Complicating trans access

Human rights complaints against businesses or organizations denying washroom or changeroom access to trans people usually follow a predictable storyline, with the complainant looking to gain access to an area designated for the gender to which they are transitioning. But an ongoing complaint against the YMCA is charting new territory.

In 2004 Juan Carlos Colmenares — who also goes by the name Maria Dolores Colmenares but is perhaps best known as performance artist Lola Banana — became a member at the Metro Central Y on Grosvenor St. Although she uses female pronouns and presents as a woman Colmenares says she’s a man and wants access to the men’s areas of the facility.

“My legal sexual identification is male,” says Colmenares. “Before, yes, I do therapy in the Montreal general hospital in the clinic of sexuality. I make the therapy for three years with psychologists and sexologists… but I discovered for myself that is not true for me.”

Colmenares says in 2004 she used the Y’s men’s changeroom, whirlpool and steam room because that’s where she felt most comfortable. She says she was subsequently told by YMCA staff that she couldn’t be entirely naked in either of the gender-segregated areas. She says she was presented with the options of either using the women’s areas and keeping her penis covered, using the men’s area and keeping her breasts covered or using a private change room. Colmenares says she wasn’t happy with any of those options.

“I’m a man who has breasts and a penis so maybe people are not used to seeing that,” says Colmenares, “but you can’t set me apart because of my physical appearance.”

Colmenares claims her membership was revoked when she declined to abide by any of the options outlined to her; she filed a complaint with the Ontario Human Rights Commission (OHRC) later that year.

“I want a public apology for what you’re doing to me because it’s not the first time,” says Colmenares, referring to a 1999 complaint against Toronto’s West End Y in which a trans woman was denied access to the women’s changerooms. “You want to force people to be in a place where they don’t want to be. You don’t learn from experience, doing the same thing only the opposite.”

She says she doesn’t think she should have to cover up any part of her body in a changeroom.

“I’m a naturalist, I like to be naked. One million people and I’m almost naked,” she says, referring to her numerous topless appearances in Pride festivities. “Why at the YMCA am I going to cover my breasts to take a shower?”

She adds that since her experience at the Central Y she’s been allowed access to men’s-only areas at two other fitness centres — Goodlife in Toronto and the Guy-Favreau branch of the YMCA in Montreal.

“During his/her membership here Maria Dolores was using the men’s locker room to change for his/her sporting activities,” reads a letter from Guy-Favreau director Johanne Giguère dated July 2007 and submitted to the OHRC. “At first we received a few comments from the male members but after having explained the situation to these members they adjusted well to the situation and accepted his/her presence.”

Steven Heipel, vice president of communications for the YMCA of Greater Toronto, declined to comment on the specifics of Colmenares’ situation.

“For reasons of confidentiality I am not going to discuss the specifics of this case, whether or not the individual has chosen to speak publicly,” stated Heipel by email. “That said, the YMCA of Greater Toronto has a number of transgendered individuals who are members in our health, fitness and recreation centres. We are sensitive to their particular needs and work carefully to ensure that these needs are accommodated.

“Our practice, which is in keeping with the human rights code, is that transgendered individuals may use the changeroom of the gender with which they identify, regardless of what gender-specific physical characteristics they have or do not have.”

A pamphlet produced by OHRC titled “Gender Identity: Your Rights and Responsibilities” states that “individuals should be given access to the washroom and change facilities that match their lived gender, unless they request other accommodation (such as for safety or privacy reasons).”

Elsewhere, in the OHRC’s 1999 discussion paper “Toward a Commission Policy on Gender Identity,” it states that trans people should be able to use the facilities of their “felt gender” and that “use of facilities should not cause a problem unless standards of public decency… are breached.”

The case, which was referred to the Human Rights Tribunal of Ontario in October 2007, is currently in mediation.