The Supreme Court will not hear arguments about whether a women’s service organization erred in excluding a trans person from working with the Vancouver-based group.
The Feb 1 decision denying “leave to appeal” to the Supreme Court Of Canada leaves Kimberly Nixon without further recourse for her exclusion from Vancouver Rape Relief.
The battle began a decade ago when Nixon filed a human rights complaint against the organization over her treatment.
The BC Human Rights Tribunal found that Nixon had been discriminated against on the basis of her trans identity and ordered Rape Relief to pay her $7,500 in damages.
But the victory was short-lived. Rape Relief appealed to the BC Supreme Court, where the tribunal’s decision was overturned. At that time, Rape Relief did not dispute the allegation that it rejected Nixon because she is trans, but argued it was allowed to do so. Nixon appealed to the BC Court Of Appeal, who upheld the province’s Supreme Court decision in 2005.
Karen Busby, an Egale Canada board member and professor of constitutional law at the University Of Manitoba, says that regardless of the outcome today, the Nixon case has been groundbreaking for trans rights.
When it started its appeal, Vancouver Rape Relief could have raised the question of whether gender identity could be used as grounds for a human rights complaint, and 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.
But 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 level of abused women.
“I can’t imagine any other business where that argument can be made,” says Busby, noting that most organizations of this type make no objection to utilizing trans employees or volunteers.
“There are problems with the BC Court Of Appeal decision but I don’t want to overestimate it,” says Busby.
Nixon’s lawyer, Barbara Findlay, was not immediately available for comment.