BDSM case under fire

The City Of Vancouver has entered the fray to try to stop the BC Human Rights Tribunal from hearing a case which could find BDSM deserves legal protection from discrimination.

The tribunal was set to hear evidence in the case later this year, after preliminary hearings three months ago.

In her Dec 28 preliminary decision, tribunal member Lindsay Lyster found that protection for sexual orientation currently in BC’s Human Rights Code should be extended to kinky sexual behaviour such as BDSM.

Now, however, the city wants the BC Supreme Court to intervene and declare that sexual orientation is connected to gender and doesn’t include behaviours and practices at all.

According to documents filed Feb 24 in BC Supreme Court by city lawyer David Hill, the city is asking that the court declare that, for the purposes of the provincial Human Rights Code, sexual orientation “means the gender of those to whom an individual’s sexuality is directed.”

The city wants the court to reject Lyster’s finding that sexual orientation includes “bondage and discipline, domination and submission and sadism and masochism.”

In her preliminary ruling, Lyster said: “The ground of sexual orientation is not exclusively status or identity-based, but also protects against discrimination on the basis of behaviours engaged in as a result of a person’s orientation. If it were otherwise, the prohibition on discrimination on the basis of sexual orientation would offer scant protection indeed.”

The city has asked the court to quash Lyster’s order that further hearings be held.

The situation stems from a tribunal case brought by a self-described pagan and BDSM lifestyler.

According to tribunal documents, Peter Hayes had obtained work with a limousine company on May 16, 2005, provisional on his receiving a chauffeur’s permit through the Vancouver Police Department (VPD).

Two days later, Hayes went to the police department where he was met by officer Kevin Barker, who told him he was being denied the permit because of a 2003 complaint by a woman who suggested to the VPD that Hayes was involved in a cult.

Hayes was surprised, as he had received no inquiries from the VPD for a year after the complaint was made.

Hayes asked for details of the complaint but Barker refused to provide them.

Hayes then asked Barker to explain what cult activity he was supposed to be involved in.

Barker allegedly replied that participation in pagan religious activities and domination/submission relationships made him a “danger to society.”

Hayes would pose “an extreme risk” of recruiting passengers into his cult if he were granted a chauffeur’s permit, Barker allegedly added.

“That Mr Hayes suffered an adverse impact as a result of the respondents’ actions is, on the facts alleged, clear, as he was denied a chauffeur’s permit and lost the opportunity to work,” Lyster found in December, before ordering a full hearing into the alleged facts.

Tribunal chairperson Heather MacNaughton says the city wants the Supreme Court to rule that the tribunal was wrong to allow the case to proceed and lacks the authority to interpret the sexual orientation protection of the code so broadly.

“Any complainant, any respondent is entitled to apply for judicial review of a decision,” she says. “They have to persuade the court that we’ve made an error of law.”

In what could possibly be interpreted as a preemptive move, Lyster said in her December decision that the determinations the tribunal must make in the Hayes case are part of its duty to ensure the code remains dynamic rather than frozen.

“To take a more restrictive approach would have the effect of denying those complainants whose complaints may push at the borders of the Code all access to the tribunal and any opportunity to prove their case,” Lyster wrote in her decision. “It would also have the effect of freezing the interpretation of the Code, thereby stopping the dynamic process of the interpretation of human rights norms in its tracks.”

In tribunal documents filed in the city suit, Hayes seems to agree.

In a Sep 9, 2005 letter to the tribunal, he says BDSM lifestylers face the same discrimination homosexuals in general faced in the 1970s.

“They fear being discovered, losing their jobs, being ostracized from their local communities,” he says. “The only reason this happens is because of common social oppression and ignorance of basic human sexuality.

“In most of the world, homosexuals are still fighting for their rights to be themselves…. Here in Canada, we have one of the most fair and honourable systems for the protection of our basic human rights to be ourselves without fear of being mistreated by ignorant and closed-minded persons. But the battle is not over yet.”

Gay city councillor Tim Stevenson says he’s inquired with city manager Judy Rogers about the city’s involvement in the Hayes case but at press time had not heard back from her.

“I’m just vaguely aware of this thing,” he says.

He says the city normally has little control over the police department other than paying the budget and having a single voice on the police board (Mayor Sam Sullivan who is the chair).

“They are like a quasi-military. They do what they feel is the right thing to do,” Stevenson says. “The city politicians can’t say, ‘Stop, don’t do this or don’t do that.'”

The VPD did not return Xtra West’s phone calls.

If the Hayes case goes ahead, it may also ask the tribunal to decide if activities such as BDSM and spiritual practices such as paganism are intertwined and can be considered protected forms of religious practice.