Dalhousie Journal of Legal Studies


Allison Smith


Prisons regulate identities and what rights get recognized and protected in a prison setting. Gender is a core element of identity that is policed by the prison system and by the law that governs prisons. Focusing on developments within Canadian transgender jurisprudence, this paper explores how prisoners’ bodies that do not conform to a strict gender binary are defined as inhuman. By critically assessing the prison system and prison policy, this essay demonstrates how Canadian law has often failed to address the needs and lived experiences of transgender women in their interactions with the penal system. As case law demonstrates, the rights of cisgender women—that is, women whose gender and anatomy have aligned since birth—tend to trump the rights of transgender women. Implicit in this tendency is a judgment as to whom the law will recognize as ‘real.’ This paper challenges the logic of protecting women deemed authentic when such protection comes at the expense of transgender women. To that end, the pivotal cases of Kavanagh v Canada (Attorney General) and Forrester v Peel (Regional Municipality) Police Services Board are examined. These cases show how the law’s reliance on genitals as the primary signifier of gender contributes to the dehumanization of the transgender subject in a prison setting. In order to query this logic of genitocentrism, this paper also examines developments in transgender jurisprudence outside the prison context. It concludes with an analysis of XY v Ontario (Minister of Government and Consumer Services) in order to track the movement of Canadian law away from a transphobia that allows body parts to speak for individuals.

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.