Lawyer findlay: 'Where's the line?'
Kimberly Nixon's legal battle with Vancouver Rape Relief has finally come to an end after 12 years.
Thursday, Feb. 1, the Supreme Court of Canada denied the transsexual woman's appeal to have her case heard. Nixon launched a human rights complaint against the feminist-run non-profit society for excluding her as a volunteer peer counsellor for raped and battered women. The court awarded costs to Rape Relief.
The decision not to hear the case leaves the B.C. Court of Appeal's decision in December 2005 as the last word on the dispute, which began in August 1995.
The conflict was sparked when Nixon, who had a sex change operation in 1990, answered a Rape Relief ad for women interested in training to be volunteer counsellors. The woman leading the workshop asked Nixon if she had always been a woman, and when she confirmed she was transsexual she was asked to leave.
While it may appear that Rape Relief discriminated against Nixon because she was born with a penis, they have a different rationale. Rape Relief's collective belief is that far beyond a person's biological make-up, socialization and experience are what shapes individuals. It's part of their philosophy that women experience the male-dominated world differently than men. That was the 34-year-old organization's original argument for why they should be allowed to exclude men when their women-only policy was first challenged in the 1970s, and they feel it's relevant to whether they should admit transsexual women.
The law recognizes that drawing distinctions isn't necessarily discrimination, and considers a number of factors such as whether being denied access to an organization or service prevents a complainant "participating in the life of the community." Decisions are made within the context of where the complaint takes place. For example, if there is only one women's group in the community it might be discrimination, but if there are a number of groups serving different interests it may not be.
It also takes the complainant's real agenda into account. In a November 2006 decision, for example, the tribunal doubted that complainant Ralph G. Stopps had a genuine interest in attending the Just Ladies gym in Burnaby, which excludes men. They decided that he suffered no adverse effects from being excluded and his complaint was denied.
Protecting group rights
Groups can argue that they are exempt from charges of discrimination under Section 41 of the B.C. Human Rights Code, which is designed to harmonize with section 15 of the Charter of Rights and Freedoms in protecting group rights.
"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 characterized by a physical or mental disability or by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin, that organization or corporation must not be considered to be contravening this code because it is granting a preference to members of the identifiable group or class of persons."
Rape Relief attempted to defend itself under Section 41, but the tribunal didn't accept that. On hearing the evidence, which included Rape Relief's concern that Nixon's appearance -- which they found masculine -- would be disturbing for traumatized clients looking for a women-only refuge, they found in favour of Nixon and awarded her a record $7,500. They also referred the feminist collective for sensitivity training.
Despite that, they recognized that Rape Relief acted in good faith, according to their philosophy. Both parties agreed that Nixon was a woman and that gender existed on a continuum -- it wasn't binary, despite the social convention of dividing everyone into categories of male or female.
But that was Nixon's last legal victory.
'Vindicate her womanhood'
Rape Relief took the tribunal decision to review at the B.C. Supreme Court, which quashed it. In his decision, Justice E.R.A. Edwards wrote that "excluding Nixon based on her experience as a male is not discriminatory under the code."
Edwards pulled no punches. He noted that Nixon had left a position at another women's group, Battered Women's Support Services, which accepted trans-women, and he determined that Nixon was interested in Rape Relief specifically because of its women-only policy, which, he wrote, "would vindicate her womanhood."
(Both the tribunal and Rape Relief accept that Nixon has a genuine interest in counselling other women, and she has done so both before and after her filing the human rights complaint.)
Edwards also compared Rape Relief's philosophy to religious conviction and described their beliefs as "articles of faith" meaning "...matters of received or accepted wisdom, intuitively correct and not requiring logical or scientific demonstration for their validity."
In other words, this being a democracy, the Rape Relief Collective is entitled to their beliefs.
Nixon appealed Edward's judgment, but in December 2005, B.C. Court of Appeals upheld the lower court's decision.
'Where do we draw the line?'
Nixon wasn't available for comment on the Supreme Court of Canada's decision not to hear her case, but her lawyer barbara findlay said they were disappointed.
Findlay thinks that all Canadians should be concerned about the Supreme Court letting the B.C. Appeals Court decision stand because she believes it is granting some groups the right to discriminate. Findlay, who often champions gay and transgendered clients, notes that the protections for religious groups, particularly, often lead to discrimination based on sexual orientation.
"Where do we draw the line between accommodating differences and being free to discriminate? Those issues are becoming more pressing and controversial," findlay said.
But Christine Boyle, a law professor at the University of British Columbia, who represented Rape Relief, believes this case is good news for any member of a disadvantaged or equality-seeking group -- including Nixon.
"Other groups in our province will be reassured to know that their right to organize has been confirmed and is under the protection of the law," Boyle said, adding that Nixon also won a significant point. "The court acknowledged that transsexualism is included in the category of sex discrimination."
Boyle points out that the decision on this case upholds the right of groups to fight the discrimination they feel, in the manner they see fit, without being expected to take on the burden of other disadvantaged groups.
"It's saying that just because someone has arthritis -- which is a disadvantage -- it doesn't give her the right to go to a group organized around helping people who, for example, might need wheelchairs. She can't insist they take address her problem too."
More cases predicted
The right to provide a narrowly focused service is significant for tiny not-for-profit groups like Rape Relief, which is run by a collective of about 20 women on a budget of about $600,000. Most of the money comes from fundraising. They serve about 100 women and 70 children a year in the shelter, and field thousands of crisis calls, 24 hours a day. About roughly 100 volunteers a year donate their time.
But findlay said that in allowing Rape Relief to determine who they will or will not serve, the courts have, in effect, given them the right to determine who is or isn't a woman.
Boyle disputes that reading of the case. "The legal issue wasn't how people are classified in terms of gender. I don't think the B.C. Human Rights Tribunal has the right to decide what it means to women to be women -- that's a political issue. What all the courts have said is that Rape Relief is entitled to the protection of the Human Rights Code, just like anyone else."
Findlay, who often describes Nixon as the Rosa Parks of trans-women, said her case may have been the first of its kind, but it won't be the last.
"Ultimately, what is accessible to all women will be accessible to trans-women too," findlay said. "I think this just shows that achieving equality will take a long time for the transgendered. But there will be other cases."
Rape Relief spokesperson Suzanne Jay said that she was almost as surprised as she was relieved by the decision.
"As advocates for raped and battered women, we don't see the courts regularly making decisions that benefit women -- rape cases rarely even go to court," Jay said.
But she was relieved that they retained their right to run a women-only shelter and counselling service.
"We're just one option for women in the community and we're glad we can go on providing it."
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