada (Attorney General), Canadian Human Rights Tribunal held that the refusal to accommodate trans women inmates who have not undergone sex reassignment surgery constituted prima facie discrimination, but it was found to be justified in the correctional context.

CSC then created a guideline on gender dysphoria, which stipulated that pre-operative male to female inmates would be held in men’s institutions (and female to male inmates held in women’s institutions). This was later repealed and replaced with an interim policy that outlines the duty to accommodate offenders based on their gender identity, unless health or safety concerns cannot be resolved.

Decision

Justice Grammond agreed that the inmate experienced prima facie discrimination, noting that “there is prima facie discrimination when a trans person is forced to use facilities reserved for people of their anatomical sex, when they do not correspond to their gender identity or expression” (at paragraph 35).

Justice Grammond rejected the Attorney General’s argument that the discrimination is nonetheless justified. They Attorney General asserted that the security risk posed by the inmate justified her detention at a men’s facility, and two women’s institutions even advised that they did not wish to accommodate the inmate because of safety concerns. The Attorney General argued that inmates transition from male to female should be treated as men because of their physical capabilities, to which Grammond J stated: “the Attorney General’s arguments are based in a questionable form of biological determinism” (at paragraph 43). Further, there was no evidence that the transfer would impose undue hardship.

Given that there were safety concerns with keeping the inmate at Donnacona Institution and that the inmate was being kept in segregation (both situations that would likely persist if she were transferred to another men’s institution), Grammond J found that failure to grant the injunction would cause irreparable harm.

Moreover, the balance of convenience favored granting the interlocutory injunction and ordering the transfer.

 

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