In December 2005, the British Columbia Court of Appeal released its long-awaited decision in Vancouver Rape Relief v Nixon [Nixon]1. This is the highest level court in Canada to ever rule on a case of alleged discrimination against a transsexual person; in fact, Ms. Nixon’s is the first trans-based human rights case in Canada to move past the level of a Human Rights Tribunal. As the case has proceeded through the B.C. Human Rights Tribunal, the B.C. Supreme Court and most recently the province’s Court of Appeal, it has generated an ongoing dialogue in legal and feminist communities around the country that focuses on issues of identity, exclusion and the human rights of gender variant people. Following the release of the Court of Appeal’s decision, Ms. Nixon announced that she plans to seek leave to appeal to the Supreme Court of Canada.2

This may seem an unremarkable choice, however if Ms. Nixon does indeed go ahead with her plans to appeal, the Supreme Court will face its first opportunity to consider the human rights of gender variant people, specifically transsexual women, and the particular nature of discrimination experienced by individuals with gender identities that do not fit neatly into the traditional male-masculine/female-feminine sex/gender binary that so many people take for granted. The location of gender variant identities, and in particular transsexuals, in today’s legal and social climate may be likened to the position of gay, lesbian and bisexual persons 30 years ago – legally invisible, unprotected and subject to serious and injurious forms of discrimination. Ms. Nixon’s case therefore represents a significant opportunity for the Court to go “where no court has gone before” in addressing the human rights of gender variant individuals in society and under the law. If Nixon indeed seeks leave to appeal, will the Court take on the challenge presented by her case? Quite a challenge it is, as Nixon presents a number of important, but not easily resolvable questions about identity, equality and exclusion – questions the Supreme Court might not be ready to answer.

Kimberly Nixon was turned away from a volunteer training session at the Vancouver Rape Relief Society in 1995. Rape Relief held that Ms. Nixon’s male-to-female transsexual status meant that she did not have the life experience of growing up as a girl and living all of her adult life as a woman, experience that Rape Relief considers critical in allowing a woman to act as a peer mentor for other women using the rape crisis centre and the shelter. Following her expulsion from the training session, Kimberly Nixon filed a human rights complaint with the now defunct B.C. Human Rights Commission against Rape Relief, accusing the organization of breaching section 8 of the B.C. Human Rights Code, which proscribes denying "to a person or class of persons any accommodation, service or facility customarily available to the public … because of … sex;" and section 13, which states "[a] person must not … refuse to employ or refuse to continue to employ a person … because of … sex."3 Rape Relief denied discriminating against Nixon, invoking the Code’s section 41 “group rights exemption,” which specifies: "If a[n] … 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."4 The case was referred to the British Columbia Human Rights Tribunal.

The Tribunal released its decision in 2002, finding in favour of Ms. Nixon, and holding that Rape Relief had failed to demonstrate any connection between being treated as a woman for one’s entire life and one’s capacity to be an effective volunteer at Rape Relief. 5 The Tribunal judged that Rape Relief’s primary purpose is to serve women, and with no dispute over the fact that Nixon is a woman (as reflected by her amended birth certificate) Rape Relief had discriminated by drawing a distinction between her and other women. Rape Relief sought judicial review of the Tribunal’s decision, and at the B.C. Supreme Court, the decision was overruled. The Court applied the discrimination analysis in Law v Canada6, and held that Rape Relief’s exclusion of Ms. Nixon was not discriminatory because she had failed to prove an injury to her dignity. The Court further found that her exclusion from Rape Relief did not prevent Ms. Nixon from participating in the cultural life of society because it was not an exclusion from the mainstream economic, social and cultural life of the province.7 Ms. Nixon appealed this decision at the B.C. Court of Appeal, which upheld the result below in favour of Rape Relief, although it rejected the incorporation of the Law test in the human rights context. The Court found that although Rape Relief’s policy of excluding transsexual women constituted discrimination under the B.C. Human Rights Code, the section 41 exemption permits a women’s service organization to discriminate against a sub-group of women, namely transsexual women, based on its own subjective wishes, because it had acted in good faith and established a connection between its exclusion of transsexual volunteers and its work in counseling female rape victims.8

Whatever side of the debate you may find more compelling, or even if you find yourself stuck on the fence, it is undeniable that this case is ripe with questions about identity, exclusion and equality that, if the Supreme Court chooses to grapple with them, could change the legal landscape not just for gender variant and transsexual persons, but for anyone who suffers discrimination and files a human rights complaint in this country. My goal here is not to assert a preference for one side of the case or the other, but rather to highlight some of the issues raised by Nixon, particularly as they relate to identity and equality. That said, I must admit that if the respondent in this case was McDonald’s or Wal-Mart, instead of a women’s service organization, I, like many others, would likely have little trouble expressing my support for Ms. Nixon’s case. On the facts as they exist, however, a number of seemingly irreconcilable questions arise.

First and foremost, the Nixon case has sparked what is perhaps an unprecedented debate about the precise combination of social, psychological, and biological factors that constitute the category of “woman.” Is it primarily a matter or anatomy, in which case Kimberly Nixon’s post-surgical body and amended birth certificate qualify her as a woman, though she lived until her 30s as a man, or is it based on important lived experience, as Rape Relief contends? Rape Relief’s argument focuses on the fact that because Ms. Nixon lived and was socialized for a significant part of her life as a man, she lacks the relevant insights that are necessary to be an effective peer counselor to women who have been victimized by men. Ms. Nixon is not, according Rape Relief, a peer to its clientele.

Rape Relief maintains a hard-won women-only space because it rightly believes that its clients, many of whom have been victimized by men, are more comfortable in this environment. An important part of preserving a women-only space is that volunteers and staff members be, and appear to be, women. Here is where things start to get sticky. How much of this case rests on Kimberly Nixon’s physical identity and appearance? Who is to say what a “real” woman – a woman who has been socialized as a girl and women her whole life - does or does not look like? Are those who qualify as “looking like women” simply subscribing to sexist constructs of how a woman should dress, wear her hair, walk and talk? However you might choose to answer these questions, the importance of maintaining Rape Relief’s women-only space is undeniable in ensuring the safety and wellbeing of its clientele, and maybe the security of those women trumps the fashion choices of others. As Rape Relief neither screens for “masculine-looking” women nor allows the participation of “feminine-looking” transsexuals, Ms. Nixon argues that its blanket transsexual exclusion policy is both under and over-inclusive. All of this said it is noteworthy that Ms. Nixon does, for all practical purposes look like a woman…I think.

On another level, this is a case of dueling rights. Should individual rights triumph over group rights? Is Rape Relief’s clientele more worthy of protection than Kimberly Nixon? Although it is Ms. Nixon’s individual rights that are immediately at stake in the confines of this case, she has come to represent an entire community of gender variant people who suffer discrimination and harassment every day. Through the validation of Ms. Nixon’s individual rights, the door could be opened for the recognition of the human rights of all gender variant people, making Kimberly Nixon a veritable poster-child for Canadian trans-equality. One can only imagine the stress that more than 10 years of trials and appeals puts on one’s personal and professional life, and Nixon herself has stated that the drawn out trial has been difficult. “Every time there is another hearing,” said Nixon, “I lose another job because of the publicity.”9 Similarly, Rape Relief, a non-profit collective offering a variety of services including a crisis phone line, an emergency residential facility and ongoing support groups and peer counseling to women who have survived violence, has also been tied up in legal wrangling for the past decade. There is little doubt that the case has affected Rape Relief’s reputation, financial security and ability to offer critical services to women in its community. If the Supreme Court does decide to take on the Nixon case, I do not envy the judges who will be obliged to decide whose rights will triumph.

Finally, at the root of the legal conflict there lies a clash between formal and substantive understandings of equality. Substantive equality stands in contrast to formal equality in that it recognizes that differential treatment can at times promote equality because the accommodation of differences – the “essence of true equality”10 – frequently requires that distinctions be made. Ms. Nixon is arguing for the recognition of her sameness with non-transsexual women, advancing a formal equality approach where each individual – in this case every woman – is treated exactly the same despite real differences in their experiences of disadvantage. Rape Relief is requesting a substantive-equality handling of the case, taking into account the patterns of disadvantage and oppression in society and the particular context within which the unique facts of this case occur.

Allow me here to reiterate how much simpler this case might be had Kimberly Nixon been refused a job at McDonald’s instead of the opportunity to be a peer counselor at a women-only rape crisis centre. In the former scenario, as in many employment contexts where gender does not contribute to an individual’s ability to be an effective employee, McDonald’s has no right to discriminate against Ms. Nixon on the basis of her transsexual status. In a women-only space like Rape Relief - a space specifically created for the purpose of organizing against a gendered form of violence and oppression - gender does matter.11 Rape Relief argues that gendered life experience is relevant to the objectives and membership of the organization, and so its differential treatment of Ms. Nixon does not amount to discrimination. From a substantive equality perspective, would Nixon come down to a comparison of the disadvantage and oppression suffered by transsexual persons versus that suffered by women who have experienced rape and sexual assault? Such a “race to the bottom” among equality-seeking claimants is dignity-harming in and of itself, and presents an almost impossible balancing act without a clear winner no matter what the outcome.

All of the questions raised by Nixon v Vancouver Rape Relief offer no easy answers – and perhaps no definitive answers at all – making the possibility of the Supreme Court judges turning their minds to the issues both exciting and somewhat terrifying. What are the chances that the Supreme Court will hear Ms. Nixon’s case should she file for leave to appeal? Is the Court ready to wrestle with the legally problematized transsexual identity? My hunch says that if given the chance, the Court will not go there. The transsexual identity remains problematic for the mainstream, the body too complicated, the very possibility of recognizing and acknowledging the ultimate “other” too remote, particularly on the facts of Nixon. Ultimately, this case attests to the madness of our cultural rigidity. If children and adults were not jammed into pink or blue categories, with prescribed sets of feelings, behaviours and appearances, maybe gender variant individuals would not feel the need to alter their physical bodies to accord with the “norm” and society could acknowledge and respect a spectrum of identities and individuals.

1 [2005] BCJ No. 2647.
2 Ms. Nixon’s desire to apply for leave to appeal to the Supreme Court was announced in a number of forums, including: Lancaster House: Labour, Employment and Human Rights Law, online http://www.lancasterhouse.com/about/headlines_1.asp.
3 British Columbia Human Rights Code [RSBC 1996] Chapter 210, online http://www.qp.gov.bc.ca/statreg/stat/H/96210_01.htm.
4 British Columbia Human Rights Code [RSBC 1996] Chapter 210, online http://www.qp.gov.bc.ca/statreg/stat/H/96210_01.htm.
5 Nixon v Vancouver Rape Relief Society 2002 BCHRT 1.
6 [1999] 1 SCR 497.
7 Vancouver Rape Relief Society v Nixon [2003] BCSC 2899 at 154.
8 Vancouver Rape Relief Society v Nixon [2005] BCJ No.2647.
9 DisAbled Women’s Network Ontario (DAWN) http://dawn.thot.net/nixon_v_vrr.html
10 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 169.
11 Christine Boyle, “The Anti-Discrimination Norm in Human Rights and Charter Law: Nixon v Vancouver Rape Relief” (2004) U.B.C. L. Rev 31 at 56.