4 min

Man, I feel like a woman

Nixon decision says passing is important

Credit: Robin Perelle

The 19th-Century nursery rhyme says that little girls are made of sugar and spice and all things nice, but determining gender just isn’t so easy.

In a decision handed down by the Supreme Court Of British Columbia last month, Justice ERA Edwards ruled that Kimberly Nixon – who has lived full-time as a woman since 1989, had genital reassignment surgery in 1990, a changed name and even a change of gender on her birth certificate – doesn’t qualify as a female by the criteria of the Vancouver Rape Relief Society. Edwards accepted Rape Relief’s argument that Nixon wasn’t “woman enough” to provide counselling services because she wasn’t born female.

The decision, which overturns a 2002 BC Human Rights Tribunal ruling in favour of Nixon, is the continuation of a legal struggle dating back to 1995, when Nixon was asked to leave a Rape Relief counsellor training session because she was not born a woman. Nixon had previously experienced physical and emotional abuse from a male partner and wanted to be able to provide support to other women. That tribunal awarded Nixon $7,500 in damages, which Edwards has overruled.

Though Nixon is likely to appeal the decision, the case raises larger issues: Who gets to decide who’s a woman and who’s not? With Edwards ruling that genitals and a birth certificate don’t necessarily make someone a woman, what does?

“The judge found that Kimberly was not a woman because she was not accepted as a woman by Rape Relief,” says Joshua Mira Goldberg, a trans man living in Vancouver who has been following the case.

“Asserting that a dominant power – the state, an institution, an organization – has supremacy to determine and define a person’s identity could have horrendous ramifications for aboriginal people, people fighting for compensation for government violence – for example, internment of Japanese people and Doukhobor children – and others fighting for recognition and rights.”

Nixon’s lawyer barbara findlay says the judge gave Nixon no leeway at all.

“You can see that the judge decided against Kimberly in pretty much every single way he was able to do so,” says findlay. “There was no part of the judgment that was in her favour. Not one line. It stands as a judgment that is not only harmful for transgendered people, but it eviscerates protection on human rights grounds for all kind of people, including people with disabilities and women.”

Edwards did acknowledge that Nixon’s presentation as a woman “was not bogus. She was not a man in disguise.”

The case was centred mostly on the meaning of the word “woman” and the ability of transsexuals to pass scrutiny in a transitioned gender. Because male-to-female (MTF) transsexuals could be perceived as male by clients, Edwards said it was okay for Rape Relief to ban them – they could be seen as threatening or “unwelcome confidantes” by women traumatized by male violence.

At the same time, Rape Relief has stated that staff wouldn’t ban an FTM or a butch lesbian from providing counselling services.

“An FTM does have a shared life experience with women,” says Suzanne Jay, a rape crisis counsellor with Rape Relief. “The question is whether she or he would want to [volunteer].

“Lesbians have played a pretty important role in maintaining and growing this organization. We try to make room for women’s personal styles. If its something that one of us judges to be triggering or disturbing, we talk about it.”

But Goldberg says that the whole point of human rights legislation is that people should be judged based on their capabilities, not on things like appearance or cultural practices.

“The judge’s finding that it is legitimate to make decisions based on a person’s history and appearance undermines human rights generally, not only for trans people but for all people,” says Goldberg.

Rape Relief and findlay are split on what this means for other organizations. The good news, findlay says, is that most women’s organizations have come to understand that protections for women mean protections for all women and have developed policies that include transsexual women.

Jay says that while it’s true that many women’s organizations adopted trans inclusive policies, some women from those organizations have told Rape Relief privately that they didn’t support the inclusive policies. She hopes that this decision will make it possible for more organizations to redefine their policies to be more honest.

At the same time, a recent study of 62 sexual assault centres and transition centres in British Columbia found that 45 of them are accessible to trans women.

“This may be a bit of a surprise given Rape Relief’s visibility,” says Goldberg. “However, they do not come close to representing the majority opinion held by anti-violence agencies or women’s agencies in BC.”

An appeal is inevitable, says findlay.

“We will now go to the [British Columbia] Court Of Appeal and say that the trial court was wrong and that the judge misunderstood the nature of human rights law,” says findlay. “Rape Relief may appeal to the Supreme Court Of Canada. Whether they would take that extra step I don’t know.”

Rape Relief isn’t looking forward to an appeal.

“Our initial response is to be really relieved and glad that it’s over, so very glad that it’s over,” says Jay. “We would like for that… victory to stand. I hope she doesn’t [appeal]. This is an enormous drain on us and it cannot have been pleasant for Kimberly Nixon.”

Susan Gapka of Egale Canada says the queer lobby group could get involved supporting Nixon. It might intervene in the appeal process and raise funds for a defence fund.

As well, findlay says she will also request intervention from LEAF, the Women’s Legal Education And Action Fund. She suspects that Rape Relief will also ask for LEAF support on its side of any appeal – illustrating the way the issue splits women’s groups.

* A defence fund with a goal of $10,000 has been set up for Kimberly Nixon. Cheques can be sent in care of Kimberly Nixon Defense Fund to 635-1033 Davie St, Vancouver, BC, V6E 1M7.