A recent BC Court of Appeal ruling strikes at the heart of trans people’s struggle for inclusion, says trans activist Tami Starlight.
The Court of Appeal ruled Dec 7 that a women’s service organization is within its rights to discriminate against transsexual women.
The decision is the latest in the Rape Relief vs Kimberly Nixon legal saga, which began a decade ago when Nixon filed a human rights complaint against the organization for excluding her on the basis of her transsexuality.
The BC Human Rights Tribunal sided with Nixon and ordered Rape Relief to pay her $7500 in damages for discrimination.
Rape Relief appealed. Though it did not dispute the allegation that it rejected Nixon because she is trans, it maintained that it was allowed to do so. Women’s groups are allowed to set their own membership criteria, Rape Relief argued at the time.
The BC Supreme Court agreed with Rape Relief and overturned the tribunal’s decision in 2003.
Two weeks ago, the Court of Appeal upheld the BC Supreme Court’s ruling.
Though the appeal court judges found that Rape Relief did discriminate against Nixon when it excluded her from its volunteer training program, they too ruled that the organization had every right to do so.
That right hinges on Section 41 of the BC Human Rights Code, which allows non-profit groups established to serve a marginalized community to show a preference for including members of that community, be they women or disabled people or people of colour.
In this case, Rape Relief was not only allowed to give preference to women, it was also allowed to prefer a sub-group of women-non-trans women.
In other words, Section 41 gives Rape Relief the right to choose its own members and to limit its own definition of who counts as a woman for its purposes.
It’s an argument Rape Relief has been making since the beginning. The Court of Appeal’s ruling comes as a vindication, says spokesperson Suzanne Jay.
“We were asking for the right to determine our own membership,” Jay says. “We want that right for other equality-seeking groups.
“This [decision] is limited to equality-seeking groups,” she notes. “It does not protect the Ku Klux Klan. We think it’s a strong and important victory for groups across Canada.”
“The Society was entitled to exercise an internal preference in the group served, to prefer to train women who had never been treated as anything but female,” ruled Justice Mary Saunders, for the Court of Appeal.
“The respondent Society was entitled to give preference to women who are not post-operative transsexuals,” added her colleague, Chief Justice Lance Finch.
The third judge on the panel, Justice Mary Southin, put it even more bluntly.
“It takes many years for society in general to adjust itself to radical developments in the human condition.
“To force people, especially those in an organization such as [Rape Relief], which has its own radical agenda, to associate with those who for some reason deeply offend their own avowed principles, can lead not to acceptance or at least toleration, but, if not to hatred, at least to animosity.
“Freedom of association includes freedom from association,” Southin ruled.
Rape Relief didn’t want to drag this case through the courts, Jay notes, adding that the group tried to apologize to Nixon and seek human rights mediation. The case has cost Rape Relief about $100,000.
Nixon’s lawyer, barbara findlay, disputes the judges’ findings.
“This is not a book group where you can pick who you don’t invite,” she says. “As soon as you start offering a service, you are no longer free to act without regard for the anti-discrimination provisions of the Human Rights Code.”
“Trans-identified people are today where lesbian, gay and bisexual people were 30 years ago, when they were legally invisible, unprotected and subject to ridicule. We should not have to bear this kind of discrimination,” says Starlight, who also sits on the board of Canada’s national gay lobby group Egale.
“Egale is adamant that the law must protect women’s right to create women-only spaces, but the fact is that trans women are women,” says the group’s director of advocacy Laurie Arron. Egale intervened on Nixon’s behalf at the Court of Appeal.
Lindsay Waddell, who represented Egale at the hearing, agrees that women-only organizations are important and deserve protection. “But they should not be permitted to discriminate between women,” she stresses.
“This case sets a dangerous precedent,” says Waddell’s co-counsel, Cynthia Petersen. “It allows certain groups to discriminate internally within the communities they are created to serve.”
“If women’s groups can exclude women based on their trans status, what is to prevent them from excluding other women based on race, religion or sexual orientation?” asks Egale’s executive director Gilles Marchildon.
“Discrimination based on a person’s intrinsic nature or personal circumstances is just plain wrong,” he adds.
The unfortunate consequences of this decision, findlay adds, is that now other organizations created to serve marginalized groups will also be able to discriminate against sub-groups they don’t like and get away with it.
A group serving people with disabilities, for example, could potentially exclude people with AIDS and not have to worry about human rights complaints, findlay says.
Still, the case overall has had one positive impact, findlay notes. Win or lose, it has certainly raised the profile of trans rights. Women’s organizations across the country have become more trans-inclusive as a result of this process, she says.
Arron agrees. “Sometimes when you lose in court, you win in the court of public opinion.”
That said, findlay is planning to appeal the Dec 7 decision to the Supreme Court of Canada.
Arron says if Nixon wants to take the case to the Supreme Court, Egale will be there for her. “We view the appeal of this decision as critical, not only for trans people, but for anyone who faces discrimination and seeks to bring a human rights complaint.”
Findlay lauds Nixon for her courage in continuing the case. “Every time she goes in the newspapers again, she gets fired from her job and I have to do another wrongful dismissal case,” she says.