Murder case highlights questions around trans inmates

Correctional Service Canada policy can deny women’s prison based on assessment of offender

What happened to Rhoderie Estrada is “the stuff of nightmares,” a judge said in sentencing her killers to life in prison last week.

The 41-year-old dialysis nurse “was attacked and killed by two intruders, total strangers, in her bedroom in the middle of the night in the family home that she had every reason to think was secure while her three young daughters were sleeping down the hall,” Superior Court Justice Ian MacDonnell said.

He found that Yostin Murillo and David Beak found Estrada alone in her bedroom and sexually assaulted her. When she resisted, they killed her — striking her in the head at least eight times with metal bars, leaving her face unrecognizable to her husband when he came home later that night.

Now Murillo and Beak will be transferred from provincial jail, where they have been held since their arrest in 2018, to federal prison, where they will serve their life sentences. After an intake assessment, they will almost certainly be placed in a maximum-security facility.

For Murillo, however, that assessment will likely confront an additional and extremely rare question — can a convicted criminal be too dangerous to go to a women’s prison?

Canada’s federal prison system has for years struggled with how to treat transgender inmates. Both prisoner-rights advocates and the current prison policy agree that they should be incarcerated in a facility that matches their gender identity.

There is, however, an exception to the policy, one that allows the Correctional Service Canada to deny someone transfer to a women’s prison where there are “overriding health or safety concerns which cannot be resolved.”

For CSC, the caveat is justified by the limitations of less-secure women’s prisons. To prisoner rights advocates, it shows clear discrimination against trans women who, when incarcerated in men’s prisons, are at high risk for repeated physical and sexual violence, harassment and long periods spent in isolation.

With a violent criminal record that, in addition to a brutal sex assault and murder, includes outstanding charges for assaulting a woman with a metal bar and security guard with a wrench, Murillo’s case is an extreme example where that exception may be invoked.

Murillo was transferred to a women’s jail in the provincial system earlier this

year, a few months before the trial began in July, in keeping with Ontario’s policy to place inmates in jails corresponding with their gender identity, unless they choose otherwise.

(Murillo lawyers requested that his jury not be informed of the transfer, and Murillo was referred to as a man and by male pronouns both during trial and after the verdict at sentencing. After the trial, Murillo’s lawyer Brian Ross declined to comment on whether his client wished to be referred to differently going forward.)

Like Ontario’s policy for provincial jails, the interim policy for federal prisons introduced in 2017 requires that inmates be placed in prisons in keeping with their gender identity, “regardless of their anatomy or identification documents.”

The 2017 rule replaced a policy based entirely on whether the inmate had had gender-affirming surgery. But the placement of trans offenders is still done on a “case-by-case basis as part of a thorough intake process to ensure that appropriate measures are taken to respect the dignity, rights and safety of all offenders, including consideration of the offender’s health needs, security concerns, access to correctional interventions, and support in the community,” a CSC spokesperson said.

CSC did not comment specifically on Murillo’s case, citing privacy.

For prisoner-rights activists, however, the exception is both inherently discriminatory to trans women and reliant on biological determinism rather than the specific circumstances of the inmate.

“Cisgender women don’t have to prove they are not going to pose a safety to risk to other women, even if their crimes have to do with violence against women,” said Jennifer Metcalfe, executive director of Prisoners’ Legal Services. “If the person poses a safety risk then that can be managed using security classification levels within the institution that corresponds with the person’s gender.”

Canada’s prison system does, after all, have maximum-security facilities for both men and women. Surely, a women’s facility should also be capable of managing the highest-risk cases, she said.

The criteria for the exception is also poorly defined, and the risk assessment is often based on speculation and stereotypes, she said, explaining that the result is some trans women languish in men’s prisons, where they are more likely to be subjected to violence and harassment from both inmates and guards.

The 2017 policy change also provoked backlash from transphobic and other groups who argued it undermines the safety of women’s institutions to admit trans women, particularly those who have been convicted of sexual assault or violent offences. Earlier this year, a group of current and former women prisoners called for a ban on trans women being transferred to women’s institutions, claiming that predatory men are exploiting the policy in order to victimize women.

The Office of the Correctional Investigator’s 2020 report found that sexual violence in prison is a serious issue that is under-reported and poorly tracked, with limited data about perpetrators. The report found that transgender inmates are at high risk of sexual victimization and discrimination and recommended a specific strategy to protect LGBTQ individuals.

CSC has defended the security exception in court, arguing women’s prisons are designed to be less secure than men’s — in part to reflect that women are not considered as physically dangerous as men and have almost always been subjected to trauma and violence — and are therefore not capable of accommodating some trans women who have been classified as high-risk.

In 2019, Federal court Justice Sebastien Grammond found the government was wrong to deny transfer to a trans woman who had been deemed too high a security risk. The government presented no evidence that trans women, in general, pose a greater security risk than cisgender women, Grammond found, cautioning against speculation, which he called a “fertile ground for discriminatory prejudice.”

The government had argued that “considering the infrastructure of women’s institutions, the escape risk of a person with male anatomy, even though she identifies as a woman and is transitioning to become a woman, can be different simply by virtue of her physical capabilities and muscular strength associated with her male chromosomes.”

In his ruling, Grammond criticized the government position as amounting to the claim that “we should not consider trans women inmates as women because the risk they actually present is that which is associated with their biological sex” — pointing out that under the current policy even an inmate who had had gender-affirming surgery prior to incarceration would still require an assessment before being placed in a women’s institution.

“In short, for (CSC), chromosomes take precedence over gender identity or expression,” he wrote.

That inmate, Jamie Boulachanis, had been convicted of firstdegree murder in Montreal in

2016 and was classified as a high risk of escape following previous escape attempts. She was diagnosed with gender dysphoria in 2018 while in custody at a maximum-security men’s prison but was repeatedly denied requests to transfer to a woman’s prison. After receiving “threats against her life and safety” and being placed in segregation, she filed for an injunction at the federal court.

Grammond ordered her transfer but noted the possibility of a different outcome had Boulachanis been deemed, for example, a dangerous offender with a high likelihood of violent reoffending.

However, his ruling was overturned by the Federal Court of Appeal, which agreed with the federal government’s argument that Boulachanis did pose an escape risk that could not be accommodated in a women’s prison, even one that is maximum-security. CSC determined that facility would be only the equivalent of a men’s medium-security prison, the judge noted.

Boulachanis was subsequently transferred to a different maximum-security men’s institution where she was held in segregation and later testified she was subjected to sexual violence and harassment. CSC transferred her to a women’s prison earlier this year after she underwent gender-affirming surgery.

One of her lawyers, Sylvie Bordelais, said no reason was provided by CSC for why her surgery would instantly change that risk assessment. “One day she was too dangerous to be in a women’s institution. The following day she had to be in a women’s institution,” Bordelais noted.

“Even though CSC pretends they are trying to respect the charter and gender identity, basically whenever there is a security issue they can grab on to they will refrain from following the choice of the person.”

Lawyer Alexandra Paquette, who represented Boulachanis at the federal court, said CSC continues to make similar arguments in another case where her client is being denied a transfer to a women’s prison because she is considered an escape risk.

These cases show CSC “hides behind the (security) exception,” she said, adding that despite the new policies, the culture in Canadian prisons remains focused on surgery rather than gender identity.

“When I took Jamie’s case in 2017, I read the interim policy and was like, OK that’s easy,” she recalled. “Next thing you know we’re in 2021 and she was still suffering.”

CSC’s 2017 policy is still an interim rule, and the service is in the process of developing its guidelines for the “management of offenders with gender identity or expression considerations.”

If it was up to Metcalfe, the security exception would be eliminated, even in extreme cases like Murillo’s.

Any safety risk posed by the inmate should be able to be managed by CSC in the institution that corresponds with their gender identity, she said.

Last year, Prisoners’ Legal Services provided feedback on a draft of the new policy and expressed concern that it weakens some rights of trans inmates, including the right to be strip-searched by a guard of the same gender, and for privacy accommodations for showering.

The policies also clearly must take into account the safety and well-being of trans women, something the newer draft doesn’t make explicit, she said.

“We got to a certain point with a policy that wasn’t perfect,” Metcalfe said. “Now they seem to be pulling back even on that policy instead of catching up to where we are in society and the general level of understanding about gender identity and expression.”