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B.C. transgender woman files human rights complaint after stint in male prison

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March 05, 2021 - 7:00 AM

A B.C. transgender woman has who was refused a transfer to a women's prison has filed a complaint with the B.C. Human Rights Tribunal.

In a Mar. 3 B.C. Human Right Tribunal decision, Makayla Sandve says she was discriminated against because of her gender identity, gender expression and her sex when B.C. Corrections refused to transfer her to a women's prison through repeated requests.

Sandve claims she was subjected to frisks by male staff and male inmates made derogatory and sexually harassing comments about her.

In one instant, Sandve says she requested a female guard to perform a search but the female corrections officer said, "eww, I’m not doing it" and then told Sandve that she was not really transgender.

According to the decision, Sandve spent three months in Surrey Pretrial Services Centre from October 2017 to January 2018.

The decision says Sandve has an "extensive criminal record" although does not say why she was being held in custody at the time.

Court records show only one person in the province with the name Sandve with a criminal record. While we can't confirm they are one and the same, the record dates back a decade and includes charges for assault with a weapon, assault, break and enter, possession of stolen goods, and the possession of drugs for trafficking, along with uttering threats, multiple breaches of probation and minor thefts.

According to the decision, B.C. Corrections says the delay in transferring Sandve to a female prison came about because of “health or safety concerns.”

"Even if Ms. Sandve does have an extensive criminal record, B.C. Corrections has not explained how this would justify its decision not to transfer her," the decision reads.

B.C. Corrections also argue that prisons "by their very nature" are dangerous places.

"To infer, without evidence, that Ms. Sandve should be treated as a male dangerous to female inmates engages in questionable biological determinism,” the Tribunal said.

After Sandve filed her complaint with the Human Rights Tribunal, B.C. Corrections, the province and the Ministry of Public Safety and Solicitor General argued the claim should be dismissed.

However, the Tribunal ruled Sandve's case had merit and refused to dismiss it.

The Tribunal's move doesn't mean Sandve has proved she was discriminated against, only that there is enough evidence for the case to go to a hearing.

The decision says because Sandve is transgender she was segregated from other inmates and confined to her cell 22 hours a day.

"While separately confined, she says male inmates slipped offensive and derogatory notes and drawings under her door and asked her for sexual favours," reads the decision. "She says she requested section status because she did not feel safe in a jail full of men."

Sandve had been in custody for several weeks before she told staff she identified as female. She claims she was not allowed to work and denied proper access to healthcare as staff were not "experts about gender identity."

She also requested female prison grab which is green in colour but was told she had to wear the standard red prison uniform.

"She describes 'having a hard time' and feeling 'ugly' without clothing and items needed to express her gender," the Tribunal said. "She describes a loss of dignity and self-respect related to her gender not acknowledged and not treated as a female with respect."

The decision says Sandve requested to be transferred to a women's prison on multiple occasions which is what B.C. Corrections' Transgender Policy requires.

In its defence B.C. Corrections says Sandve’s access to healthcare, work opportunities, and green institutional clothing are unconnected to her gender identity and she was not discriminated against.

B.C. Corrections says it reasonably accommodated Sandve while she was in custody.

However, the Tribunal ruled Sandve's allegations were not merely speculation and that she was not transferred to a women's prison, and therefore was segregated during her incarceration and isolated for 22 hours a day.

"The evidence before me indicates that there was a connection between Ms. Sandve’s healthcare needs and her sex, gender identity and expression," the Tribunal said.

"I am left to wonder. Why was Ms. Sandve not transferred to (a women’s prison) as soon as possible, per the Transgender Policy? What were the unresolvable ‘overriding health and safety concerns’ that justified Ms. Sandve’s segregation within a male jail, for over two months, after self-identifying as female?” the decision reads.

Ultimately, the Tribunal’s ruling means the case can now go to a hearing if it is not resolved in mediation beforehand.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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