In support of prisoners and prison justice activism in Canada
CSC Loses Appeal in Transsexual Human Rights Case

Janice Tibbetts
Friday, February 07, 2003

OTTAWA - Canada's federal prisons will be forced to allow sex-change surgery for transsexual inmates as a result of a court ruling that concluded a blanket ban is discriminatory.

"If the medical opinion is that sex reassignment surgery is an essential service for a particular inmate, it follows that it should be paid for by Correctional Services Canada, as would any other essential medical service," wrote Madam Justice Carolyn Layden-Stevenson of the Federal Court of Canada.

Corrections Canada will revise its policy because of the decision, spokeswoman Michele Pilon-Santilli said.

But she warned that sex-change operations will not be available for all transsexual inmates.

The decision upholds a 2001 decision from the Canadian Human Rights Tribunal in the case of Synthia Kavanagh.

The tribunal said that it was discriminatory for prisons to have a blanket ban on sex-change operations but not on "non-essential" services such as the removal of tattoos.

The Corrections and Conditional Release Act requires prisons to provide essential health care to inmates.

Kavanagh, a 41-year-old transsexual, alleged discrimination based on sex and disability after prison officials refused to allow her to undergo a sex-change operation that had been pre-approved before she was imprisoned.

Kavanagh began hormone therapy and lived as a woman as a teenager.

When she was convicted, she had been been conditionally approved for sex reassignment surgery.

She ended up paying the $14,000 for her operation because of the prisons' ban. After spending more than a decade in various men's prisons, she was transferred more than two years ago to Joliette Institution, a medium-security women's prison north of Montreal.

The ruling is expected to affect less than a dozen transsexuals in Canadian prisons. In 2000, the most recent year for which statistics are available, 10 of the 2,500 inmates in federal penitentiaries were "pre-operative" transsexuals, but not all of them wanted surgery.

Sex-change surgery is considered an essential service that is covered by medicare in most provinces when a patient has been diagnosed with gender dysphoria, the medical term for people who believe they are the wrong sex

. It should be no different in Canadian prisons, said Justice Layden-Stevenson.

"The right of government to allocate resources as it sees fit is not unlimited," said Justice Layden-Stevenson in a judgment released yesterday.

"A human rights tribunal enjoys a broad discretionary power to award remedies to redress a discriminatory practice."

Ms. Pilon-Santilli said that Corrections Canada allowed the operations decades ago -- often with sad results.

"There have been a lot of tragedies of people who went through it but just could not adjust," Ms. Pilon-Santilli said.

Prisoners are permitted to dress as women and take hormone replacement drugs.

Kavanagh's lawyer could not be reached yesterday to say whether Kavanagh would seek reimbursement in light of the court decision.

The decision agreed with the human rights tribunal that candidates for sex changes would need medical assessment from one of five medical specialists.