Judge refuses to order transgender inmate be moved to women's prison

A try has ruled against a transgendered inmate with a lengthy register of sexual urge crimes involving women, refusing her call for to order the Correctional Service of Canada to move her from the men’s prison system into a women’s institution.

Amanda Cooper, who has been incarcerated as a dangerous offender since 2001 for crimes committed when she identified as a man, underwent full gender surgery two years ago, and argued she feared for her safety in a men’s prison and was in self-imposed isolation.

Correctional authorities, however, refused the 59-year-old’s requests to move to a women’s institution, citing her risk and the safety of other women inmates. Cooper filed for a judicial review, which was heard last month in Federal Court in a virtual hearing out of Halifax. 

“It is not without some reluctance that I thus dismiss this judicial review application, because it means leaving Ms. Cooper, a woman, in a male institution,” Justice Janet Fuhrer said in a decision released this week. 

“These reasons and judgment should not be viewed, however, as any kind of blanket determination that a transgender or gender-diverse inmate who is designated as a [dangerous offender] cannot be transferred to an institution that aligns with their gender identity, and that may happen eventually for Ms. Cooper. Each such case will depend on their unique circumstances.”

Roughly one per cent of federal inmates identify as gender diverse, according to figures provided by Corrections Canada. As of October, there were 90 who identified as transgender women, with 17 incarcerated in women’s facilities and the remainder in men’s institutions.

Cooper committed most of her crimes in the Montreal area. Since then, she has been incarcerated in men’s prisons. Last year, she was moved to the Millhaven Institution in Kingston, Ont., from the Atlantic Institution in Renous, N.B.

Her Nova Scotia lawyer, Jessica Rose, argued that correctional policy dictates that offenders are placed according to their gender identity. If there are health or safety concerns, the lawyer argued the fallback plan is to place an offender according to their sex. In the case of Cooper, her sex is now considered female under correctional policy, the lawyer said.

But in examining correctional policies related to involuntary transfers and returning offenders, Fuhrer disagreed that sex was a determinative factor. The judge ruled the transfer to Millhaven Institution will stand and dismissed Cooper’s bid for a judicial review.

Fuhrer’s decision detailed a catalogue of sex crimes committed by Cooper. Those include attacking strangers in parking lots and at a bus stop in the 1990s. While incarcerated, she has been accused of sexually assaulting correctional and parole staff. 

Last year, she became increasingly verbally abusive, according to an affidavit from a correctional official. She was fixated on a particular female staff member, and was denied access to a number of others due to “inappropriate behaviour and comments,” the judge said.

"The evidence discloses a pattern of escalating aggressive, violent behaviour, mostly toward women, by Ms. Cooper," Fuhrer wrote.

According to the ruling, Cooper admitted she had many more victims than indicated by her criminal convictions. When she arrived at Atlantic Institution following her gender surgery, she was apparently hiding razor blades in her sneakers, the judge said.

A sex offender receives gender surgery. A court will decide if she should be transferred to a women’s prison

Judge refuses to move transgender inmate to women’s prison ahead of judicial review

Cooper’s lawyer also made a Charter argument in court, but the judge said it had not been made to the correctional official who approved the transfer to Millhaven.

“Further, while I do not disagree with the principle that the applicable policies must conform to the Charter and that their interpretation may be informed by international law, I note that Ms. Cooper has not demonstrated that this necessarily means that she must be placed in a women’s penitentiary,” Fuhrer wrote. 

“She has not shown how her gender identity is not being respected or how her safety is not being safeguarded.”

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