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.

Analysis

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.