December 15, 2005
By Gilles Marchildon
Discrimination is discrimination:
Court decision in B.C. a step back on trans rights
On December 7, three judges of the B.C. Court of Appeal gave their blessing to a clear case of discrimination. Shame on them and their faulty interpretation of the law.
The Court dismissed the appeal by Kimberly Nixon in the case of Nixon v. Vancouver Rape Relief Society.
Kimberly is a transsexual woman. Herself a victim of violence by a male partner, she had received support from the Battered Women’s Support Services (BWSS).
In 1995, Kimberly wanted to make a contribution back to the feminist anti-violence movement so she began volunteer training at Vancouver Rape Relief (VRR). At the second session, a trainer called her aside and asked Kimberly about her gender identity.
When Kimberly revealed that she was a trans woman, the trainer asked her to leave the session. Kimberly then filed a human rights complaint against VRR.
In the mean time, she volunteered at the BWSS and at Peggy’s Place, a women’s transition house. These two organizations, like VRR, had women-only hiring policies for paid and volunteer positions, but they did not exclude trans women. Kimberly was welcome.
Kimberly’s initial human rights complaint was successful, with the B.C. Human Rights Tribunal ordering VRR to pay her $7,500. But that decision was overturned by the B.C. Supreme Court.
Kimberly further appealed and that decision was announced December 7. (The judgment is available at http://tinyurl.com/d435k.)
Although the B.C. Court of Appeal held that the behaviour of Rape Relief in excluding transsexual women constituted discrimination under the Human Rights Code, it nevertheless ruled that s.41 of the Code permits a women’s service organization to discriminate against a sub-group of women, namely transsexual women, based on its own subjective wishes.
The B.C. Court of Appeal is the highest level of court in Canada ever to rule on a case of discrimination against a transsexual person. Unfortunately, they got it wrong.
If women’s groups can exclude women based on their trans status, what is to prevent them from excluding other women based on race, religion or sexual orientation? Discrimination based on a person’s intrinsic nature or personal circumstances is just plain wrong.
In the words of Cynthia Petersen, a human rights lawyer who has argued before the country top courts, the decision “allows certain groups to discriminate internally within the communities they are created to serve.”
Should Kimberly pursue it - and hopefully she does - the case might be heard by the Supreme Court of Canada.
Canada’s top court might more wisely conclude that while women are allowed to create women-only spaces, the fact is that trans women are women. Excluding trans women from women-only spaces is discrimination.
VRR should not fear that this means men will flock to rape centres. Allowing trans women does not mean giving access to men in women-only spaces.
The B.C. Court of Appeal decision is a set-back for trans equality rights. It does, however, reinforce the need for explicit inclusion of trans people in human rights legislation across the country and in federal law, as the North-West Territory adopted in 2002.