Application Denied: Kimberly Nixon v Vancouver Rape Relief Society

Even if one is a member of the select group of folks holding more nuanced attitudes towards gender, it must be recognized that there are still areas in which work is needed. In the recently dismissed application for leave in Kimberly Nixon v Vancouver Rape Relief Society (B.C.), the Supreme Court of Canada (“SCC”) dodged just such a bullet. Looking through the case history it becomes clear that there is a tension between the individual rights of Ms. Nixon to be free from discrimination on the basis of sex and the ability of the Vancouver Rape Relief Society to define itself and the interests it serves.

Judicial History

At the British Colombia Court of Appeal, the legal analysis of Vancouver Rape Relief Society v Nixon, 2005 BCCA 601, centered on BC’s Human Rights Code, RSBC 1996, c 210, ss. 8, 13, & 41. Ms. Nixon claimed discrimination as a male-to-female transgendered woman who was denied the opportunity to participate in the provision of peer counseling services provided by the Vancouver Rape Relief Society. This denial by the Society was communicated by Ms. Cormier, one of Rape Relief’s facilitators, who had identified Ms. Nixon as transgendered, based solely on her appearance. It was at this point that Ms. Nixon was asked to leave and informed by Ms. Cormier that “a woman had to be oppressed since birth to be a volunteer at Rape Relief and that because she had lived as a man she could not participate . . . men were not allowed in the training group.”

In the case at the Supreme Court of British Columbia, Vancouver Rape Relief Society v Nixon et al, 2003 BCSC 1936, Ms. Cormier listed the collective political beliefs that the Society requires its volunteers not to disagree with:

  1. Violence is never a woman’s fault,
  2. Women have the right to choose to have an abortion,
  3. Women have a right to choose who their sexual partners are, and
  4. Volunteers agree to work on an on-going basis on their existing prejudices, including racism.

The requirement that a woman be a woman from birth was stated to be complementary to the tenets to which all volunteers and members of the Society must subscribe in the Court of Appeal case.

Ms. Nixon was awarded $7,500 by the Human Rights Tribunal for her claim, but this was overturned on appeal. At the Court of Appeal Honourable Madam Justice Saunders stated “In my view, the behaviour of the Society meets the test of ‘discrimination’ under the Human Rights Code, but it is exempted by s. 41.”

s. 41 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.

The exemption provided by s. 41 applied was enough for Honourable Madam Justice Saunders to determine that the Society had a defense to Ms. Nixon’s claim.


The legal case is hardly a slam dunk as it stands. One wonders how it is that the Vancouver Rape Relief Society could not be attuned to a more nuanced understanding of sex and gender issues. The position of the Society as communicated by Ms. Cormier hardly reflects such a sophisticated attitude. The Society’s screening process for volunteers did not include an element to weed out transgendered individuals and as such leaves transgendered individuals in a position where their participation could depend on what is often referred to as passing. A transgendered woman’s ability to fully participate becomes dependent on whether her previous gender is in any way detectable.

The legal definition of transgendered seems to still be a grey area despite some human rights tribunal cases having touched on the subject (see Montreuil v National Bank of Canada, 2004 CHRT 7 and Kavanagh v Canada (Attorney General) (2001), 41 CHRR 119). It may be prudent for the law when given a chance, such as the one the SCC decided to pass up on in this case, to develop a greater understanding of transgenderism. If society believes what it is told of the lives of its transgendered members then the Vancouver Rape Relief Society’s complementary position that a woman from birth and be oppressed from birth to qualify as a volunteer need not exclude Ms. Nixon.

In the ambiguity surrounding the treatment of transgendered individuals in law leaves many issues that still need to be worked out. In this case, the early age at which Ms. Nixon realized her condition seems to suggest that she was indeed born a women, simply trapped in a male body. As for the Society’s additional requirement of oppression since birth, it is hard to imagine that existing in a body at odds with one’s identity would somehow fall short of fulfilling that requirement.

4 Responses

  1. Julie Lanz says:

    I respectfully disagree — I think the BC Court of Appeal (and the SCC) got this one right. I do sympathize with the claimant, and I think that there is still work to be done in order to ensure that the rights of G/L/T individuals are protected. However, in this case, I think that the rights and needs of the women who come to Rape Relief need to be given priority.

    I know that, if I had been assaulted and was coming to Rape Relief for support and counseling, I would be very uncomfortable if I was presented to a counselor whom I could identify as having been born male. I struggle with how to phrase this, as I don’t want to say that Ms. Nixon is not a woman, or that she doesn’t have the right to be treated like a woman in almost every facet of her life. But I think the needs of the woman who has been assaulted need to take priority over her rights in this case. Rape Relief is on the front line when it comes to assault. It seems intuitive to me that many women who have been assaulted, faced with someone who resembles a man, or who clearly used to be a man, would have difficulty opening up and getting the support they need from that person. I don’t mean that all women would, but certainly some. If Rape Relief feels that it better serves the needs of all of its its clients by having women only serve as counselors, I think that is a decision they are entitled to make.

    I also must take issue with the author’s interpretation of Rape Relief’s requirement that volunteers have experienced “oppression as a woman since birth” (to paraphrase). I don’t believe that anyone – Rape Relief included – would argue that a transgendered individual has not experienced oppression since birth. I certainly wouldn’t. But I would argue that Ms. Nixon has not experienced the same oppression that women experience. Ms. Nixon grew up in a man’s body; how can she know what it feels like to grow up as a woman in our society? I think that it is the specific knowledge of what it feels like to be a woman in western society — with the oppression that is, regrettably, still inherent in that role – that Ms. Cormier was referring to.

  2. If the above comment is correct, and we leave discretion up to Rape Relief to exclude employees based on their group affiliation, rather than individually, it would logically follow that if Rape Relief felt that White rape victims who comprise most of the clients would be uncomfortable with Black counselors, that Black counselors could be denied employment.

  3. steve parr says:

    Julie Lanz,

    While reading your argument, I couldn’t help but wonder of women (that is, women-born-women) who don’t embody feminine traits. Some non-trans women are taken as men, just as some non-trans men are taken as women. Are we to exclude some biological women from rape relief centres simply because their voice is a bit deeper, they have some facial hair, or have broad shoulders? Of course, no women’s-only relief centre would enact such an exclusion — but if the outward markers of gender are all we have to go on (as a mandatory genital-screen probably wouldn’t be the surest path to creating a safe space), then the distinction between trans-woman and non-trans butch woman become very blurry. Christine Boyle, lawyer for VRR, wrote in a recent article in Canadian Women’s Studies that in VRR, “alarm bells” go off when a masculine voice is heard within the space. Hmm.

    I support Kimberly Nixon because denying someone the gender they identify with is a horrible, inhumane thing to do. I understand and empathize with VRR and other rape relief centres concerns; however, by privileging a normative ‘female’, such centres marginalize not only trans persons but those who deviate, whether by choice or by genes from that norm. For every norm we choose to retain, we necessarily produce abject and marginalized subjectivities. VRR’s stance with regards to Nixon is ultimately counter-productive to ending patriarchical violence.


  4. Leanne says:

    When I first heard about this case, I rolled my eyes. Now…now I’m wondering how many transgendered require rape councilling, and if this person should look into starting a center . Afterall, if someone is trangendered, do they feel that the women at the rape center can identify with what they are going through?

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