Women’s Rights Group Launches Constitutional Challenge to Stop Housing Biological Males in Female Prisons

Susan Mortimer/The Epoch Times

A Canadian women’s rights group has filed a court request asking for the right to pursue legal action on the constitutionality of placing biological men in women’s prisons.

The motion for hearing the legal challenge was filed by the Canadian Women’s Sex-Based Rights (CAWSBAR) group on Dec. 5. It argues that placing biological males in federal women’s correctional facilities violates the Charter rights of the women incarcerated in those facilities.

“The Claim alleges that the practice of placing and transferring trans-identified male inmates into federal correctional facilities traditionally reserved for women has caused incarcerated women a series of serious harms,” the motion reads.

The Justice Centre for Constitutional Freedoms (JCCF), which is supporting the case, says that the challenge would benefit the women who are “afraid” to come forward because they fear doing so could lead to a change in their parole decision or lead them to face negative consequences in prison.

If allowed to proceed, CAWSBAR’s lawsuit challenges the Correctional Service of Canada’s Directive 100: Gender Diverse Offenders, which allows trans-identifying biological males to be put into women’s correctional facilities even if the individual in question has not undergone gender transition surgery.

Directive 100 has been law since May 2022, and built on laws already put through in 2017 that amended the Canadian Human Rights Act and the Criminal Code to list gender identity and gender expression as protected categories under the law.

Directive 100 requires all correctional institutions to use requested pronouns, clothing, search methods, and placement in a correctional facility in accordance with an individual’s gender identity as opposed to based on their anatomy or the sex listed on their identity documents. It also includes provisions for accommodating gender-transition procedures.

The Correctional Services of Canada (CSC) said all offenders are given a risk assessment on a case-by-case basis, which includes placing them in secure housing.

“CSC effectively manages prison populations by ensuring that all offenders, including those with diverse gender identities, are in an environment that meets their security requirements, correctional programs and spiritual and cultural needs, thereby contributing to their safe rehabilitation and reintegration into the community,” CSC spokesperson Esther Mailhot said in a Dec. 9 email to the Epoch Times.

Mailhot added that in cases where “gender-related needs” can’t be met then all measures possible are taken to provide such needs via alternative measures.

“If overriding health or safety concerns are identified and cannot be effectively mitigated, the placement request may be denied. In such cases, alternative measures are implemented to support the person’s gender-related needs where they reside,” she said.

Directive 100

The directive also defines “gender diverse” as “an umbrella term for gender identities or gender expressions that differ from dominant cultural or societal expectations based on sex assigned at birth, which encompasses all gender identities (e.g., non-binary, transgender, two-spirited, etc.).”

The directive says that the practices for gender diverse individuals are implemented “in ways that respect their human rights and ensure their safety and dignity as well as the safety of others in the institutions and community.”

CAWSBAR argues that Directive 100 goes against the Charter rights of female prisoners, specifically Section 7, which deals with ensuring the right to life, liberty, and security of the person, and Section 12, which deals with the right to be free of being subjected to cruel or unusual treatment. The group also argues that the directive violates women’s Section 15 rights, regarding equality under the law, and Section 28, which holds that all Charter rights apply equally to males and females.

Lawyer Chris Fleury said the case is about protecting women from “risk of abuse or violence” from male inmates while they are serving time in a federal facility.

“No woman should be at risk of abuse or violence at the hands of a man while they are serving a sentence in a federal institution. Granting standing to CAWSBAR will give a voice to women who have been silenced by a fear of reprisal,” Fleury said.

The motion is set to be heard March 3, 2026, in Federal Court.