Update: For information regarding the addition of Gender Identity and Expression to the 2016 BC Human Rights Code, and to the 2017 Canadian Human Rights Act, please visit the Explicit Protection page.
Trans people in British Columbia have:
- The right to privacy in our home. Generally, we do not need to answer the door if the police come to our home. There are exceptions. You must answer the door when police come to your home if:
- They have a warrant (check that the address and date on the warrant are correct).
- You have conditions in a bail or probation order.
- They are chasing someone who has run into the building.
- They are trying to help someone who is in immediate danger.
- They believe evidence of a crime is being destroyed.
The same privacy laws apply in a shelter, SRO, or other apartment building, but the shelter operator or landlord may decide to cooperate with the police and let them in without a warrant.
- The right to go about our business without police interference. The police may not stop you and talk to you in the street unless:
- They see you breaking the law (including bylaws).
- They suspect you have committed an offense or are breaking an immigration law.
- They have a warrant.
- You are driving.
If you are driving a car and the police stop you:
- You must show a valid driver’s license.
- You may need to show the registration of the vehicle.
- You may be asked for a breath sample. If you refuse, you will be arrested. You may be charged with a criminal offense. You will then either be kept in custody or released on a promise to appear in court.
Please note: If you are sleeping in your car in a place where the car cannot legally be or in a place where a bylaw prevents sleeping in cars, you must identify yourself so the officer can write you a ticket.
It might be helpful to know that it is not illegal to cross-dress in public. We have the right to use bathrooms appropriate to our gender identity. We are entitled to use identity documents, even if some show different genders, as long as we are not using them for a fraudulent purpose.
- The right to keep our identity private. Officers do not have the right to know our identity unless they have reasonable suspicion that we have committed a crime.
- If an officer has reasonable grounds to suspect that you have committed a crime, they are entitled to your name, address, and birthdate. Give them this information. There is no general requirement to carry identification papers with you, so you don’t have to show them ID unless you are driving a car.
- For people who do not have Canadian citizenship, a Canada Border Service Agency (CBSA) officer cannot randomly stop you on the street and ask for identification without having some grounds to believe you have committed an immigration offence.
- Border services officers can arrest foreign nationals who have not been found to be in need of Canada’s protection without a warrant and order their detention.
- CBSA officers must have a warrant to arrest a permanent resident or a protected person.
- Talk to a lawyer immediately if you have been requested to go to an interview at a CBSA office, have been called by CBSA, or are arrested or detained by CBSA.
- Protection from search and seizure. This means unless we are detained or arrested, we do not have to let police search our body or possessions (including our car).
- An exception to this rule exists when crossing the border into Canada. All people and goods entering Canada are allowed to be examined by CBSA officers. They have the right to search and seize the personal belongings of someone entering Canada without a warrant. This includes electronic devices such as laptops and cell phones. Outside of a port of entry, CBSA officers have no more authority to search and seize than a police officer and generally must either obtain a warrant or have the person’s consent.
- The right to be referred to by the name and pronouns we use. In 2015, Angela Dawson won a human rights case against the Vancouver City Police in part because they refused to use her chosen name and pronouns.
- The right to have our concerns taken seriously when we report a crime.
Staying Safe from Police Brutality
Trans people report high rates of harassment and violence from police. This is especially true for trans women who are also Aboriginal, people of colour, and sex workers. It is good to stand up for your rights. It is sometimes more important to be safe. To help keep yourself safe:
- Try to be calm during encounters with police and do everything you can to keep yourself and others safe without becoming a target.
- Speak quietly if you speak at all, keep your hands visible, and move slowly. If you are going to put your hand in a pocket or purse to get something out, tell officers what you are doing before you do it.
- If your life is in danger, it may be better to strategically submit to an attack by police in order to preserve your life.
- If possible, pay attention to the badge numbers of police officers you deal with and keep notes about things that happen to you. You may need this information later to file a complaint or to tell your lawyer.
What to expect if you are arrested
These are your rights when you are arrested:
- The right to be told what you are being arrested for.
- The right to be ‘read your rights.’ They must say you have a right to remain silent and the right to talk to a lawyer. Pay special attention and tell your lawyer if they do not say those words.
- The right to be given the number for a legal aid lawyer. You are entitled to multiple phone calls until you reach a lawyer. If you have just been arrested, call Brydges Line at 604-631-0566 (legal aid duty counsel) or toll-free at 1-888-978-0050 to speak to a free lawyer.
Police have more powers when you are arrested. If you are arrested:
- Police can search your body. See below for your rights when having your body searched.
- Police can search your belongings. They will take your belongings and put them in a bag. They should give you a property receipt so you can get your items back, unless they are evidence in the case against you. If they are, your lawyer will have to apply in court to get the items back. If the police seize drugs from you, you will never get them back.
What to expect if you are detained
If police suspect that you have committed a crime or that you know information about a crime, they may detain you. Being detained means that you are officially being held, usually for questioning. If a police officer has your ID or phone or says, “Stop” or “Wait here”, you are detained. If you are not sure if you are being detained, politely ask, “Am I free to go?” If they say no, ask the reason. You do not have to answer any questions other than your name, address, and birthdate.
If you are detained, police can do a ‘pat down’ search on top of your clothes to look for weapons. This is called a ‘search for officer safety’. They cannot look in your pockets or bags for things that are not weapons.
What to expect if you are interrogated
If the police are investigating a crime, they may try to interrogate you. This can be a very difficult experience. You have these rights:
- The right to silence. You never need to answer any questions after you identify yourself. You do not need to tell police that you are trans. Don’t make a statement or try to explain what happened until you have spoken to a lawyer. It is very, very difficult not to answer questions. Police are very good at getting people to talk – by being nice, by lying, or other tactics. The reason it is important to say nothing – even if you did nothing wrong – is that what you say can be used against you in ways you cannot predict.
- The right to a lawyer. Do not agree to anything until you have spoken to a lawyer. You do not need to tell the lawyer about your gender identity, but you should tell them if you were mistreated by the police at any point.
- The right to be free from cruel and unusual punishment.
You do not have the right to have a lawyer present during your interrogation. During your interrogation police should use your chosen name and self-identified gender, and treat you respectfully. It is not legal for police to:
- Question you for an unreasonable amount of time
- Interrogate you under conditions of duress – for example, if you are naked, cold, or have not slept.
- Chain you up in an uncomfortable position or in a public place.
- Draw attention to the fact that you are trans beyond necessary discussions about where to place you.
- Threaten to hurt you, kill you, or destroy your things.
- Force you to have sex.
- Make you fear for your safety by following you around, talking to you, or watching you.
How can you stand up for your rights?
If police mistreat you, you have many options:
- You can file a human rights complaint if there is evidence that the mistreatment was motivated by your trans status.
- If the complaint is against the municipal police, file your complaint with the BC Human Rights Tribunal. See Human Rights Complaints for more information.
- If your complaint is with the RCMP, file with the Canadian Human Rights Commission.
- You can sue the police if there is no evidence that the mistreatment was motivated by your trans status.
- You can sue both the police and the municipality that directs them for damages you have suffered.
- You can do this in Small Claims Court (for disputes less than $25,000) or in the BC Supreme Court.
- You may need a lawyer to do this and some might only charge a fee if you are awarded money by the court. It is also possible to represent yourself. There are usually very short deadlines for suing the police. See How to Sue the Police in the Resources section and Private Security in Small Claims Court in the Resources section.
- You can file a complaint with the Office of Police Complaints.
- For help filing a complaint against the police, call the BC Civil Liberties Association at 604-687-2919 or see their website .
- The Office of Police Complaints Commissioner deals with provincial and municipal police officers. The Complaints Commissioner for the RCMP handles RCMP issues.
- There is no cost to file.
- There can be very short deadlines.
- Complainants often get poor results. Some advocacy organizations say the system is flawed because police are investigating themselves. In some cases a public hearing is possible. This is more like court and more fair.
- The Independent Investigator’s Office handles cases when police conduct may result in criminal charges against officers. This office does not take complaints from the public.
- You can report the crime to police, who may press charges.
- If you are the victim of a crime and the person who committed the crime is a police officer you can report the crime to the police. The police will decide if they will recommend charges.
What to expect during admission to a provincial prison in British Columbia
People go to a provincial prison when their sentence is less than two years, or if they are remanded to custody until trial.
- You have the right to self-identify your gender to correctional staff. You will be placed in a correctional centre according to your self-identified gender or housing preference, unless there are health or safety concerns that cannot be resolved. If you need to be transferred, it should happen as soon as possible.
- If you are not placed according to your preference, you can call Prisoners’ Legal Services for help. Their phone number is below.
- At intake, correctional staff should ask you your preferred name and gender pronoun and make sure this information is put in your file. You have the right to be referred to by your preferred name and gender pronoun. Staff should make sure private information is kept confidential.
- At intake, correctional staff should explain search processes and your options for being searched, in private. You have the right to choose who performs any frisk or strip searches (by a male or female officer, or both, and if you choose both, you can choose who searches which part of your body).
- You have the right to personal items to express your gender, and your preferred institutional clothing and underwear. You have the right to order canteen according to your gender.
- If you are housed according to your birth assigned sex, you are not required to share a cell with another prisoner.
- You have the right to private shower and washroom facilities.
What to expect during admission to a federal prison in British Columbia
People go to a federal prison when their sentence is more than two years.
- Currently, trans people are placed in sex-segregated facilities based on our genitals. This policy may be contested under human rights law.
- The policy for placement of trans people in federal prisons is not clear about what elements of gender affirming surgery are required to be placed according to our gender. In practice, Correctional Services Canada seems to be most concerned about penises in women’s prisons. If you were assigned female at birth, you may be able to be placed in a women’s prison even if you have had some gender affirming surgeries, if that is your wish.
- If you are placed in a prison that is not the same as your felt gender and is against your wishes, you can call Prisoners’ Legal Services for help 604-636-0470 or email them info@pls-bc.ca
- Correctional Officers can search your body in prison. Currently, according to law, an officer can decide the gender of the officer that will strip search you. In practice, staff will usually give you a choice of who searches your body. A lawyer can argue that human rights law requires you to have a choice of how you are strip searched.
- An Ontario Human Rights Tribunal decision has found that it is humiliating to require a trans woman to be strip searched by a male officer against her wishes. The Tribunal ordered that the Peel Regional Police Department change its policy. The Peel Police policy now allows the person being strip searched to choose between being searched by male officers, female officers, or a split search.
- The decision is not binding on Correctional Services of Canada, but you or a lawyer can argue that the principle is the same: it is discrimination to have a strip search by someone not of the gender that corresponds to your felt gender.
- Correctional officers may collect a urine sample. The collector of urinalysis testing must be ‘the same sex as the offender’, rather than the gender you identify with. It is possible for a lawyer to argue in a human rights case that human rights law states that people should have a choice of how you are strip searched and urinalysis tested.
What are our rights in prison?
Trans people who are incarcerated are entitled to safety, as well as the right to live free from harassment and discrimination based on gender. Unfortunately, our rights are not necessarily reflected in prison policies and we are not in a good position to stand up for our rights when we are in prison. Keep notes about your treatment. It is common to have to get help from outside organizations like the ones listed under Who can you go to for help?
Trans people in prison in British Columbia have:
- The right to shower in private.
- The right to wear clothes and makeup as we choose.
- The right to order personal care products (such as deodorant) that correspond with our gender.
- The right to be addressed by our chosen name and pronouns.
- The right to be treated with dignity and respect. This means we should not be targeted for verbal harassment or violence.
- The right not to be double bunked with another prisoner if we feel it puts us at a safety risk. Where possible, it can help to get a letter from a doctor saying that we should not be double bunked.
- For federal prisoners, CSC policy says it will consider your vulnerability and the risk you face of being a victim from a roommate. Staff should consider whether your proposed roommate has a history of victimizing others, as well as their criminal record. (Commissioner’s Directive 550 ‘Inmate Accommodation’, paragraph 23).
- For provincial prisoners, BC Corrections is also supposed to consider whether you have ‘peer issues’, the nature of your proposed roommate’s charges or sentence, and any health care recommendation that you should not be double bunked. (BC Corrections Branch Adult Custody Policy 4.7.4 [2013]).
- The right not to be put in solitary confinement because we are trans. We may request to be put in solitary confinement if we are worried we will be assaulted. We should be kept there only as long as we feel unsafe. The prison should try to find a safer place for us to live where we will have as much freedom as possible.
- The right to continue to receive hormone therapy in prison if we were prescribed hormones while in the community.
- BC Corrections Branch Adult Custody Policy 9.17.5 [2013] says that prisoners will be maintained at the current level of health care that they were at in the community. CD 800, paragraph 34 says that federal prisoners should get the same quality of health care that they can get in the community.
- In federal prisons, the right to gender affirming surgeries. A recognized gender identity specialist must recommend that you get gender affirming surgery.
- Currently, that specialist must be able to confirm that you have lived in the community as a member of your felt gender for at least one year before you went to prison.
- The ‘real life experience’ requirement is not in line with internationally recognized standards and if it is applied in your case, you can make a human rights complaint. You can call the Prisoners’ Legal Services for help.
- The right to get gender affirming surgery while in provincial prison is before the human rights tribunal, as of May 2015.
How can you stand up for your rights in prison?
If you have been treated unfairly because you are trans, you can make a complaint to the prison. Contact Prisoners’ Legal Services for help. If you are in a provincial prison, you can call Prisoners’ Legal Services at 604-636-0464. If you are in a federal prison, you can call Prisoners’ Legal Services at 1-866-577-5245.
This is the process for filing a complaint about a provincial prison:
- Provincial prisoners fill out a complaint form and submit it to the Warden.
- If you are not happy with the Warden’s response, you can make a complaint to the Investigation and Standards Office (ISO) at 250-387-5948. If your complaint includes a medical issue, tell the ISO and ask for a medical professional to review your complaint. The ISO can only make recommendations to BC Corrections. It cannot order BC Corrections to do anything.
- If you are not happy with the outcome of your complaint or grievance, you can make a human rights complaint to the BC Human Rights Tribunal. You can call the Tribunal at 1-888-440-8844 for a copy of the form and instructions on making a complaint. You can call Prisoners’Legal Services for help making a human rights complaint.
- Make sure you keep copies of all of the complaints and grievances you submit. You should also keep a journal of your treatment with dates and names, if you know them.
This is the process for filing a complaint about a federal prison:
- Federal prisoners can fill out a complaint form and submit it to staff.
- If you are not happy with the response you get, you can file a grievance with the Warden.
- If you are not happy with the Warden’s response, you can make a national grievance to CSC. Ask a staff person to give you the form.
- If you are not happy with the outcome of your complaint or grievance, you can make a human rights complaint to the Canadian Human Rights Commission. The Commission decides whether or not to refer your complaint to the Canadian Human Rights Tribunal. You can call the Commission at 1-888-214-1090.
- Federal prisoners can also call the Office of the Correctional Investigator (OCI) for help: 1-877-885-8848. The ICO can make recommendations to CSC about your treatment. It cannot order CSC to do anything.
- Make sure you keep copies of all of the complaints and grievances you submit. You should also keep a journal of your treatment with dates and names, if you know them.
Who can you go to for help?
- If you are in a provincial prison and need legal advice related to your treatment in prison, you can call Prisoners’ Legal Services at 604-636-0464.
- If you are in a federal prison and need legal advice related to your treatment in prison, you can call Prisoners’ Legal Services at 1-866-577-5245.
- For a free legal assessment of your treatment by police, contact The Catherine White Holman Wellness Centre . Email lawyer@cwhwc.com to book an appointment. CWHWC has a legal clinic for trans and gender diverse people twice a month. There is a waitlist. Clinic lawyers are not able to represent you, but they can give you a list of lawyers who specialize in human rights complaints. If you cannot travel to the Catherine White Holman Wellness Centre, you may be able to set up an appointment by Skype. Another organization called Access Pro Bono has over 75 legal advice clinics throughout the province. Not all Access Pro Bono lawyers will be familiar with trans legal issues. For more information about Access Pro Bono and the programs it offers, or to find a legal advice clinic in your area, go to: accessprobono.caor call: 1-877-762-6664.
- To find a lawyer, call the BC Branch of the Canadian Bar Association at 604-687-3221 or 1-800-663-1919 (Monday to Friday, 8:30am to 4:30pm). They can give you the name of a lawyer who does Human Rights Complaints and Charter cases, and who will have a consultation with you for up to 30 minutes for a fee of $25 plus tax.
- To find the contact information for a lawyer whose name you already know, you can use the Lawyer Lookup tool.
- For help filing a human rights complaint, contact the BC Human Rights Tribunal. They may also be able to represent you. However, there are rules about what cases the Tribunal takes on. Contact them at 604-775-2000 in the Lower Mainland or 1-888-689-8474 in the rest of BC.
Resources:
- Prisoners’ Legal Rights in BC Provincial Prisons by West Coast Prison Justice Society.
- Human Rights in British Columbia Provincial Prisons by West Coast Prison Justice Society.
- Aboriginal Prisoners’ Legal Rights by West Coast Prison Justice Society.
- Youth in Custody: Your Legal Rights by West Coast Prison Justice Society.
- How to Sue the Police and Private Security in Small Claims Court is a step-by-step guide about how to sue the police and private security in small claims court. This guide gives people who have negative experiences with the police have a way to hold police accountable for their actions without having to rely on the current complaint system.
- Making a Complaint Against the Police by the BC Civil Liberties Association.
- Security and You: Interacting with Security Guards that Patrol Property.
- Rights cards to carry with you:
- –Methadone users.
- –Private security guards.
- –Sex work rights.
- Incite has a campaign to reduce law enforcement violence against women and trans people of colour.
- The Human Rights Complaint Process for Transgender People in B.C. by barbara findlay, QC. To download it for free, click here.
