Gender-variant People in the Criminal Justice System

Originally appeared in Transgender Tapestry #101, Spring 2003.

A Guide for Criminal Justice Personnel

A joint initiative of the Women/Trans Dialogue Planning Committee, the Justice Institute of BC, and Trans Alliance Society

? 2003 Trans Alliance Society

The Oscar-winning film Boys Don?t Cry told the story of Brandon Teena, a young trans man who was killed in Nebraska. After Brandon was arrested for cheque forgery, police reported to
a local newspaper that Brandon was legally and biologically female. Brandon was subsequently abducted, beaten, and raped by two acquaintances who were outraged that Brandon was trans. Despite threats by his assailants that they would kill him if he told police about the assault, Brandon did report the rape, and named the men who had assaulted him. Police scorned and mocked Brandon, and no charges were laid. Two days later, the same assailants killed Brandon and two of his housemates. Courts found the police officials partially responsible for Brandon?s death.

Should I record a trans victim?s gender as M or F?

To avoid incorrect assumptions about a person?s gender, offer every victim the chance to self-identify their gender. To promote accurate recording, consider:

? Changing forms to read ?Gender: ___? with the blank to be filled in by the victim using a term of their choosing.

? List male, female, and transgender, with a note that more than one box should be checked if applicable.

How should I respond to a complainant who says, ?there?s a man in the women?s washroom??

There is no problem unless the complaint is about inappropriate behaviour (e.g., exhibitionism or peeping)?in which case the person should be escorted from the bathroom for their behavior, regardless of their sex or gender. It is legitimate for all women to use the women?s washroom, no matter how
masculine they look, and this poses no inherent threat to other women. Human rights
tribunals have specifically upheld the legal right of transsexual women to access women?s washrooms.

If I get a ?domestic? call and the victim is trans, does the Violence against Women in Relationships Policy apply?

Yes. The policy explicitly extends to anyone who is abused by a partner, regardless of the sex of the partner or the sexual orientation of the victim.

If a suspect stopped on a traffic violation has a driver?s license with a man?s photo and name, but other identification has a woman?s name and is marked ?F,? which ID do I go by?

Discrepancies in the identification used by trans people usually result from the contradictions and complexities of the regulations governing identification rather than criminal acts such as forgery or the use of ID to commit fraud. Even for legal documents such as traffic tickets, you have a certain amount of discretion to record information you feel best matches the person?s general presentation (i.e., the name and sex they appear as now, not those on old ID). It may be helpful to ask the person what they would prefer; you can do this sensitively by saying ?You have two names on your ID?which name do you most commonly go by??

If a woman who?s been arrested discloses she is a pre-operative male-to-female transsexual, where should she be celled, and who should do the strip-search?

When possible, offer the choice of being searched by a male or female officer, and
document the preference/consent expressed by the prisoner. Celling decisions are best made on a case-by-case basis. The primary consideration should be safety: trans people (both MTF and FTM) are at great risk of harassment and violence if housed in the men?s general population. Australian correctional services uses a three-tier policy that emphasizes safety:

1) Is it safer to place a trans prisoner in a male facility or a female facility? Which unit in a particular facility is safest?

2) What gender does the prisoner live as?

3) What is the prisoner?s physiological status in terms of genital surgery?


How am I supposed to react? Is it okay to tell my colleague that I feel uncomfortable talking about these issues?

It is normal to be surprised and to have questions about what to expect. While every trans person is unique, most expect simply that they be treated with respect, as would any other colleague. You do not need to understand or agree with a colleague?s personal decisions or behaviors in order to be responsible and respectful in the workplace.

Will my colleague still be able to focus on the job? Can I count on them in an emergency?

Although ?coming out? to colleagues as trans can be very stressful, your trans coworker is still at work to get the job done. Many people (including criminal justice personnel) have successfully
transitioned on the job.

Do I have to share a washroom or locker room with someone who used to be the opposite sex?

Trans people use washrooms and locker rooms for the same purpose as everyone else, not to watch others. Although at first it can be strange to share a washroom with someone you have known as the ?opposite? sex, with time this tends to pass.


How do I know if a person is trans?

You can?t necessarily tell from appearance. Many trans people have no obvious visual characteristics, and a person who you might think looks gender-variant might not think of themselves in this way.

If I?m not sure if someone is trans, can I ask?

If someone asked you what your gender was, you?d probably wonder why they were asking. Most trans people are similarly uncomfortable about this type of question. If you have to ask, be sensitive and cautious, and only ask if you need to know (not because you are curious).

Should I say her, him, or it?

The term ?it? is insulting and should never be used. Instead:

1) Try to use language that avoids gendered terms (e.g., use ?this person,? ?they,? or the individual?s name instead of ?he? or ?she?).

2) Use a gender pronoun that reflects a person?s overall appearance (hairstyle, makeup, shoes, etc.) and other cues (name, etc.). For example, a masculine looking person in a dress will generally appreciate being called ?her.? If a person has checked M or F on a form, you should refer to them as they have indicated.

3) Ask in a way that is respectful. To avoid offense, you can try inquiring indirectly by asking, ?Can I refer to you by your first name, or would you prefer to be called?? and hoping they indicate a title (Mr., Ms., Mrs., etc.) or a pronoun that gives you a cue you can act on. If you are just not sure, you can try a pronoun and see what the response is, or ask which gender pronoun the person would prefer.

Given that there is no way of knowing if someone is trans, you might benefit from using these guidelines with every person, not just those you suspect might be trans, so as to avoid incorrect assumptions about a person?s gender.