Makayla Sandve identifies as a woman.
As such, Sandve wanted to be moved out of the Surrey Pretrial Services Centre.
Surrey Pretrial is a jail for men awaiting court trials.
After identifying as female by gender, Sandve repeatedly requested to be transferred to the Alouette Correctional Centre for Women (ACCW).
However, B.C. Corrections refused.
This happened despite the agency’s transgender policy that allows it to do a prison transfer based on gender identity.
Sandve believes that the rejection constituted discrimination based on gender identity, gender expression and sex contrary to the B.C. Human Rights Code.
As a result, Sandve filed a complaint before the B.C. Human Rights Tribunal.
B.C. Corrections applied to have the complaint dismissed without hearing, denying it discriminated against the former inmate.
Tribunal member Amber Prince was not convinced by the provincial jailer.
In reasons for decision issued Wednesday (March 3), Prince wrote that a hearing is warranted on Sandve’s complaint.
“If there were overriding and unresolvable health and safety concerns that prevented Ms. Sandve’s timely transfer to ACCW, that evidence is not before me,” Prince wrote.
Sandve was incarcerated at Surrey Pretrial from October 24, 2017 to January 22, 2018.
Sandve identified as female on November 20, 2017.
The inmate on that day filled out a B.C. Corrections request form, stating: “I am a female and wish to be treated as such. I’d like access to female clothing and also I’d like to be transferred to ACCW.”
Sandve told the tribunal about being detained at a sectioned-off area of the jail.
“While separately confined, she says male inmates slipped offensive and derogatory notes and drawings under her door, and asked her for sexual favours,” Prince related.
While in jail, Sandve was strip-frisked by male staff.
When Sandve asked for a female guard to do a frisk, a woman on duty allegedly said something like: "eww, I’m not doing it”.
The female guard also supposedly told Sandve that the inmate is "not really transgender".
The tribunal member noted that B.C. Corrections’ transgender policy states that “self‐identification is the primary consideration in identifying a transgender individual”.
The policy also provides: “Transgender inmates are placed in a correctional centre according to their self‐identified gender or housing preference, unless there are overriding health and/or safety concerns which cannot be resolved.”
Moreover, “Correctional staff ensure that an individual is transferred, as soon as possible, if the current centre cannot accommodate his/her self‐identified gender or housing preference.”
According to Prince, Sandve remained at Surrey Pretrial despite repeated requests to be transferred to the Alouette jail for women.
“I am left to wonder: Why was Ms. Sandve not transferred to ACCW, as soon as possible, per the Transgender Policy?” Prince asked in the reasons for decision.
“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?” Prince continued.
According to Prince, B.C. Corrections has not explained why it could “not reasonably transfer” the inmate to Alouette.
“To infer, without evidence, that Ms. Sandve should be treated as a male dangerous to female inmates engages in questionable biological determinism,” Prince wrote.
Also, the provincial jailer did not provide evidence that confining Sandve in a men’s jail was the only option.
“It is not reasonably certain that BC Corrections would have experienced undue hardship by transferring Ms. Sandve to ACCW,” Prince wrote.