A new lawsuit filed in Federal Court is taking aim at the federal government’s practice of placing trans-identifying male inmates in women’s prisons, calling it a violation of female prisoners’ constitutional rights and a form of cruel and unusual punishment.
Filed on Monday, by the Justice Centre for Constitutional Freedoms on behalf of Canadian Women’s Sex-Based Rights (CAWSBAR), the suit challenges Correctional Service Canada’s Directive 100: Gender Diverse Offenders.
This policy, which came into effect in May 2022, allows male inmates who identify as women — regardless of whether they have undergone gender-related surgery — to be transferred to one of six federal women’s prisons across Canada.
CAWSBAR, a non-partisan advocacy group, argues that the policy endangers vulnerable women and violates several sections of the Canadian Charter of Rights and Freedoms, including the rights to life, liberty, and security of the person (Section 7), the right to be free from cruel and unusual treatment (Section 12), and the right to equality without discrimination based on sex (Section 15).
The lawsuit also invokes Section 28, which guarantees that Charter rights are equally held by male and female persons.
The organization cites numerous instances of physical and psychological harm suffered by female inmates who have been forcibly confined with violent trans-identifying males, including reports of sexual assault, harassment, beatings, stalking, and grooming. According to CAWSBAR, many of these women already have histories of abuse and trauma, and the policy exacerbates their suffering, sometimes leading to PTSD, depression, anxiety, and suicidality.
“The federal government's failure to protect women has left incarcerated women to endure cruel and unusual punishment,” said Heather Mason, a CAWSBAR board member and former inmate at the Grand Valley Institution for Women.
“This matter is especially important to me as a former federal prisoner. I firmly believe that all women are entitled to sex-based rights and protections as specified in the Canadian Charter.”
The lawsuit also references research from the Macdonald-Laurier Institute, which found that more than 90% of trans-identifying male prisoners were convicted of violent offences.
Nearly half were incarcerated for homicide-related crimes, and one-third for sexual offences — rates far higher than those found in the general female prison population.
CAWSBAR contends that the current policy silences female inmates who fear that complaints may be dismissed as “transphobic” and could damage their parole prospects.
The court filing describes an environment in which women are discouraged from speaking out due to fear of institutional retaliation.
Prior to 2017, only males who had completed sex reassignment surgery could be considered for transfer to a women’s facility.
However, legislative changes that year added gender identity and expression as protected grounds under the Canadian Human Rights Act and the Corrections and Conditional Release Act, prompting Correctional Service Canada to revise its policy.
John Carpay, president of the Justice Centre, called the lawsuit a necessary step to uphold the rights of incarcerated women.
“This lawsuit is a pivotal stand for the safety and dignity of female inmates,” he said. “It underscores the urgent need to prioritize the security of vulnerable women over ideological directives.”
CAWSBAR is asking the Federal Court to strike down Directive 100 and declare it invalid, arguing that it puts women at unacceptable risk and is incompatible with the rights guaranteed under the Charter.
