The B.C. Court of Appeal will hear the appeal in Nixon v Rape Relief on April 4, 5, and 6 in Vancouver. At issue in the appeal are two questions. Can and should a womens service organization decide who is a woman? And whether there is a new and more stringent test for proving discrimination in human rights cases.
The case has attracted attention at every step of the previous three hearings. Womens organizations across the country have followed the case closely. Vancouver Rape Relief is in a minority among B.C. womens organizations in turning away a transwoman. A 2002 study found that most B.C. womens organizations have developed trans-inclusive policies.
In light of the studys results, Rape Reliefs position is puzzling. Like other women, Nixon has been battered by her male partner. Like other women, Nixon has been sexually assaulted. Like other women, Nixon received help and support from a womens peer support group, Battered Women Support Services. And like some other women, Nixon wanted to give something back to the womens community by volunteering at a womens peer counseling centre says barb findlay QC, Nixons lawyer.
The judge in this case said that Kimberlys dignity could not have been affected by being excluded by a small backwater organization like Rape Relief. He said it wasnt as bad to be excluded by Rape Relief as to be refused a cup of coffee in a restaurant. But the judge doesnt understand says Tami Starlight., a Trans Alliance Society board member. Rape Relief teaches that womens peer counseling organizations are crucial for women recovering from male violence, because so often men are able to convince women that the assault or the sexual violence is our fault. In womens peer counseling organizations women are able to rebuild self esteem and learn better survival strategies.
Egale Canada, a national organization that advances equality for lesbian, gay, bisexual and trans-identified people in Canada, has intervened in the appeal. Lindsay Waddell, one of Egale's lawyers, says that "Egale views this case as critical, not only for trans people, but for anyone who faces discrimination and needs to bring a Human Rights complaint."
Nixons case has also attracted the support of the B.C. Human Rights Defenders. We are very concerned that the arguments being advanced by Rape Relief in this case will make it harder for every human rights complainant in the province, and possibly in other jurisdictions across the country to prove its case says Mary-Woo Sims, formerly head of the B.C. Human Rights Commission and now Chair of the Defenders. The Attorney General supports Rape Reliefs argument that the burden of proof in human rights cases should now be more onerous this is the same Attorney General who slashed human rights services in the province in 2002 and promised that he would be responsible for ensuring the human rights of all British Columbians. I think the Attorney General should be embarrassed about his human rights record! Sims, who was also a founding mother of the Vancouver Womens Against Violence Against Women Rape Crisis Centre also feels that this case is important for all women who experience violence. It is time to recognize that transwomen, like other women are subjected to violence and that services, including those available through rape crisis centres be available to all women.
Paul Moist, president of CUPE in supporting Nixons case said, History teaches us that womens rights have often been achieved only for some women. White women, but not native women or women of colour, were granted the vote, for example. We have to ensure that our human rights work support every person. CUPE was awarded the prestigious Citizenship Award by the University of Toronto Sexual Diversity Studies Department, in recognition of that unions work on behalf of trans, lesbian, gay and bisexual people.
The drawn-out case has been very hard on Kimberly Nixon. Every time there is another hearing, said Nixon, I lose another job because of the publicity. Still, it is important to me to continue to fight this case. I know that if it hadnt been for the support I got from Battered Womens Support Services I wouldnt be here today, and I want that support to be available to all women victimized by male violence.
Backgrounder March 26, 2005
in the Case
Rape Relief responded to the human rights complaint by taking judicial review to BC Supreme Court to argue that, because the Human Rights Code didnt include gender identity, transsexuals like Ms Nixon had no human rights in B.C. But the court found that Ms Nixon, whose birth certificate shows her gender as female, was a woman under the law in B.C. and was protected from discrimination under the Code on the ground of sex, rejecting Rape Reliefs argument that only real women were protected from discrimination under that head. The court referred Nixons case to the Human Rights Tribunal for determination.
The Human Rights Tribunal found that Nixons rights had been violated, and awarded her the highest award for damages that any complainant had ever received in B.C.
Once again, Rape Relief responded by taking judicial review. In B.C. Supreme Court Rape Relief argued that the Tribunals decision was wrong. Though Nixon was legally a woman, they argued, that wasnt the end of the matter. Vancouver Rape Relief is a women only organization and as such is entitled to decide if a woman is woman enough for them. And Kimberly Nixon was not. In any event, they argued, a new and more burdensome test should apply to determine if Nixon was discriminated against. Nixon should have to prove an injury to her dignity. Any reasonable transsexual woman should have known that she should not apply to Rape Relief.
The BC Supreme Court this time agreed with Rape Relief, and overturned the tribunals decision. Nixons appeal to the Court of Appeal seeks the restoration of the original decision by the BC Human Rights Tribunal.
Kimberly Nixon first contacted Battered Women Support Services (BWSS) after a woman in a restaurant overheard her describing being battered by her male partner gave her a note with BWSS contact information and a suggestion that she call. Nixon called; terrified that she would be turned away because she was transsexual. But though Nixon informed BWSS in her first call that she was transsexual, it made no difference. Nixon participated in one-on-one, and then in group counseling, offered by women who had themselves survived male violence.
After being expelled by Rape Relief, Nixon returned to BWSS and trained there to be a peer counsellor. Her trainer described her as a superior counsellor of battered women. Nixon later worked at a womens transition house, Peggys Place.
The study referred to is an M.A. thesis by Caroline White, Re/Defining Gender and Sex: Educating for Trans, Transsexual and Intersex Access and Inclusion to Sexual Assault Centres and Transition Houses (UBC, 2002). The study is available online at www.barbarafindlay.com, by clicking on the link to articles.
Though we are accustomed to thinking of gender as easily ascertained at birth, and being only Male or Female, sometimes it is not possible to tell what gender a child is because of physical anomalies. Those are intersex people, who have historically been mistreated by the medical profession who have urged parents to have their intersex children surgically altered and raised in one gender or the other without telling the children about the condition.
Gender is multi-factorial. For most people, chromosomes, genitalia, secondary gender characteristics, social role, and gender identity (ones own innate sense of gender) are congruent. But some people have genitalia which dont match their knowledge of their own gender. They are transsexuals, often described as born in the wrong body. The only medical treatment for transsexuality is sex reassignment surgery, to make the genitals conform to ones sense of their own gender. A transsexual can have their birth certificate reissued in their true gender once they have completed sex reassignment surgery.
Transsexuals are a minority among transgender people people who experience themselves as both male and female, some or all of the time. Transgender is an umbrella term which includes people who identify as both, or neither, male or female; cross-dressers; and drag kings and queens.
Nixons case is the first case in Canada to proceed past the level of a human rights tribunals. Human rights tribunals in Quebec and B.C. have consistently held that trans people are protected by human rights legislation and have the right to use gendered facilities in their true gender, whether or not they have had sex reassignment surgery.
The decisions to date are available on the web:
v Nixon (BCSC#1)
Nixon v Vancouver
Rape Relief Society (BC Human Rights Tribunal
v Nixon (BCSC#2)
Trans Action Canada Advancing the equality rights, social justice, health care and community access for all transsexual and transgender people in Canada.
Egale Canada Egale Canada advances equality and justice for lesbian, gay, bisexual and trans-identified people, and their families, across Canada. Read the Egale backgrounder on Nixon case (added April 4, 2005)
and Human Rights