diamond_rabbit
10th December 2005, 14:10
PRESS RELEASE
December 9 2005
NIXON HEADED TO SUPREME COURT OF CANADA
The B.C. Court of Appeal on December 7, 2005 dismissed Kimberly Nixon's
appeal in her ten year battle against Vancouver Rape Relief Society.
The Court said that Rape Relief had discriminated against Nixon, but
that as a women's group they are entitled to discriminate among women.
Rape Relief expelled Nixon from its volunteer training when it concluded
that she was a transsexual, even though her birth certificate shows her
to be female.
Said Nixon, "I feel vindicated that the Court of Appeal has held that
Rape Relief discriminated against me. Though we lost in the Court of
Appeal, I feel that we are more than half way to final victory. We have
always known that we would have to take this case all the way to the
Supreme Court of Canada."
The case has been hard-fought. After Nixon filed a human rights
complaint in 1995, Rape Relief applied for judicial review and argued
unsuccessfully that transsexual people were not protected by the Human
Rights Code. The B.C. Human Rights Tribunal then held in favour of
Nixon, and awarded Nixon the highest award of damages in the province's
history. But Rape Relief was successful in its application to BC
Supreme Court for judicial review and the tribunal decision was
overturned. At the BC Supreme Court level (which is a court inferior to
the Court of Appeal), the judge held that Rape Relief had not
discriminated against Nixon, because she had not "suffered an injury to
her dignity" since "any reasonable transsexual" would know she was not
welcome at Rape Relief. The Supreme Court also held that even if Nixon
was not a victim of discrimination, Rape Relief was protected from a
finding of discrimination by the 'group rights' section of the Human
Rights Code. That section provides that if a non-profit group has, as a
primary purpose, to advance the interests of a group of people sharing a
common gender, race, sexual orientation, etc, they are not
discriminating if they give a preference to members of that group. That
provision protects women's groups for example from being sued for
discrimination by men.
Each of the three judges of the Court of Appeal issued separate reasons
for dismissing the appeal. But simply put, the Court said that Nixon
had been discriminated against by Rape Relief, rejecting Rape Relief's
argument that no finding of discrimination should be made against them
because it would unfairly besmirch their reputation as an
equality-seeking group.
The Court then relied on a pre-Charter decision that held that a
Catholic school could dismiss a teacher if she lived married a divorced
man, since their teachers were supposed to be role models. The Court
decided that although Rape Relief had indeed discriminated against Nixon
when they expelled her from their training session, Rape Relief was
shielded by the 'group rights' section of the Human Rights Code. That
section says that if you are a non-profit group offering services to
people characterized by a common race, religion, sex, etc, then you are
entitled to discriminate among those people.
Said barbara findlay, one of Nixon's lawyers, "The decision is worrying
for all equality seeking groups. It means, for example, that if a group
of people with disabilities decided they didn't like people who were
HIV+ because they were probably gay, they are allowed to exclude people
with HIV. Or a women's group could say 'no lesbians' or 'no women of
colour'."
Findlay expressed confidence that Nixon would be successful in the
Supreme Court of Canada. "We think that the Supreme Court of Canada
will apply its post-Charter judgement out of Quebec, and reverse the
decision of the Court of Appeal on the meaning of the group rights
section.
The Court did not address the issue of whether Rape Relief had the right
to decide whether Nixon was a woman or not. The Court took for granted
that Nixon is a woman; but said that because Rape Relief is entitled to
discriminate among women, Nixon must lose the appeal.
Said findlay, "It is deeply troubling that after thirty five years of
feminist legal activism in Canada, a feminist group is asserting the
right to discriminate among women."
Nixon intends to appeal to the Supreme Court of Canada.
For more information:
barbara findlay QC 604 251-4356
Joseph Arvay QC 604 505-1728
The Law Office of barbara findlay QC
635-1033 Davie St.
Vancouver, B.C. V6E 1M7
t 604 251-4356 f 604 251-4373
e [email protected]
December 9 2005
NIXON HEADED TO SUPREME COURT OF CANADA
The B.C. Court of Appeal on December 7, 2005 dismissed Kimberly Nixon's
appeal in her ten year battle against Vancouver Rape Relief Society.
The Court said that Rape Relief had discriminated against Nixon, but
that as a women's group they are entitled to discriminate among women.
Rape Relief expelled Nixon from its volunteer training when it concluded
that she was a transsexual, even though her birth certificate shows her
to be female.
Said Nixon, "I feel vindicated that the Court of Appeal has held that
Rape Relief discriminated against me. Though we lost in the Court of
Appeal, I feel that we are more than half way to final victory. We have
always known that we would have to take this case all the way to the
Supreme Court of Canada."
The case has been hard-fought. After Nixon filed a human rights
complaint in 1995, Rape Relief applied for judicial review and argued
unsuccessfully that transsexual people were not protected by the Human
Rights Code. The B.C. Human Rights Tribunal then held in favour of
Nixon, and awarded Nixon the highest award of damages in the province's
history. But Rape Relief was successful in its application to BC
Supreme Court for judicial review and the tribunal decision was
overturned. At the BC Supreme Court level (which is a court inferior to
the Court of Appeal), the judge held that Rape Relief had not
discriminated against Nixon, because she had not "suffered an injury to
her dignity" since "any reasonable transsexual" would know she was not
welcome at Rape Relief. The Supreme Court also held that even if Nixon
was not a victim of discrimination, Rape Relief was protected from a
finding of discrimination by the 'group rights' section of the Human
Rights Code. That section provides that if a non-profit group has, as a
primary purpose, to advance the interests of a group of people sharing a
common gender, race, sexual orientation, etc, they are not
discriminating if they give a preference to members of that group. That
provision protects women's groups for example from being sued for
discrimination by men.
Each of the three judges of the Court of Appeal issued separate reasons
for dismissing the appeal. But simply put, the Court said that Nixon
had been discriminated against by Rape Relief, rejecting Rape Relief's
argument that no finding of discrimination should be made against them
because it would unfairly besmirch their reputation as an
equality-seeking group.
The Court then relied on a pre-Charter decision that held that a
Catholic school could dismiss a teacher if she lived married a divorced
man, since their teachers were supposed to be role models. The Court
decided that although Rape Relief had indeed discriminated against Nixon
when they expelled her from their training session, Rape Relief was
shielded by the 'group rights' section of the Human Rights Code. That
section says that if you are a non-profit group offering services to
people characterized by a common race, religion, sex, etc, then you are
entitled to discriminate among those people.
Said barbara findlay, one of Nixon's lawyers, "The decision is worrying
for all equality seeking groups. It means, for example, that if a group
of people with disabilities decided they didn't like people who were
HIV+ because they were probably gay, they are allowed to exclude people
with HIV. Or a women's group could say 'no lesbians' or 'no women of
colour'."
Findlay expressed confidence that Nixon would be successful in the
Supreme Court of Canada. "We think that the Supreme Court of Canada
will apply its post-Charter judgement out of Quebec, and reverse the
decision of the Court of Appeal on the meaning of the group rights
section.
The Court did not address the issue of whether Rape Relief had the right
to decide whether Nixon was a woman or not. The Court took for granted
that Nixon is a woman; but said that because Rape Relief is entitled to
discriminate among women, Nixon must lose the appeal.
Said findlay, "It is deeply troubling that after thirty five years of
feminist legal activism in Canada, a feminist group is asserting the
right to discriminate among women."
Nixon intends to appeal to the Supreme Court of Canada.
For more information:
barbara findlay QC 604 251-4356
Joseph Arvay QC 604 505-1728
The Law Office of barbara findlay QC
635-1033 Davie St.
Vancouver, B.C. V6E 1M7
t 604 251-4356 f 604 251-4373
e [email protected]