Protecting the rights of trans persons in police custody:
Waterman v. Toronto Police Service, Toronto Police Services Board and
Ministry of Community Safety and Correctional Services
In July 2015, the OHRC intervened in a Human Rights Tribunal of Ontario Application concerning the treatment of trans persons in custody.
The Application was filed by Boyd Kodak, a trans man who alleged that he was discriminated against based on gender identity and expression by both the Toronto Police and the Ministry of Community Safety and Correctional Services (MCSCS). He alleged that he was placed in the women’s sections of both police and correctional facilities; had his gender-affirming articles confiscated; was required to wear women's institutional clothing in the correctional facility, at court, and when he was released; and was exposed to harassment.
Both Mr. Kodak and the OHRC sought systemic remedies that would require the Toronto Police to revise its practices and policies to respect the rights and specific needs and circumstances of trans people.
The OHRC did not seek public interest remedies from MCSCS because after the Application, MCSCS revised its policies on the treatment of trans prisoners, working closely with the trans community and the OHRC.
2016 Settlement Agreement
In 2016, Mr. Kodak, the OHRC and the Toronto Police reached a settlement requiring the Toronto Police to take major steps to address the treatment of trans people in custody.
The Toronto Police must:
- Retain an expert on gender identity issues and policing, mutually agreed to by the Toronto Police and OHRC
- Conduct extensive consultation with the trans community about how the Toronto Police should adjust its practices, deliver training, and monitor the implementation of new policies and procedures
- Develop and publicly post information about written policies, procedures, orders and forms that address how the rights of trans persons should be respected during interactions with the police, including:
- Respecting trans people's self-identification (name, pronouns and gender)
- Lodging trans people in accordance with their self-identified gender identity, to the point of undue hardship
- Conducting respectful searches (including the handling of gender-affirming items and prosthetics)
- Allowing trans people to have clothing and/or personal items that support their gender identity and expression while in custody, to the point of undue hardship
- Protecting trans people from harassment.
- Provide training to all police officers and court security staff on the new Toronto Police policies and procedures;
- Give the OHRC an opportunity to review and comment on the new policies, procedures and training materials
- Develop a plan for ongoing monitoring, evaluation and review of the effectiveness of the new policies, procedures and training related to trans persons, including the option of human rights based data collection.