December 7, 2005
Court of Appeal Allows Exclusion of Trans Women
Egale calls for explicit protection of Trans people in Human Rights legislation
Vancouver—Three judges of the B.C. Court of Appeal today dismissed the appeal by Kimberly Nixon in the case of Nixon v. Vancouver Rape Relief Society. Ms. Nixon had been excluded from volunteering as a peer counselor at a women’s rape crisis centre because she is transsexual. She won her initial human rights complaint but that B.C. Human Rights Tribunal decision was overturned by the B.C. Supreme Court, leading to this appeal. This is the highest level of court in Canada ever to rule on a case of discrimination against a transsexual person.
Although the Court of Appeal held that the behaviour of Rape Relief in excluding transsexual women constituted discrimination under the Human Rights Code, it nevertheless ruled that s.41 of the Code permits a women’s service organization to discriminate against a sub-group of women, namely transsexual women, based on its own subjective wishes.
“Today the B.C. Court of Appeal gave its blessing to a clear case of discrimination,” said Gilles Marchildon, Executive Director of Egale. If women’s groups can exclude women based on their trans status, what is to prevent them from excluding other women based on race, religion or sexual orientation? Discrimination based on a person’s intrinsic nature or personal circumstances is just plain wrong.”
“This case sets a dangerous precedent,” said Cynthia Petersen, co-counsel for Egale. “It allows certain groups to discriminate internally within the communities they are created to serve.”
“Women-only organizations are important and deserve protection, but they should not be permitted to discriminate between women,” added Egale’s other co-counsel, Lindsay Waddell.
“If Kimberly Nixon appeals this decision to the Supreme Court then Egale will be there,” said Laurie Arron, Egale’s Director of Advocacy. “We view the appeal of this decision as critical, not only for trans people, but for anyone who faces discrimination and seeks to bring a human rights complaint.”
“Egale is adamant that the law must protect women’s right to create women-only spaces, but the fact is that trans women are women. Prohibiting this type of exclusion would not permit men to enter women-only spaces,” added Mr. Arron.
“This decision goes to the heart of trans people’s struggle for acceptance and respect,” said Tami Starlight, Board member of Egale. “Trans-identified people are today where lesbian, gay and bisexual people were 30 years ago, when they were legally invisible, unprotected and subject to ridicule. We should not have to bear this kind of discrimination.”
“Trans people are not explicitly protected under the B.C. Human Rights Code,” said Mary-Woo Sims, former B.C. Chief Human Rights Commissioner. “Trans people should not have to fit themselves into grounds designed to protect others. Only through explicit inclusion in human rights legislation can a clear message be sent that trans people are deserving of basic human rights protection. The government of B.C. and all governments should explicitly protect trans people from discrimination.”
Egale Canada advances equality and justice for LGBT people, and their families, across Canada. Founded in 1986, Egale’s work includes political action, legal interventions and public education and awareness.
For more info:
Lindsay Waddell, Mandell Pinder,
Cynthia Petersen, Sack Goldblatt Mitchell,
Egale’s co-counsel (bilingual)
Laurie Arron, Director of Advocacy, Egale
Gilles Marchildon, Executive Director, Egale
Tami Starlight, Board Member, Egale
Mary-Woo Sims, former B.C. Chief Human Rights Commissioner
The judgment is available at:www.courts.gov.bc.ca/Jdb-...A0601.htm