M to F not a woman: judge

This decision is not only transphobic, it’s a setback for everyone seeking protection from discrimination in BC, barbara findlay says.

The prominent lesbian lawyer is referring to the BC Supreme Court’s recent decision in Rape Relief vs Kimberly Nixon. The court’s Dec 19 ruling overturned an earlier BC human rights tribunal decision granting Nixon this province’s highest-ever award for discrimination damages.

The judicial saga began in 1995 when Nixon, a post-operative male-to-female transsexual, filed a human rights complaint against Rape Relief. Nixon said the rape counselling centre kicked her out of its training program just because she is transsexual.

The centre did not dispute the allegations. Instead it openly admitted that it asked Nixon to leave because she is transsexual and doesn’t meet the organization’s definition of a woman.

Women are people who have been born female and experienced their whole lives as female, Rape Relief maintained. But that’s not discrimination, it argued; women’s groups have a right to organize and set their own membership criteria.

Last January, the tribunal disagreed.

“In my view, it is self-evident” that Rape Relief’s rejection of Nixon was discriminatory, the tribunal ruled, before ordering Rape Relief to pay Nixon $7,500 in damages.

The tribual ruling pleased findlay, who has represented Nixon since she first filed her claim. “The decision will make it clear that it is no more acceptable to say that they cannot imagine working in a rape crisis centre with a transsexual woman, than it would be to say that they cannot imagine working in a rape crisis centre with a woman of colour [or] a lesbian,” she said at the time.

Six months later, Rape Relief appealed, asking the BC Supreme Court for a judicial review of the tribunal’s decision.

Two weeks ago, the court sided with Rape Relief.

First of all, the court said, the tribunal was wrong to call this a case of discrimination. Rape Relief, as a private organization designed to promote the interests of women, has every right to say who counts as a woman for the purposes of joining its group, Justice E Robert Edwards ruled.

The judge is mistaken, findlay says.

What this case really comes down to is who gets to decide who counts as a woman, she explains. Should it be Rape Relief, the state or the woman herself?

“The question of who is a woman can only be answered by the individuals themselves,” findlay insists. Kimberly Nixon identifies as a woman. Even the government recognizes that, since it gave her new, female identification documents, findlay points out.

Though the judge clearly recognized that “Ms Nixon is not a man,” he nevertheless backed Rape Relief’s position that Nixon is not a woman, either.

Rape Relief’s “exclusion of male-to-female transsexuals can be no more discriminatory than [its] exclusion of males, since both males and male-to-female transsexuals represent points on the continuum [of sex] distinct from persons who have experienced their whole lives as female,” the judge said, paraphrasing Rape Relief’s position.

The ruling comes as a big relief to Suzanne Jay, spokesperson for the rape counselling centre. “We’re very happy. This has been a pretty big weight hanging over our heads since 1995,” she says.

This decision confirms that women have a right to organize with their peers, she continues. It’s good to hear “that we didn’t discriminate.”

Not only did Edwards absolve Rape Relief of any discrimination, he practically chastised the tribunal for applying what he called the wrong legal framework in the first place.

The tribunal should have used a more stringent test to determine whether or not any discrimination occurred, Edwards ruled.

Normally, when the BC human rights tribunal hears a complaint about discrimination, all the complainant has to do is prove that he or she was treated differently in breach of the province’s Human Rights Code. Then it’s up to the respondent to prove that they didn’t discriminate.

Now, according to Edwards, tribunals have to apply a different standard-one that puts the onus on complainants to not only prove that they were discriminated against but that they suffered as a result.

And that’s an enormous setback for anyone seeking human rights protection, findlay says.

“If this ruling were allowed to stand it would be a giant step backwards” not only for trans people but for anyone who feels they’ve been discriminated against in this province. In fact, she says, it could “eviscerate” Canadian human rights protection altogether.

The tribunal might agree. When it first considered which discrimination test to use in this case, it examined the one Edwards is now insisting upon and rejected it. The stricter test would alter the path that human rights decisions have been carving out over the last 20 years, it said.

Human rights decisions are supposed to be broad and expansive, findlay explains.

Lawyer John Fisher, former director of Canada’s national gay lobby group, Egale, agrees. Courts and tribunals are supposed to interpret human rights law as broadly as possible in order to “maximize” human rights protections, Fisher told Xtra West last year.

This decision is “mistaken about human rights protection” and how it applies here, findlay says. And the judge’s dismissal of the pain Nixon experienced is particularly flawed, she notes.

In his Dec 19 ruling, Edwards also told the tribunal that it got its injury-to-dignity measurements wrong. In fact, he ruled, the tribunal “unreasonably exaggerates” the pain Nixon suffered as a result of Rape Relief’s decision to exclude her.

“No objective male-to-female transsexual, standing in Ms Nixon’s shoes, could plausibly say: ‘Rape Relief excluded me. [Therefore] I can no longer participate fully in the economic, social and cultural life of the province,” Edwards ruled.

Sure, Rape Relief’s exclusion may have caused Nixon some subjective pain but that doesn’t meet the test of objective damages, he continued.

Findlay vehemently disagrees. “It’s a statement which denies full humanity to trans people,” she says. “I can’t imagine anyone not being humiliated by being expelled, not because of their qualifications but because of who they are.”

The tribunal reached the same conclusion. “Ms Nixon’s evidence about the impact on her of Rape Relief’s refusal to allow her to continue in the training session was compelling,” it ruled last January. “She said that she felt really hurt and humiliated. She was distraught and could not stop crying.

“She felt worthless, hopeless and helpless and that she was not a part of society.”

Edwards dismissed the tribunal’s finding. First he found that a reasonable person in Nixon’s position wouldn’t be hurt by Rape Relief’s treatment. Besides, he added, it’s just Rape Relief; it’s not like she was excluded from an important public body or anything.

“Rape Relief provides access to only a tiny part of the economic, social and cultural life of the province,” he ruled. “Exclusion from its programs is quite evidently exclusion from a backwater, not from the mainstream economic, social and cultural life of the province.

“It may be an important backwater to its members and to Ms Nixon but that is a subjective assessment,” he added.

Now that’s just insulting, says findlay.

“Women’s organizations [are] a vital and important part of the political life of British Columbia. It’s insulting to the women’s movement to characterize this as a small, private fight. The women’s movement matters; exclusion from the women’s movement matters.”

This is a transphobic ruling, she concludes-and she plans to appeal it all the way to the Supreme Court of Canada if necessary.

KIMBERLY NIXON DEFENCE FUND

Care of barbara findlay.

635-1033 Davie St.

Vancouver, BC.

V6E 1M7.