A Federal Court judge has handed a pair of procedural victories to a women’s advocacy group challenging federal policies that allow trans-identifying male inmates to be housed in women’s prisons.The constitutional challenge was launched by Canadian Women’s Sex-Based Rights with legal support funded by the Justice Centre for Constitutional Freedoms. The case targets Correctional Service Canada’s Commissioner’s Directive 100, a policy governing gender-diverse offenders that permits inmate transfers based on gender identity rather than biological sex.In rulings released Thursday, Associate Judge Catharine Moore rejected a federal government application seeking to strike the claim before trial and also granted CAWSBAR public interest standing to continue the case on behalf of federally incarcerated women.The federal government had argued the claim lacked sufficient factual basis and failed to disclose a reasonable cause of action. The court disagreed, finding the challenge raises legitimate constitutional questions under Sections 7, 12 and 15 of the Charter, as well as provisions of the Canadian Bill of Rights.Those Charter sections deal with rights related to life, liberty and security of the person, protection from cruel and unusual punishment, and equality before and under the law.The court further ruled it was not “plain and obvious” that the challenge had no chance of succeeding..In granting public interest standing, the judge accepted arguments that federally incarcerated women may be unwilling or unable to launch legal action themselves due to fears of institutional repercussions, effects on parole opportunities or other consequences within the prison system.The decision also acknowledged evidence presented to the court that many federally incarcerated women have histories of physical and sexual abuse.Constitutional lawyer Chris Fleury said the rulings ensure the issues raised in the lawsuit will now receive a full hearing.“The court recognized that incarcerated women are not realistically in a position to bring these claims on their own,” Fleury said.Prior to 2017, Correctional Service Canada generally required male inmates seeking transfer to women’s prisons to undergo sex reassignment surgery. After gender identity and gender expression were added as protected grounds under federal law, the agency shifted toward policies based on self-identified gender status.Commissioner’s Directive 100 officially came into force in May 2022.No hearing date has yet been scheduled for the next stage of the case.
