The Supreme Court Of Canada will not hear a case about whether a women’s service organization has the right to exclude a transsexual woman as a volunteer.
The Feb 1 decision leaves Kimberly Nixon, who is “medically and legally a woman,” without further recourse for her exclusion as a volunteer rape counsellor at Vancouver Rape Relief (VRR).
In 1995 Nixon filed a human rights complaint against VRR; she was asked to leave a volunteer training session after revealing to a trainer she is a male-to-female transsexual. VRR argued, according to the BC Human Rights Tribunal, that “Ms Nixon’s personal qualifications or qualities are not the reason she was not suitable as one of their volunteers. Rather, it is the fact that Ms Nixon was not born a woman.” The tribunal found that Nixon had been discriminated against and ordered VRR to pay her $7,500 in damages.
VRR appealed to the Supreme Court Of BC, where the tribunal’s decision was overturned. Nixon appealed to the BC Court Of Appeal, which in 2005 upheld the province’s Supreme Court decision. The court agreed that Nixon was discriminated against but stated that VRR was justified. BC’s Human Right Code grants exemptions, “if a charitable, philanthropic, educational, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons.”
Egale Canada supported the Nixon case in the courts. Karen Busby, an Egale board member and professor of constitutional law at the University Of Manitoba, says that regardless of the outcome the Nixon case has been groundbreaking for trans rights.
When it began its appeal, VRR could have raised the question of whether gender identity could be used as grounds for a human rights complaint. It didn’t, says Busby.
“It’s fair to say that most human rights tribunals hear cases about [gender identity], even though there is only one jurisdiction that explicitly protects from discrimination on the basis of gender identity, so that’s actually huge, coming out of the Nixon case,” says Busby.
Northwest Territories is the only jurisdiction in Canada where discrimination on the basis of gender identity is prohibited by law.
Busby says that the Nixon case gives only a “very, very rare exception” to prohibitions on discrimination. The BC Court Of Appeal decision was based on a “very unusual set of facts” because the centre deals with the comfort levels of abused women.
“I can’t imagine any other business where that argument can be made,” says Busby. Many other women’s service organizations in Canada welcome trans employees and volunteers.
Meanwhile, the Supreme Court has decided it will hear the case of Rafe Mair, the BC radio show host who stands accused of defaming a rightwing activist during a 1999 discussion over the availability of queer books in schools.
On his show Mair said Simpson was “a dangerous bigot apt to cause harm to gay people” and that Simpson “preaches hatred against gay people.” The BC Supreme Court ruled Mair’s statements were “sensational and inflammatory” but fair comment. The BC Court Of Appeal sided with Simpson, writing that there was no “evidentiary foundation” to support some of Mair’s remarks. Mair appealed; the Supreme Court has not yet set a date to hear it.
With files from Paul Gallant.