A post-operative male–to-female transsexual (“Nixon”) appealed from a decision on judicial review which found that she was not discriminated against when the Vancouver Rape Relief Society (“Society”) refused to allow her to volunteer as a peer counsellor with their organization

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Gender – Judicial review – Compliance with legislation

Vancouver Rape Relief Society v. Nixon, [2005] B.C.J. No. 2647, British Columbia Court of Appeal, December 7, 2005, Finch C.J.B.C., Southin and Saunders JJ.A.

Nixon was born a male but underwent sex re-assignment surgery and had her birth certificate amended to show that she was a female in 1990.

Nixon responded to an advertisement placed by the Society for volunteers who wished to train as peer counsellors for female victims of male violence. Nixon was successfully pre-screened, when she attended for training she was identified as a person who had not always lived as a female and was asked to leave. The Society denied her the opportunity to train as a volunteer because of its view 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”.

The Human Rights Tribunal upheld Nixon’s complaint that the Society had discriminated against her on the basis of sex under Sections 8 and 13 of the Human Rights Code, and awarded her $7,500.00 in damages. The Society then brought an application for Judicial Review of the Tribunal’s decision.

The reviewing judge concluded that the Human Rights Code did not extend to the impugned activity in this case. However, the reviewing judge also concluded that there was no discrimination established.

The Court held that Section 13 of the Human Rights Code did not necessarily apply because it dealt with discrimination based on sex in granting employment. The Court suggested that volunteer activity in the community may or may not be viewed as employment under s. 13, but ultimately left that question for another day.

Turning to Section 8 of the Human Rights Act which dealt with discrimination based on sex and providing a service, the Court held that there was discrimination.

The Court then moved on to whether the Society had a defense under Section 41 of the Code which reads:

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 Court reviewed the leading case on Section 41, Caldwell v. Stuart (1984), 2 S.C.R. 603 where Caldwell was a Roman Catholic teacher who was not re-hired for the following school year because she had married a divorced man in a civil ceremony contrary to Church dogma. The Court there confirmed that what is now s. 41 permitted the preference of one member of the identifiable group over another. The school authorities in that case were held to exercise a preference for the benefit of the members of the community served by the school and forming the identifiable group by preserving a teaching staff whose Catholic members all accepted and practised Catholic doctrines. The School was found to be entitled to make a preference among members of the Catholic community.

On this basis the Court concluded that the exclusion of Nixon was rationally connected to the Society’s work and was in good faith and fell under Section 41 of the Code. The purpose of the Society had been defined by the Tribunal as the provision of services to the victims of rape and being an educational force for progressive change in attitudes, laws, institutional procedures and to work for the prevention of rape. Nixon had argued that there was no requisite connection between the Society’s primary purpose and its discrimination of her based on sex.

The Court held that:

The reviewing judge was correct in following the guidance of Caldwell and concluding that a group can prefer a sub-group of those whose interests it was created to serve, given good faith and provided there is a rational connection between the preference and the entity’s work, or purpose. Just as the school was not required to establish that it only served practising Catholics in order to lawfully prefer practising Catholics in is hiring practices for purposes of the group rights exemption, so here the Society is not required to establish that it only serves women raised and who have lived as females. And just as the School was not required to show that it never employed non-Catholics, here the Society is not required to show it never provided services to transsexuals.

The Court dismissed the appeal with Southin J.A. noting that “Section 41 of the Human Rights Code is intended, in my opinion, to give, in cases within it, the right not to associate. Implicit, in my opinion, is that freedom of association includes freedom from association.”

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