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Court rules BDSM case can be heard

Judges reject claim that kinky sex not protected

HAPPY TO BE HEARD. Professor Silva Tenenbein applauds the BC Court of Appeal's Apr 8 decision to allow a complaint of discrimination on the basis of BDSM practices to be heard. Credit: Nathaniel Christopher photo

The BC Court of Appeal has ruled that the province’s Human Rights Tribunal can resume hearing a complaint of alleged discrimination on the basis of BDSM practices to determine whether BDSM is protected from discrimination under the Human Rights Code and, if so, whether any discrimination took place in this case.

In an Apr 8 decision, Justice Anne Rowles ruled that the BC Human Rights Tribunal was right to agree to hear a complaint from a man who alleges the Vancouver Police Department (VPD) discriminated against him on the basis of his preference for sadomasochistic sex, bondage and discipline.

The VPD argued that the tribunal should have dismissed the complaint outright because BDSM isn’t protected from discrimination under the BC Human Rights Code.

The Court of Appeal rejected the VPD’s argument, finding the Human Rights Tribunal did not exceed its jurisdiction in agreeing to hear Peter Hayes’ complaint.

In her initial finding in December 2005, Human Rights Tribunal member Lindsay Lyster found that protection for sexual orientation currently in BC’s Human Rights Code could extend to kinky sexual behaviour such as BDSM, though she admitted she wasn’t certain.

“Neither the precise nature of Mr Hayes’ lifestyle practices “and preferences, nor the parties’ use of the term ‘BDSM’ or other related terms is absolutely clear on the materials before me,” Lyster wrote at the time.

However, she found that “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,” Lyster wrote, “the prohibition on discrimination on the basis of sexual orientation would offer scant protection indeed.”

She therefore agreed to hear the case.

The VPD appealed Lyster’s decision, arguing that sexual orientation protection should extend exclusively to people who identify as attracted to others of the same sex, as opposed to covering specific sexual practices.

According to documents filed in BC Supreme Court in February 2006 by city lawyer David Hill, the city (representing the VPD) asked the court to 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 BC Supreme Court dismissed the VPD’s appeal in June 2006. Earlier this month, the BC Court of Appeal followed suit.

Though the appeal court stopped short of finding that BDSM qualifies for protection from discrimination under the Code’s sexual orientation category, it ruled that in cases such as this one, where the alleged complaint may fall under the tribunal’s jurisdiction, the tribunal should hear the case and then decide.

“How can the tribunal determine if BDSM falls within the meaning of ‘sexual orientation’ if it does not have a full understanding of what BDSM means?” Rowles asked.

“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 noted in her 2005 preliminary 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.”

According to tribunal documents, Hayes obtained work with a limousine company on May 16, 2005, provisional on his receiving a chauffeur’s permit through the VPD.

Two days later, Hayes went to the police department where he was met by officer Kevin Barker, who allegedly 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 allegedly 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 2005, before ordering a full hearing into the facts alleged.

Professor Silva Tenenbein lectures on sexual orientation and the social construction of identity at Simon Fraser University. She says what Hayes does in his off-hours has nothing to do with his ability to safely drive passengers around.

Tenenbein, who has been a BDSM player herself for more than 25 years, supports the court’s decision to allow Hayes’ complaint to be heard.

“If we really think about it, BDSM is a sexual orientation,” she says. “BDSM is a form of arousal for some people.”

And a person’s sexual orientation has nothing to do with their ability to drive a limousine, she points out. “If a cab driver is gay, it doesn’t endanger his or her passengers because it has nothing to do with their relationship.”

Whether someone is into vanilla sex or BDSM, it generally has little to do with their working lives, Tenenbein continues.

Besides, she notes, “people who do BDSM never do anything without negotiation. It’s a form of intimacy. It’s not just something anybody does with anybody.”

Grace Pastine, litigation director of the BC Civil Liberties Association (BCCLA), also applauds the Court of Appeal decision.

“This decision allows the tribunal to consider the issue based on facts and a full evidentiary record, rather than dismissing the complaint out of hand,” she says.

The BCCLA intervened in the case to support the hearing proceeding.

“Human rights legislation is frequently interpreted more expansively over time in response to changing social conditions,” Pastine notes.

A date has not yet been set for the BC Human Rights Tribunal to resume hearing Hayes’ complaint.

But because it is still before the courts, VPD spokesperson Const Tim Fanning refused to comment on the case.

In a Sep 9, 2005 letter to the tribunal, Hayes wrote BDSM players 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.”