Sunday, October 26, 2008

Subjective Policy

On the surface, it appears as though this policy protects the transgendered inmate; however, when we dig deeper it becomes clear that this policy is very much subjective and open to interpretation. The policy is not uniform, and for that reason, allegations exclusive to transgender individuals are dealt with on a case by case basis. Furthermore, even if laws were uniform, transgender inmates face differential treatment which is associated with staff ideology.
Before 1918, the laws between provinces were dissimilar and in some cases, contrasting. This problem called for a conference with the intention of harmonizing the laws of the provinces and territories of Canada in 1918. This conference is now held annually in order to identify deficiencies, defects and gaps in existing law. The civil system which constitutes of lawyers, judges, analysts and law reformers meet to discuss possible areas in which provincial and territorial laws would benefit from harmonization. Uniform statutes are drafted by legislative counsel and effective immediately.
Critically speaking, the answer may not lie in trying to create a rigid, obstinate and objective legal system because human beings are multifaceted and complex. We are by nature subjective beings, and according to Niklas Luhmann, this awareness has allowed for the “personalization” of law to occur over time. This process takes into account environmental and individual factors and sees a need to move beyond this concept of a universal and uniform law. Niklas Luhmann’s concept is particularly useful to keep in mind as we enter a time when law and policy is being required to evolve to accommodate for lesbian, gay, bi-sexual and transgender individuals. The assimilation of transgender inmate’s into a prison setting which strictly accommodates toward heterosexual inmates and their values is no longer acceptable. What is needed is recognition of the diversity within institutions and the creation of policy with difference in mind.
Everything considered, it becomes open to discussion whether uniform law and policy are realities, as much as they may be aspirations.

For more information on the Uniform Law Conference of Canada, please visit their website at

No comments:

Post a Comment