Notes from a seminar I gave at UBC Allard School of law in 2021 for law students and interested faculty…augmented with some additional details afterwards. This is a living document.
Delivered 28 Jan 2021 to Allard Law School (online)
Morgane Oger, Morgane Oger Foundation
https://ogerfoundation.ca
https://twitter.com/ogerfoundation|https://twitter.com/morganeogerbc
What is Trans?
“Transgender people have a gender identity or gender expression that differs from the sex that they were assigned at birth. Some transgender people who desire medical assistance to transition from one sex to another identify as transsexual.” – Wikipedia
American Psychiatric Association Diagnostic Statistical Manual – V (version five): Gender Dysphoria
World Health Organization ICD-11: Gender Incongruence
Numbers
- ½% are transgender
- Past transsexual breakdown in literature: ~ 90% women, 10% men [citation check needed]
- Current Trans breakdown: ⅓ men, ⅓ women, ⅓ nonbinary
- Growing number of persons declaring being trans. Number of persons accessing bottom surgery holding over the years. Seems to be in vicinity of 1 in 20,000 F, 1 in 200,000 M per year in BC (all or overwhelmingly adults – mostly due to BC single-layer MSP / Trans Care BC requirements of WPATH adherence for standards of care to access transsexual surgery)
- Academia: Size and distribution of gender diverse populations
- Americal Psychiatric Association: Gender Dysphoria
- World Health Organization: Gender Incongruence
Issues
- Bias, Inciting hatred, inciting violence, charter protections
- Violence: Mission school board
- Differential treatment, accomodation – CSC, BC Prisons, City Jails
- Inciting discrimination: Whatcott, Simpson
- Free expression
- Belief
- Enforceability
- Events inciting prohibited discrimination
- Pearl clutching
- Truth:
- Legal vs
- Observed vs
- Belief
- Issue campaigns
- Pearl Clutching
- Separate the T from the LGB
- Substantive Equality
legislation
- Human Righs Law
- Legislated licensing bodies
-
- Codes of ethics & conduct
- BC Human Rights Commissioner
- “We exist to…Address the root causes of inequality,the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex.”
- BC Human Rights Code Legislation
- Discriminatory publication
- Discrimination in accommodation, service and facility
- Discrimination in purchase of property
- Discrimination in tenancy premises
- Discrimination in employment advertisements
- Discrimination in wages
- Discrimination in employment
- Discrimination by unions and associations
- Canadian Human Rights Commission
- Canadian Human Rights Act
- Proscribed discrimination
“For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”
Context: federally-regulated industries - Note: S.13 repealed 2013 (transmission)
- Proscribed discrimination
- Charter -> applies to GOVT only.
- Institutions: federal, provincial, municipal. No exceptions.
- Genetic Discrimination Act
- Infant Act
- Mature Minor
- consent to care
- Best interest of the child
- Charities Directorate
- “Registered charities have certain obligations under the Income Tax Act”
- “We make sure that: only organizations that qualify as charities under the common law are registered, the operations of registered charities fall within the limits of the Act, registered charities issue official donation receipts appropriately, revoked charities pay a revocation tax”
- Must have charitable purpose: “To be registered as a charity, an organization must have purposes that are exclusively charitable and conduct activities that further those purposes. An organization’s purposes are found in its governing documents, and outline its goals and objectives. Activities are the ways the organization furthers its purposes. The Canada Revenue Agency looks at both of these when deciding if it can register a charity.”
- Emerging legislation
- Bill C-6
- Bill C-10
- Bill C-36
Issues
- Access to care
- Adults
- Children
- Mature Minors
- Access to services
- Commercial
- see undue hardship
- a cake shop does not do oil changes (Yaniv v multiple Salons
- Charitable
- see undue hardship and exceptions for targeting services to a mandated demographic
- Government
- see undue hardship, Charter s.15
- Important: Human Rights Act (federally regulated situations, Codes (provincially regulated situations) read into s.15 by jurisprudence
- Conversion therapy
- The attempt to change a person’s gender identity or sexual orientation. Studies have shown Conversion therapy is associated with a doubling of suicidality of people who have undergone it.
- CBA: Protection against Conversion Therapy in Candada
- Provinces are struggling to prosecute conversion therapy, which is why the Federal government tabled bill C-6 to add it to the criminal code.
- BC: See Bill C-6
- Ontario: see Bill 77
- Bill C-6 passed by House of Commons, at senate as of summer 2021. Election expected to be called in Fall 2021, bill expected to die. Will need to be re-submitted by next government after an election.
- Travel & documentation
- Self determination
Some provinces have self-determination of gender identity. Most do not.
- Duty to accommodate v undue hardship
- Undue Hardship: test is “Test is Virtually impossible test is the same, resources are different.” Also see s.41 BCHRT, case law.
- Can’t force a bike shop to fix a car. Yaniv v Various Waxing Salons. BCHRT 2019
- Sports
- IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015 ,
- Canadian Olympic Team
- CCEC Creating Inclusive Environments for Trans Paraticipants in Sports
Case Law Of Note
Image: Government of Canada
Below are the legal cases, with their summmary and/or conclusions. These paved the way to defining what the equality rights are for Trans persons in British Columbia, Canada. As more rulings are decided, I will endeavour to add them here.
R. v. Keegstra, [1990] 3 S.C.R. 697 <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/695/index.do>
The accused, an Alberta high school teacher, was charged under s. 319(2) of the Criminal Code with wilfully promoting hatred against an identifiable group by communicating anti‑semitic statements to his students. Prior to his trial, the accused applied to the Court of Queen’s Bench for an order quashing the charge. The court dismissed the application on the ground that s. 319(2) of the Code did not violate freedom of expression as guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms . The court, for want of proper notice to the Crown, did not entertain the accused’s argument that s. 319(3)(a) of the Code violated the presumption of innocence protected by s. 11 (d) of the Charter . Section 319(3) (a) affords a defence of “truth” to the wilful promotion of hatred but only where the accused proves the truth of the communicated statements on a balance of probabilities. The accused was thereafter tried and convicted. On appeal the accused’s Charter arguments were accepted, the Court of Appeal holding that ss. 319(2) and 319(3) (a) infringed ss. 2 (b) and 11 (d) of the Charter respectively, and that the infringements were not justifiable under s. 1 of the Charter .
Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be allowed. Sections 319(2) and 319(3)(a) of the Code are constitutional
Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12876/index.do>
The appellants distributed cards inviting calls to a Toronto telephone number answered by recorded messages. The messages, while in part arguably innocuous, contained statements denigrating the Jewish race and religion. In 1979, complaints about these messages were lodged with the Canadian Human Rights Commission. The Commission established a tribunal which concluded that the messages constituted a discriminatory practice under s. 13(1) of the Canadian Human Rights Act and ordered the appellants to cease the practice. The section makes it a discriminatory practice to communicate telephonically any matter likely to expose a person or a group to hatred or contempt on the basis, inter alia, of race or religion. Pursuant to the Act, the cease and desist order was filed in the Federal Court. No proceedings were taken by the appellants to have the order set aside. In spite of the order, the appellants continued their messages and were found in contempt of the order. The Party was sentenced to a $5,000 fine and T, the Party’s leader, to one year of imprisonment. The sentence was suspended upon the condition that the appellants obey the Tribunal’s cease and desist order. They did not and the suspension of sentence was vacated. The Party paid its fine and T served his sentence. In 1983, the Canadian Human Rights Commission filed a new application with the Federal Court, alleging that further messages were being transmitted and that these messages also breached the Tribunal’s order. The Commission sought a new order of committal of T and a $5,000 fine against the Party. Relying on the Canadian Charter of Rights and Freedoms , the appellants argued that s. 13(1) of the Act violated s. 2 (b) of the Charter , and that the Tribunal’s order was of no effect. The Federal Court, Trial Division rejected the argument, confirmed the contempt, imposed the fine and made the commital order sought by the Commission. The appellants’ appeal to the Federal Court of Appeal was dismissed. This appeal is to determine (1) whether s. 13(1) of the Act and the Tribunal’s cease and desist order violate s. 2 (b) of the Charter ; and (2) whether the Tribunal’s order is invalid because of bias. The allegation of bias, raised for the first time before the Federal Court of Appeal, arises from the fact that the Tribunal was appointed by the Commission, the latter being a body intimately connected with investigating and substantiating the complaint.
Held (La Forest, Sopinka and McLachlin JJ. dissenting in part): The appeal should be dismissed. Section 13(1) of the Canadian Human Rights Act is constitutional.
Morgane’s Note: section 13 of the Canadian Human Rights Act was repealed by the Harper Government in 2013 on allegations that it was non-constitutional. Politics and the truth do not always align.
Sheridan v. Sanctuary Investments Ltd. (No. 3), 1999 CanLII 35172 (BC HRT), <https://canlii.ca/t/g965p>
The B.C. Human Rights Tribunal finds that B.J.’s Lounge discriminated against Tawni Sheridan on the basis of sex and disability by refusing Sheridan, who is a pre-operative male to female transsexual, the use of the women’s washroom.
B.J.’s Lounge is a licensed video lounge that caters to gay, lesbian, and transgendered individuals. The Lounge had a policy requiring men to use the men’s washrooms and women to use the women’s washrooms. Tawni Sheridan alleged discrimination because of being refused use of the women’s washroom. The complainant also alleged discrimination because of being denied entrance to the bar on an occasion when the identification she presented was that of a man bearing a man’s name.
Ferris v. O.T.E.U., Local 15, 1999
CanLII 35191 (BC HRT), <https://canlii.ca/t/gd3fp>
The B.C. Human Rights Tribunal rules that the Office and Technical Employees Union, Local 15 discriminated against Leslie Ferris, a transsexual, on the grounds of sex and disability.
The human rights complaint arose because of the Union’s actions following an anonymous complaint to the employer about the complainant’s use of the women’s washroom. The complainant had not had sex reassignment surgery.
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12876/index.do
Held: The appeal should be allowed in part.
The definition of “hatred” set out in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in legislative provisions prohibiting hate speech. Three main prescriptions must be followed. First, courts must apply the hate speech prohibitions objectively. The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term “hatred” or “hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects. Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination. In light of these three directives, the term “hatred” contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.
The statutory prohibition against hate speech at s. 14(1)(b) of the Code infringes the freedom of expression guaranteed under s. 2 (b) of the Charter . The activity described in s. 14(1)(b) has expressive content and falls within the scope of s. 2 (b) protection. The purpose of s. 14(1)(b) is to prevent discrimination by curtailing certain types of public expression.
The limitation imposed on freedom of expression by the prohibition in s. 14(1)(b) of the Code is a limitation prescribed by law within the meaning of s. 1 of the Charter and is demonstrably justified in a free and democratic society. It appropriately balances the fundamental values underlying freedom of expression with competing Charter rights and other values essential to a free and democratic society, in this case a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.
The objective for which the limit is imposed, namely tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination, is pressing and substantial. Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.
Section 14(1)(b) of the Code is proportionate to its objective. Prohibiting representations that are objectively seen to expose protected groups to hatred is rationally connected to the objective of eliminating discrimination and the other harmful effects of hatred. To satisfy the rational connection requirement, the expression captured under legislation restricting hate speech must rise to a level beyond merely impugning individuals: it must seek to marginalize the group by affecting their social status and acceptance in the eyes of the majority. The societal harm flowing from hate speech must be assessed as objectively as possible and the focus must be on the likely effect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Section 14(1)(b) of the Code reflects this approach. The prohibition only prohibits public communication of hate speech; it does not restrict hateful expression in private communications between individuals. Similarly, the prohibition does not preclude hate speech against an individual on the basis of his or her uniquely personal characteristics, but only on the basis of characteristics that are shared by others and have been legislatively recognized as a prohibited ground of discrimination. However, expression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation. Accordingly, those words in s. 14(1)(b) of the Code are not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups and they unjustifiably infringe freedom of expression. Consequently, they are constitutionally invalid and must be struck from s. 14(1)(b).
Section 14(1)(b) of the Code meets the minimal impairment requirement. Alternatives proposed were to allow the marketplace of ideas to arrive at the appropriate balance of competing rights or to leave the prosecution of hate speech to the criminal law. However, the prohibition in s. 14(1)(b) is one of the reasonable alternatives that could have been selected by the legislature. The words “ridicules, belittles or otherwise affronts the dignity of” in s. 14(1)(b) are also constitutionally invalid because they do not minimally impair freedom of expression. Once those words are severed from s. 14(1)(b), the remaining prohibition is not overbroad, but rather tailored to impair freedom of expression as little as possible. The modified provision will not capture all harmful expression, but it is intended to capture expression which, by inspiring hatred, has the potential to cause the type of harm that the legislation is trying to prevent.
Not all expression will be treated equally in determining an appropriate balancing of competing values under a s. 1 analysis, since different types of expression will be relatively closer to or further from the core values behind the freedom, depending on the nature of the expression. Hate speech is at some distance from the spirit of s. 2 (b) because it does little to promote, and can in fact impede, the values underlying freedom of expression. Hate speech can also distort or limit the robust and free exchange of ideas by its tendency to silence the voice of its target group. These are important considerations in balancing hate speech with competing Charter rights and in assessing the constitutionality of the prohibition in s. 14(1)(b) of the Code.
Framing speech as arising in a moral context or within a public policy debate does not cleanse it of its harmful effect. Finding that certain expression falls within political speech does not close off the enquiry into whether the expression constitutes hate speech. Hate speech may often arise as a part of a larger public discourse but it is speech of a restrictive and exclusionary kind. Political expression contributes to our democracy by encouraging the exchange of opposing views. Hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse. Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate. Section 14 of the Code provides an appropriate means by which to protect almost the entirety of political discourse as a vital part of freedom of expression. It extricates only an extreme and marginal type of expression which contributes little to the values underlying freedom of expression and whose restriction is therefore easier to justify.
A prohibition is not overbroad for capturing expression targeting sexual behaviour. Courts have recognized a strong connection between sexual orientation and sexual conduct and where the conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as proxy for attacks on the group itself. If expression targeting certain sexual behaviour is framed in such a way as to expose persons of an identifiable sexual orientation to what is objectively viewed as detestation and vilification, it cannot be said that such speech only targets the behaviour. It quite clearly targets the vulnerable group.
The fact that s. 14(1)(b) of the Code does not require intent by the publisher or proof of harm, or provide for any defences does not make it overbroad. Systemic discrimination is more widespread than intentional discrimination and the preventive measures found in human rights legislation reasonably centre on effects, rather than intent. The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm. The discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians. As such, the legislature is entitled to a reasonable apprehension of societal harm as a result of hate speech. The lack of defences is not fatal to the constitutionality of the provision. Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction. Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness.
The benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression. Section 14(1)(b) of the Code represents a choice by the legislature to discourage hate speech in a manner that is conciliatory and remedial. The protection of vulnerable groups from the harmful effect emanating from hate speech is of such importance as to justify the minimal infringement of expression.
Section 14(1)(b) of the Code also infringes freedom of conscience and religion as guaranteed under s. 2 (a) of the Charter . An infringement of s. 2 (a) will be established where: (1) the claimant sincerely holds a belief or practice that has a nexus with religion; and (2) the provision at issue interferes with the claimant’s ability to act in accordance with his or her religious beliefs. To the extent that an individual’s choice of expression is caught by the definition of “hatred” in s. 14(1)(b), the prohibition will substantially interfere with that individual’s ability to disseminate his or her belief by display or publication of those representations.
For the same reasons set out in the s. 1 analysis in the case of freedom of expression, the words “ridicules, belittles or otherwise affronts the dignity of” are not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion. The remaining prohibition of any representation “that exposes or tends to expose to hatred” any person or class of persons on the basis of a prohibited ground is a reasonable limit on freedom of religion and is demonstrably justified in a free and democratic society.
While the standard of review of the tribunal’s decision on the constitutionality of s. 14 of the Code is correctness, the standard of review of the tribunal’s decision that the flyers contravene that provision must be reasonableness. The tribunal did not unreasonably fail to give proper weight to the importance of protecting expression that is part of an ongoing debate on sexual morality and public policy. Nor was it unreasonable in isolating certain excerpts from the flyers for examination, or in finding that the flyers criticize sexual orientation and not simply sexual behaviour. That the rights of a vulnerable group are a matter of ongoing discussion does not justify greater exposure by that group to hatred and its effects. The only expression which should be caught by s. 14(1)(b) of the Code is hate‑inspiring expression that adds little value to the political discourse or to the quest for truth, self‑fulfillment, and an embracing marketplace of ideas. The words and phrases in a publication cannot properly be assessed out of context, and the expression must be considered as a whole, to determine the overall impact or effect of the publication. However, it is also legitimate to proceed with a closer scrutiny of those parts of the expression which draw nearer to the purview of s. 14(1)(b) of the Code. If, despite the context of the entire publication, even one phrase or sentence is found to bring the publication, as a whole, in contravention of the Code, this precludes its publication in its current form.
The tribunal’s conclusions with respect to the first two flyers were reasonable. Passages of these flyers combine many of the hallmarks of hatred identified in the case law. The expression portrays the targeted group as a menace that threatens the safety and well‑being of others, makes reference to respected sources in an effort to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred. The flyers also expressly call for discriminatory treatment of those of same‑sex orientation. It was not unreasonable for the tribunal to conclude that this expression was more likely than not to expose homosexuals to hatred.
The tribunal’s decision with respect to the other two flyers was unreasonable and cannot be upheld. The tribunal erred by failing to apply s. 14(1)(b) to the facts before it in accordance with the proper legal test. It cannot reasonably be found that those flyers contain expression that a reasonable person, aware of the relevant context and circumstances, would find as exposing or likely to expose persons of same‑sex orientation to detestation and vilification. The expression, while offensive, does not demonstrate the hatred required by the prohibition.
Dawson v. Vancouver Police Board, 2013 BCHRT 241 (CanLII), <https://canlii.ca/t/g10gl>
Application to hold subcontractor Vancouver Coastal Health Authority accountable – denied.
Dawson v. Vancouver Police Board (No. 2), 2015 BCHRT 54 (CanLII), <https://canlii.ca/t/ggzx4>
The B.C. Human Rights Tribunal found that Vancouver police officers discriminated against a male to female transsexual by failing to recognize the complainant’s post-surgical gender identity and respond appropriately.
Following gender reassignment surgery, the complainant, Angela Dawson, wished to be treated as a woman and known as Angela Dawson. In interactions with the Vancouver Police the complainant was known by various names, including Jeffrey Allan Dawson, a legal name which Angela Dawson retained.
The complainant had numerous interactions with Vancouver police officers and staff at the Vancouver jail. The complaint included six alleged instances of discrimination. The Tribunal found that the allegations were substantiated in part.
The Tribunal found that in 2010 Angela Dawson experienced discrimination at the Vancouver jail. While incarcerated, Ms. Dawson requested post-surgical medical treatment in the form of vaginal dilation, which was refused because a male nurse refused to believe that Ms. Dawson had a vagina. When Ms. Dawson refused to be examined by the nurse, the nurse did no independent investigation of whether Ms. Dawson’s claims about the surgery and her need for post-surgical vaginal dilation were true, but rather terminated the nursing relationship.
The Tribunal found that the Vancouver Police Department was liable for the discrimination, which took the form of denial of medical service.
Soon after this incident, Angela Dawson was again detained in jail, while still recovering from gender re-assignment surgery. The Tribunal found that the Vancouver Police Department discriminated against Angela Dawson by referring to Ms. Dawson as male and failing to ensure that Ms. Dawson could undertake the medically prescribed post-surgical procedure of vaginal dilation.
There were additional incidents involving Ms. Dawson being given traffic tickets showing the name that appears on Ms. Dawson’s legal documents. At least one of these incidents, the Tribunal found, was discriminatory.
The Tribunal found there was significant inconsistency in how Vancouver police officers identified Angela Dawson, using both male and female pronouns, and both Angela and Jeffrey, often in the same encounter, which was hurtful to Angela Dawson.
The Tribunal found that the Vancouver Police Department has a duty to accommodate transsexual persons and that Vancouver police officers need to have some guidance and training as to how to accomplish this.
The Tribunal ordered compensation for Angela Dawson in the amount of $15,000 for injury to dignity. The Tribunal also ordered the Vancouver Police Department to develop non-discriminatory policies with regard to gender identification and training for officers to implement the policy.
Oger v. Whatcott (No. 7), 2019 BCHRT 58 (CanLII), <https://canlii.ca/t/hzdgk>
The B.C. Human Rights Tribunal ruled that William Whatcott discriminated against Morgane Oger by distributing a Flyer entitled “Transgenderism vs. Truth” when Morgane Oger was running as the NDP candidate for the False Creek riding in Vancouver. The Tribunal found that Mr. Whatcott’s Flyer indicated an intention to discriminate against Morgane Oger because of her gender identity as a transgender woman, and was likely to expose her and other transgender people to hatred or contempt, contrary to s. 7 of the Human Rights Code.
In 2017, when Morgane Oger was running for provincial election as the NDP candidate for False Creek, William Whatcott, who identifies himself as a Christian activist, became concerned about Oger’s candidacy. He learned that Oger had been active in lobbying for amendments to the Human Rights Code to add the grounds of “gender identity and expression” and in promoting education about sexual orientation and gender identity in schools. Most importantly, however, he was upset that the media, and the public at large, were “pretending” that Oger was a woman. Mr. Whatcott believes that gender is static and derived from the genitalia that a person has at birth. He believes that Morgane Oger is a man, and decided to focus his energies on her campaign, although he believed that Ms. Oger was, in fact, incidental to the larger fight for social order and freedom.
The Flyer says that the “truth” is that Morgane Oger is male, and it suggests that anyone who says otherwise — including the NDP, and the media — is promoting “falsehoods”. The Flyer says:
Because gender is God given and immutable, “transgendersim” is an impossibility. A male cannot “transition” into a female, nor can a female “transition” into a male. One can only cross dress and disfigure themselves [sic] with surgery and hormones to look like the gender they are not.
The Flyer goes on to warn that the transvestite and homosexual lifestyle puts people at greater risk of disease, and drug and alcohol abuse. It invokes the Bible and says that liars and the sexually immoral will not inherit the Kingdom of Heaven, but be consigned to the “lake that burns with fire and sulfur, which is the second death”.
Further, the Flyer calls on readers not to vote for the NDP, and to tell NDP canvassers that you won’t vote for the NDP “because you believe in God’s definition of gender and marriage”.
The Tribunal considered first whether and how it should address Whatcott’s invocation of his rights to freedom of expression under s. 2(a) and (b) of the Charter. The Tribunal found that Morgane Oger also has rights under the Charter, which may be relevant, including ss. 3 and 15. The Tribunal found that the Charter protections available to both parties can be appropriately weighed within the statutory and factual context of the case and do not need to be addressed separately.
The purposes of the Code are directly engaged in this case; in particular, the Tribunal found that it is bound to render a decision in a manner that promotes equitable participation in political life, eliminates persistent patterns of inequality, and promotes a climate of respect.
Section 7(1)(a) of the Code prohibits publications which indicate discrimination or an intention to discriminate. Some form of this prohibition has been in B.C. human rights legislation since 1961, but it has been applied in very few cases. It targets speech, but the speech it targets is not the same as “hate speech”. A “whites only” sign would not meet the threshold for hate, but clearly indicates an intention to discriminate and has no place in an equal society. In short, the Tribunal found s. 7(1)(a) targets “conduct where a respondent intends to make an invidious distinction with adverse consequences”.
Regarding Mr. Whatcott’s right to freedom of speech, the Tribunal finds that the fact that the Flyer was a response to a political campaign and its message related to how people should vote, does not imbue it with inherent value as political speech. Freedom of expression is a means by which people can meaningfully exercise their right to participate in politics. But the Flyer aims to have the opposite effect. It seeks to exclude a group of already marginalized persons from political life. The Flyer invokes stereotypes and indicates “a willingness to judge individuals based on those stereotypes”. The Tribunal rejected the characterization of the Flyer as “political speech”, finding that it does not engage in debate about matters of social policy. Far from an attempt to engage in an enriching policy debate, the Flyer engaged in denigration of Morgane Oger based on her gender identity and encouraged voters not to support her party, because it supported a transgender candidate. The nature of the expression in this case is such that it detracts from the core values of s. 2 of the Charter, and is fundamentally inconsistent with the purposes of the Code.
There is also a conflict between Mr. Whatcott’s religious belief that he should do everything in his power to stop a transgender woman from being elected into political office, and Morgane Oger’s right to enjoy equal and dignified participation in the political life of this province. To the extent that the decision of the Tribunal may interfere with Whatcott’s religious rights, it’s a relative minor limitation. He remains free to hold is religious belief and communicate them in private. He is only prohibited from practicing his religion in a way that violates the human rights of other people.
The Tribunal found that the Flyer violates s. 7(1)(a) of the Code because it demonstrates an intention to discriminate against Morgane Oger in a critical area of public life, namely participation in an election as a candidate for public office.
The Tribunal also found that the Flyer was likely to expose Ms. Oger and transgender people to detestation and vilification based on their gender identity in violation of s. 7(1)(b) of the Code. The Flyer denies the reality of transgender people, associates them with social problems and disease, calls them “liars and sexually immoral”, deploys the Bible to legitimize vilification, and advocates overt discrimination by calling on readers not to vote for Morgane Oger or the NDP.
The Tribunal ordered William Whatcott to pay Morgane Oger $35,000 as compensation for injury to dignity, and $20,000 as costs because of his improper conduct during the course of the hearing
This decision summarises the law about trans people and human rights. It also describes common types of behavior that are transphobic. This can include focusing on the sex a trans person was assigned at birth instead of their gender; and suggesting that trans people are criminals, or mentally ill.
T.A. v Manitoba (Justice), 2019 MBHR 12 (CanLII),
<https://canlii.ca/t/j374d>, retrieved on 2021-07-16
Recognition of non-binary gender markers.
This tribunal makes the following orders:
1. Within 180 days of the date of this Decision the respondent is to revise the criteria for changing sex designation to include recognition of non-binary sex designations on Manitoba birth certificates.
2. Within a further 30 days the respondent is required to take reasonable steps to publicize the revised criteria.
3. I order that the Manitoba Human Rights Commission assist in publicizing and informing the relevant health providers for trans and non-binary individuals in Manitoba of the new criteria.
4. An award of $50,000 payable to T.A. in 60 days from the date of this decision.
AB v CD and EF. 2019 BCSC 254, 2019 BCCA 297
A 14-year-old trans boy wanted to start Lupron (a drug that would delay the onset of puberty), and to start taking testosterone. The boy’s father did not agree, and sought a court order preventing his son from accessing gender-affirming care. The BC Supreme Court clarified that under the Infants Act, if a young person a) understands the risks and benefits of a proposed treatment (informed consent), and b) the doctor decides the treatment is in the best interest of the child, then consent from parents is not required. [This is how young people can access contraceptives without parental consent].
The father’s misgendered and deadnamed the boy, sometimes in the media, and tried to convince him not to transition. The BC Supreme Court found that this behavior was family violence, and that it negatively affected the boy’s privacy; and ordered the father to stop. The court waived the requirement for the father’s consent for the boy to legally change his name and gender. The boy was allowed to transition medically.
The father appealed the Supreme Court decision to the BC Court of Appeal. That court upheld the decision of the court below (except for the part that misgendering and trying to dissuade the boy from a medical transition counted as family violence). The father was warned again not to talk about the case because doing so could identify the boy, who had a right to privacy. The father did an online interview. The court warned the father and two people who run a website not to give or publish stories about the boy or the case, of they would be in contempt of court.
This case means young people don’t need the consent of their parents if they pass the test in the Infants Act; and that parents under certain circumstances can be prohibited from revealing personal and medical information about their children in public.
CD appeals three orders of the Supreme Court.
The first found his child AB to have validly consented to medical treatment for gender dysphoria and made declarations respecting AB’s best interests and family violence.
The second was a protection order against CD, and the third dismissed a second proceeding commenced by CD.
At issue is whether the orders were procedurally unfair, authorized by the legislative scheme, or violated CD’s Charter rights. Held: Appeal allowed in part.
The bald declarations under s. 37 of the Family Law Act pertaining to AB’s best interests and family violence were not permitted by the statutory scheme, and the protection order was consequently without foundation. Substituted for some of these orders are a declaration that AB’s consent to the medical treatment was validly made under s. 17 of the Infants Act and conduct orders under s. 227(c) of the Family Law Act.
Yaniv v. Various Waxing Salons (No. 2), 2019 BCHRT 222 (CanLII), <https://canlii.ca/t/j2znh>
The B.C. Human Rights Tribunal dismissed seven complaints filed by Jessica Yaniv, a transgender woman. Ms. Yaniv requested waxing services from each of the respondents. In five cases, she requested waxing of her scrotum. In two she requested waxing of her arms or legs. In each case, she told the respondent that she was a transgender woman and the respondent refused to provide Ms. Yaniv with service. Ms. Yaniv alleged that this refusal to serve her was discrimination based on gender identity.
At the request of the respondents, the Tribunal lifted the publication ban on the use of Ms. Yaniv’s name. In preliminary decisions, the Tribunal had accepted Ms. Yaniv’s request that her name be anonymized as J.Y. She claimed that she and the people close to her were at risk of harassment and harm if her name was published in connection with the complaints. The Tribunal lifted the ban because it found that Ms. Yaniv had been publicly commenting about the cases through her Twitter account. The tweets demonstrated that Ms. Yaniv had chosen to engage very publicly about the issues underlying her waxing complaint and about the complaints. The Tribunal concluded that there was no purpose served by the Tribunal protecting Ms. Yaniv’s identity when she does not feel the need to do so herself. Upholding the publication ban, in these circumstances, the Tribunal ruled, undermined the integrity of the Tribunal.
All of the respondents are women who advertised their services through Facebook Marketplace. They were either providing the service out of their home, or in the client’s home. Most of them are racialized women, with English not their first language. Only three respondents presented a defence to Ms. Yaniv’s complaints.
The Tribunal found that Ms. Yaniv was asking the respondents to wax her genitals. When she testified, she refused to answer questions about whether she had a vulva or a penis and scrotum, and argued that such questions were inappropriate. The Tribunal found, however, that it was Ms. Yaniv who had put her genitals in question and her genitals were therefore relevant to her complaints. Despite her evasive and contradictory testimony, the Tribunal concluded that Ms. Yaniv has “male parts” and was seeking to have hair removed from her scrotum.
The Tribunal accepted expert evidence from Angela Barnetson about waxing services and the waxing industry. She is a licenced aesthetician, and teaches at the Blanche Macdonald Centre in Vancouver, a college which provides training for various professions in the beauty industry.
Ms. Barnetson testified that there are differences between waxing the genitals of a person with a vulva and a person with a penis and scrotum. To remove hair from a scrotum, the practitioner is required to handle both the penis and scrotum for a prolonged period of time, from 20 minutes up to an hour, depending on the amount of hair.
The scrotum must be held and positioned in a particular way. The skin on the scrotum is very thin and the practitioner must exercise caution to ensure they do not rip it. The penis almost always becomes erect, at least for some portion of the treatment. Ms. Barnetson testified that it is not uncommon for the client to then request or expect sexual services and to become abusive when they are denied. Some women are not comfortable working with the scrotum and penis. It is common industry practice for certain businesses to restrict their services to waxing of a vulva.
The Tribunal found that it is not appropriate to lump together under the broader rubric of “genital waxing” the waxing of a scrotum and the waxing of a vulva. The job is different depending on the specific genitals involved. The Tribunal also accepted that this is an intimate service that a person must actively and specifically consent to provide. A person’s decision to touch a stranger’s vulva does not require them to also touch a stranger’s penis and scrotum.
In a number of Ms. Yaniv’s exchanges with the respondents, she was abusive and deceptive, and she harassed and threatened them when they refused to provide service. It was a common theme throughout the complaints that the respondents initially perceived Ms. Yaniv to be a man based on her giving the name “Jonathan: and providing a picture of a male-appearing person.
Ms. Yaniv objected to this, arguing that the respondents had no basis on which to assume her gender and that the assumption was offensive. However, the Tribunal disagreed. For the most part, people make assumptions about gender based on outward characteristics. While sometimes they are wrong, mostly they are right. A service provider can be expected to rely on these assumptions, especially when communicating with a person through social media, with very little information.
The Tribunal concluded that each of the respondents advertised and customarily provided the service of “brazilian waxes”, which is a commonly understood term for removal of hair from a vulva. Ms. Yaniv presented no evidence that the respondents commonly provided the service of removing hair from a scrotum. The Tribunal found that scrotum waxing was not a service customarily provided by the respondents. The Tribunal ruled that the respondents did not deny Ms. Yaniv a service and did not discriminate against her. The Tribunal dismissed these complaints on the grounds that they are not justified, pursuant to s. 37(1) of the Code.
In a couple of cases, the respondents denied a leg or arm wax after Ms. Yaniv disclosed that she was transgender. The Tribunal agreed that generally waxing the legs and arms of a transgender woman does not raise the same issues, and ordinarily she would have found these complaints justified. However, the Tribunal found that Ms. Yaniv’s complaints that she was denied waxing of her legs and arms should be also be dismissed because they were filed for improper motives or in bad faith.
The Tribunal found that the women who were predominantly the targets of Ms. Yaniv’s complaints were vulnerable women. For example, one of the respondents who refused was raised in a traditional Sikh family. She also has disabilities. She has a husband who is very strict, and, as their religion prohibits a woman from touching the body of an unknown man, it was a condition of her working as a beautician that she would only provide services to women.
The Tribunal found that these complaints were filed for improper motives or in bad faith because of the volume of complaints that were filed, the profile of the respondents who were targeted, the use of deception, as well as Ms. Yaniv’s improper financial motivation, her punitive behaviour, and her racial animus.
Ms. Yaniv filed 13 very similar complaints within a four-month time span. She continued to file complaints until the Tribunal asked her to justify how so many complaints on the same issue would further the purposes of the Code, The fact that she filed so many complaints supports a finding that her motives were to punish these respondents and seek financial remuneration, rather than to have the Tribunal rule on a substantive issue.
In addition, because of the volume of complaints, the Tribunal was able to see a pattern. In all but one of the complaints, Ms. Yaniv responded to advertisements on Facebook Marketplace using the name “Jonathan” and a picture from which a person could reasonably assume her to be a man. She requested waxing, usually a brazilian wax and disclosed she was a transgender woman. In at least eight of the cases, the respondents were offering services in their homes, or in the home of the client. They were small or new businesses. Most of the respondents are identifiable from their Facebook profiles as racialized women with non-English names. Having heard the evidence, the Tribunal found that the pattern was deliberate and motivated by Ms. Yaniv’s animus toward certain non-white immigrants to Canada, and in particular members of South Asian and Asian communities.
Ms. Yaniv deliberately manufactured the conditions for each of her complaints by ensuring that the denial of service was captured in writing or recorded. She persisted in her communications until she had secured evidence that the denial was connected to her gender identity. In many cases, she used deception to achieve this. She used fake profiles and identities to communicate with the respondents. She tricked one respondent into providing an address and phone number. This repeated use of deception supports the Tribunal’s finding that Ms. Yaniv was not genuinely seeking waxing services, but rather setting the stage for a human rights complaint and a financial settlement.
In 10 of the 13 complaints, Ms. Yaniv sought the same remedy: an apology and $3,000 in damages. She pressed the view that those who declined to settle the complaints were acting in bad faith. When her complaints were opposed, she withdrew them. When the Tribunal found that this was improper conduct and ordered costs against her, she stopped withdrawing complaints. Overall, the Tribunal found that Ms. Yaniv targeted small businesses, manufactured the conditions for a human rights complaint, and then tried to pursue a financial settlement from parties who were unsophisticated and unlikely to mount a proper defence.
In addition to seeking financial compensation, Ms. Yaniv sought to use the complaints to punish the respondents. She threatened the respondents, and she complained to a couple of their employers and landlords.
Finally, the Tribunal found that Ms. Yaniv has a grievance against certain ethnic and cultural groups which she perceives are failing to assimilate effectively into what she considers “Canadian” culture. Some of her racial animosity was expressed on her Twitter account. There she wrote: “We have a lot of immigrants here who gawk and judge and aren’t exactly the cleanest people …They lie about shit, they’ll do anything to support their own kind and make things miserable for everyone else”. She testified at the hearing that she believes that some immigrant communities are failing to integrate and are using their religion and culture as an excuse to discriminate against the transgender community. She called this neo-Nazism. The Tribunal concluded that Ms. Yaniv holds extremely negative views about South Asian and Asian people in her community.
The Tribunal concluded that Ms. Yaniv’s complaints regarding arm and leg waxing were brought for an improper purpose. She dismissed the complaints under s. 27(1)(e) of the Code.
Ms. Yaniv applied for costs against the respondents on the grounds that they used inflammatory language to name certain documents, attempted to submit irrelevant photographs of her, were complicit in an improper recording and dissemination of portions of the hearings, and made improper statements that had a harmful impact on the integrity of the Tribunal’s process. The Tribunal found that there was no evidence to support Ms. Yaniv’s applications for costs, and dismissed them in their entirety.
The Tribunal awarded costs to the represented respondents on the grounds that the complaints were filed for improper purposes; she mislead the Tribunal about the need for a publication ban; she was untruthful in her evidence about her genitalia; she engaged in extortionate behaviour, and she made false and unfounded allegations against counsel.
The Tribunal found that Ms. Yaniv’s improper filing of her complaints has had a significant negative impact on the Tribunal’s process and on each of the respondents. Filing the complaints costs Ms. Yaniv nothing and for a long time she benefited from a cloak of anonymity. The complaints consumed a large amount of the Tribunal’s scarce time and resources. Two of the complaints caused respondents to shut down their businesses.
Ms. Yaniv was ordered to pay $2,000 in costs for improper conduct to each of the three represented complainants. All the complaints were dismissed.
VIII. CONCLUSION
| a. | Ms. Yaniv’s complaints against Blue Heaven Beauty Lounge and Sandeep Benipal, Marcia DaSilva, Judy Tran, Pam Dulay, and Merle Norman are not justified. I dismiss them under s. 37(1) of the Code. |
| b. | Ms. Yaniv’s complaints against Sukhdip Hehar and Sukhi Beauty Dream Salon, and Hina Moin, were brought for improper motives. I dismiss them under s. 27(1)(e) of the Code. |
| c. | Ms. Yaniv’s applications for costs are dismissed. |
| d. | I order Ms. Yaniv to pay $2,000 to each of Ms. Benipal, Ms. DaSilva, and Mrs. Hehar as costs for improper conduct, pursuant to s. 37(4) of the Code. |
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Morgane Oger 
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