The passage of federal protections for trans people in 2017 under Bill C-16 lends well to the perception that the nation-state of so-called Canada is extremely progressive, where trans people are both included and protected. However, this imagery is called into question when examining the ways in which the state enacts violence on those they claim to protect. This blog exposes Canada’s guise of gender equality, and its relationship to racial (in)equality, by exploring how oppression is built into the federal prison system. Providing an overview of the creation of, and reforms to, women’s prisons and the limited inclusion of trans people within this system helps debunk the state’s commitment to gender equality and reveals how intersecting sexist, cisgenderist, racist, and colonial logics shape women’s institutions.
In December of 2017, the federal prison system formally introduced a limited version of trans rights, Correctional Service Canada’s (CSC) Interim Policy Bulletin 584 (gender identity or expression), which intended to align the treatment of federally incarcerated trans people with a human rights approach. However, these rights are not guaranteed, but may be overridden if “safety” and “health” risks are identified that cannot be managed. The rights, and seemingly the very existence, of trans women in women’s prisons has been denounced by trans exclusionary radical feminist (TERF) groups, such as the PDF Quebec, who advance transphobic arguments to maintain trans women’s confinement in men’s prisons. While trans people’s right to be held in prisons that match their gender identities has been subject to heavy criticism, it is important to understand that prison placements have never been based on gender alone. Rather, the condition for placement in a women’s institutions is shaped by the racist, colonial logics embedded in the prison.
Constructing the Women’s Prison System in Canada
The first women to be incarcerated in Canada were held in make-shift units in Kingston Penitentiary, a facility intended for men, built in 1835. Women would be imprisoned in Kingston for the first 100 years of its operation, until Canada’s first federal Prison for Women, known as P4W, was completed in 1934. During these 100 years, Canada also opened its first provincial reformatory, Ontario’s Andrew Mercer Reformatory for Women, in 1874. From 1874-1934, women would either be sentenced to the Mercer Reformatory, the men’s penitentiary at Kingston, or alternatively to local jails (also intended for men). After 1934, P4W opened its doors and became the central institution for all federally sentenced women, while provincial reformatories operated well into the late 1960s. As there is considerable overlap in the time in which women could be sentenced to each of these facilities, placement decisions were not made haphazardly.
The distinction between who was placed in women’s reformatories and who was placed in local jails or the penitentiary designed for men may be understood through the logic of ‘reformation.’ Others studying the history of women’s imprisonment have argued that early reformatories were established for the purposes of reforming young, white, working-class women, sentenced for relatively minor offences, into a domestic lifestyle through strong maternal guidance. These ‘fallen women’ were deemed capable of reform and were sentenced to the reformatory, while so-called ‘hardened criminals’ were rendered ‘unmanageable’ and more likely confined in men’s prisons. The reason for this separation arose from a fear of ‘contamination’, as was the language at the time: the fear that the older, experienced offenders would negatively influence the reformation of the younger women.
The overtly racist history of reformatories in the United States may be useful to fully understand how these institutions operated in the Canadian context. Since reformatories were established during the time in which enslavement was institutionalized, Black women were subject to a different form of punishment. It was not until the formal abolition of slavery, and the codification of anti-Black laws, that the numbers of incarcerated Black people increased. As this occurred, Black women were disproportionately sentenced to federal (men’s) prisons or the convict lease system, as opposed to women’s reformatories. When they were sent to reformatories, Black women were few in numbers and were routinely segregated from white women.
Similar segregatory practices have been documented among Indigenous women in early Canadian prisons. During the era in which women’s reformatories were established, prison administrators mobilized the racist, colonial construction of Indigenous peoples as ‘uncivilized’ to insist that criminalized Indigenous peoples were not capable of being reformed. The purpose of incarcerating Indigenous peoples, then, was less motivated by the logic of reformation than by population control. Incarceration has been a key tool used by the settler state to commit genocide, overthrow Indigenous sovereignty, and advance the theft of the land.
While reformatories were eventually phased out in and around the 1960s, the central women’s prison, P4W, remained in operation despite extensive and continual criticism of the heinous conditions for women behind its walls. It was not until 2000 that P4W closed its doors, as it was gradually replaced by five regional facilities for women, following the 1990 Creating Choices report, led by the Task Force on Federally Sentenced Women.
On April 26, 1994, the warden of P4W called in an all-male Institutional Emergency Response Team (IERT) from Kingston Penitentiary to perform a cell extraction and strip search on eight women in segregation, five of whom were Indigenous. What is less known about these infamous events is how the women involved were transferred out of P4W and into the Millhaven’s Regional Treatment Centre, a men’s institution – and a practice which was denounced by the Arbour Commission of 1996 as segregation.
Previous research has documented how prison officials appeal to ‘safety concerns’ and ‘risk management’ to remove and exclude women classified as maximum-security from women’s institutions. When the first regional facility for women opened in Edmonton Institution for Women (EIFW) in 1996, several serious incidents occurred, prompting CSC to heighten security of all new regional facilities. On three separate occasions in April of that year, a total of seven women escaped. On May 1st, it was announced that EIFW would be temporarily closed until it was equipped to accommodate higher security levels. Women held at medium- and maximum-security designations were immediately transferred out of EIFW and back to men’s prisons.
Later that year, a Commissioner's Directive announced that no federally sentenced women who were placed in maximum-security areas would be accommodated at the new regional facilities. These women would remain in discrete units in men’s facilities. Risk assessments and management strategies over-classify Indigenous women as safety ‘risks’– an example of systemic anti-Indigenous racism and sexism that remains unresolved. Transferring all women who were designated maximum-security resulted in a new mode of racial segregation.
It was not until 1999 that these women would return to women’s facilities, only after CSC constructed what they termed “secure units” at 4 of the regional prisons – with the exception of the Okimaw Ohci Healing Lodge (OOHL). Women designated for maximum-security would join women at the new facilities, but would remain segregated, living in isolated units and under intense restrictions and surveillance.
This historical overview reveals how the criteria for placement in a women’s institution has never been solely determined by gender. Rather, gender division has always been conditional. The ‘woman-centred’ reforms offer an illusion that the prison system is a safe and humane institution for women. However, the prison system’s overarching mandate of ‘public safety’ will always take precedence, resulting in racial exclusions based on risk.
In the past, Indigenous women might have been excluded from women’s institutions on the basis of racist, colonial assumptions of their inability to be reformed (at the same time as they are deemed ‘deviant’ and in need of reform to justify their incarceration); whereas today, risk assessments over-classify Indigenous women as high security risks to place them in maximum-security units, a process which has been used in the past to justify their segregation in men’s prisons and continues to result in their segregation in separate, highly securitized and controlled units.
What this means is that the gendered structure of the prison is defined with respect to the racist, colonial logic of risk management. When thinking about the placement of trans people in prisons, we must consider the structures of hetero-patriarchy, anti-Blackness, settler colonialism also at play.
Trans Segregation through Risk Logic
Although trans rights now formally exist in federal prisons, they may be overridden if a ‘risk’ to one’s health and safety is constructed — and staff are afforded significant discretion in these assessments. There is a lengthy history of constructing imprisoned trans women within the logic of risk and this occurs in three ways: by depicting trans women as at risk of transphobic violence from other prisoners; by constructing trans women as a risk to cis women, often advanced through arguments that conflate trans women with sexual predators; and, finally, by constructing trans women as a risk to institutional order, often times emerging through the threat of queer sexuality.
One way that prison administrators justify confining trans women in men’s prisons is on the basis of physical infrastructure, arguing that women’s facilities are not equipped to accommodate people of their security classification. Administrators argue that since the fences are lower than that of men’s institutions, and staff do not carry firearms, women’s prisons do not have the physical security to accommodate trans women and therefore their presence would constitute a risk to public safety in the event of an escape. Not only is this argument steeped in transphobic presumptions about trans bodies, but it mirrors the way in which women, predominantly Indigenous women, were returned to men’s prisons from 1996-1999 because they were constructed as at risk of escape.
The ongoing practice of confining trans women in men’s prisons is, therefore, an instance of history repeating itself; the logic of risk used to deny trans people their right to gender-based prison placements has been — and still is — used to enforce a racist, colonial mode of exclusion and segregation among Black and Indigenous women. The legalized limits on trans rights, in the name of ‘safety’ and ‘security’, may most profoundly impact on the lives of Two-Spirit, Indigenous trans, Black trans and other trans people of colour due to the systemic racism of the prison system.
Expanding the Prison through ‘Progressive’ Reform
The ‘woman-centred’ reforms enacted through Creating Choices not only resulted in the expansion of women’s prisons, but intensified techniques of security and control that primarily shape the lives of racialized and Indigenous women. The introduction of trans rights into the federal prison system risks contributing to the same expansion, heightened securitization, and justification for prisons as the gender-responsive reforms that preceded it. Just as high security units were added to regional women’s prisons under the premise of risk-management, there is a potential that the prison system may continue to expand and implement additional security measures to attend to the alleged risk that trans women constitute. Reforms always lead to prison expansion, but seldom improves prison conditions.
Those who have studied prison reform reveal how administrators strategically limit, water down, or deny proposals for change that challenge the existing structure, operations, or maintenance of the prison system. In other words, reform is limited by the prison system’s own interests. Imprisoned trans people are constructed as threatening because their very existence undermines the way in which men’s and women’s institutions are organized according to essentialized beliefs regarding gender. The exemptions listed in CSC’s policy is an attempt to ensure the institution’s legality, under the Human Rights Act, while preventing substantive change to the current structure and functioning of prisons. The formal introduction of trans rights is a superficial change based on a liberal politics of inclusion, wherein certain trans people are folded into men’s and women’s prisons, but the underlying structure of the prison, as a cisgenderist, sexist, racist, colonial institution is naturalized.
Abolition is Necessary for Trans Liberation
Revealing the limits of trans rights in prisons helps illustrate how such institutions can never be inclusive or friendly to trans people, or anyone for that matter. Intersecting structural oppressions are embedded in the prison, and no amount of reform can alter the oppressive logic of incarceration. As this overview of women’s prisons reveals, reform may offer a perception that prisons are humane and kinder institutions, while its racist, colonial rationales remain intact. As the prison is an institution that operates to (re)produce the oppression of people of colour, Indigenous peoples, queer and trans people, women, and other systemically marginalized groups, abolition is necessary for liberation.
Although the introduction of trans rights into the prison system is beneficial to the needs of trans folks surviving incarceration, making prisons trans-inclusive will not lead to trans liberation. The prison is designed to incapacitate, control, and isolate people a carceral society deems disposable. The pathway towards gender self-determination is not based on inclusion in a violent and oppressive system which continues to govern gender in accordance with white, colonial, hetero/gender normativity. On the contrary, the pursuit of gender self-determination is dependent upon prison abolition, as intertwined with Indigenous resurgence and self-determination, Black liberation, and critical trans politics.
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Leon Laidlaw (he/him) is a white settler, queer, trans man and PhD Candidate at Carleton University. Leon was born, and is currently living, on Treaty 1 Territory (Winnipeg). Leon’s doctoral research is concerned with the pursuit of gender self-determination as it may be achieved through prison abolition and anti-colonial resistance.