A “nightmare” murder trial in Toronto has ended. What follows highlights one of the toughest questions facing Canadian prisons.

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

The 41-year-old dialysis nurse “was attacked and killed by two totally unknown intruders in her room in the middle of the night at the family home who had every reason to think she was safe while her three young daughters slept. the hallway, ”Superior Court Judge Ian MacDonnell said.

He discovered that Yostin Murillo and David Beak found Estrada alone in her room and sexually assaulted her. When she resisted, they killed her, hitting her on 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 the provincial jail, where they have been detained since their arrest in 2018, to the federal prison, where they will serve a life sentence. After an admission evaluation, it is almost certain that they will be placed in a maximum security facility.

For Murillo, however, that assessment will likely face 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 struggled for years with how to treat transgender inmates. Both defenders of prisoners’ rights and current prison policy agree that they should be incarcerated in a facility that matches their gender identity.

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

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

With a violent criminal record that, in addition to brutal sexual assault and murder, includes pending charges for assaulting a woman with a metal bar and a security guard with a wrench, Murillo’s case is an extreme example in which one can invoke that exception.

Murillo was transferred to a women’s prison in the provincial system earlier this year, a few months before the trial began in July, in accordance with Ontario’s policy of placing female inmates in prisons corresponding to their gender identity, unless they choose otherwise.

(Murillo’s attorneys requested that his jury not be informed of the transfer, and Murillo was referred to as a male and with masculine pronouns both during the trial and after the verdict at sentencing. After the trial, Murillo’s attorney, Brian Ross, declined to comment on whether his client wanted to be mentioned differently in the future.)

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

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

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

For inmate rights activists, however, the exception is inherently discriminatory for trans women and depends on biological determinism rather than the specific circumstances of the inmate.

“Cisgender women do not have to show that they will not pose a safety risk to other women, even if their crimes involve violence against women,” said Jennifer Metcalfe, executive director of Prisoners’ Legal Services. “If the person presents a security risk, then that can be managed using levels of security classification within the institution that correspond to the gender of the person.”

After all, Canada’s prison system has maximum security facilities for both sexes. Surely, a women’s facility should also be able to handle higher-risk cases, she said.

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

The 2017 policy change also sparked a backlash from transphobic groups and others who argued that it undermines the security of women’s institutions to admit trans women, particularly those who have been convicted of sexual assault or violent crimes. Earlier this year, a group of current and former female prisoners called for a ban on trans women from being transferred to women’s institutions, claiming that male predators are exploiting politics to victimize women.

The 2020 report from the Office of Correctional Investigator found that sexual violence in prison is a serious problem that is underreported and poorly tracked, with limited data on perpetrators. The report found that transgender inmates are at high risk of sexual victimization and discrimination and recommended a specific strategy to protect LGBTQ people.

CSC has defended the security exception in court, arguing that 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 to trauma and violence, and therefore they are not. able to house some trans women who have been classified as high risk.

In 2019, federal court judge Sebastien Grammond found that the government was wrong in denying the transfer to a trans woman who had been deemed too high a security risk. The government did not present evidence that trans women, in general, pose a greater security risk than cisgender women, Grammond found, warning against speculation, which he called “fertile ground for discriminatory bias.”

The government had argued that “considering the infrastructure of women’s institutions, the risk of escape for a person with a male anatomy, even if he identifies as a woman and is in transition to become a woman, may be different simply by virtue of his physical capabilities. and muscular. strength associated with their male chromosomes. “

In his ruling, Grammond criticized the government’s position for stating that “we should not consider trans inmates as women because the risk they really present is that associated with their biological sex,” noting that under current policy even a prisoner who had been undergoing gender affirming surgery prior to incarceration would still require an evaluation before being placed in an institution for women.

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

That inmate, Jamie Boulachanis, had been convicted of first-degree murder in Montreal in 2016 and was classified as a high escape risk following previous escape attempts. She was diagnosed with gender dysphoria in 2018 while in custody at a maximum security men’s prison, but repeatedly denied requests to transfer to the women’s prison. After receiving “threats against her life and safety” and being placed in segregation, she applied for a court order in federal court.

Grammond ordered his transfer, but pointed to the possibility of a different outcome if Boulachanis had been considered, for example, a dangerous offender with a high probability of violent recidivism.

However, its ruling was overturned by the Federal Court of Appeals, which agreed with the federal government’s argument that Boulachanis did pose a flight risk that could not be housed in a women’s prison, not even a maximum prison. security. CSC determined that the facility would be only the equivalent of a medium-security prison for men, the judge noted.

Later, Boulachanis was transferred to another institution for maximum security men, where she was held in segregation and later declared that she was subjected to sexual violence and harassment. CSC transferred her to the women’s prison earlier this year after she underwent gender-affirming surgery.

One of his attorneys, Sylvie Bordelais, said CSC did not provide any reason why her surgery would instantly change that risk assessment. “One day it was too dangerous to be in a women’s institution. The next day I had to be in a women’s institution, ”Bordelais pointed out.

“Even though CSC pretends they are trying to respect the charter and gender identity, basically as long as there is a security issue that they can hold onto, they will refrain from following the person’s choice.”

Attorney Alexandra Paquette, who represented Boulachanis in federal court, said CSC continues to make similar arguments in another case in which its client is denied transfer to a women’s prison. because it is considered a flight risk.

These cases show that CSC “hides behind the (security) exception,” he 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 said, okay, that’s easy,” he recalled. “The next thing you know, we are in 2021 and she was still suffering.”

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

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

Any security risk presented by the inmate must be able to be managed by CSC in the institution that corresponds to his gender identity, he said.

Last year, Prisoner Legal Services provided comments on a draft of the new policy and expressed concern that it undermines some rights for trans inmates, including the right to be searched by a same-gender guard, and to privacy accommodations. To take a shower. . Policies must also clearly take into account the safety and well-being of trans women, something the most recent draft does not make explicit, she said.

“We got to a certain point with a policy that was not perfect,” Metcalfe said. “Now they seem to be regressing even in that policy rather than catching up on where we are in society and the general level of understanding about gender identity and expression.”