Kimberly Nixon vs Vancouver Rape Relief

Before I go to bed . . . again, I wanted to post barbara findlay’s statement on the decision of the BC Supreme Court to decline her client Kimberly Nixon’s appeal against Rape Relief. Barbara findlay is a noted lawyer for the queer community in Vancouver and was the lawyer for Little Sisters Book Emporium. I think something maybe other people in the blogs have failed to note about the Nixon decision is that it has a wide impact on many other issues of discrimination. Anytime the Supreme Court makes a decision, then that case can be applied to other cases. In this instance the doors have been opened for all organizations to decide who is and who is not allowed to be a part of their group based on their identity, be that trans, female, queer, native, etc etc. Also, it’s just disgusting to see so-called progressive women’s groups attacking transgendered and transsexual people. This decision is nothing to cheer about and is putting all minorities in jeopardy.

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I have sad news to report.

After a twelve-year, four-hearing battle, Kimberly Nixon’s case for trans
rights has been stopped in its tracks. Kimberly Nixon is a post-operative
transsexual woman who was expelled from Rape Relief, a Vancouver women’s service and shelter, because she was not “born a woman”.

She won a Rape Relief challenge which argued that trans women had no rights under the ‘gender’ section of the human rights code. And she won the largest amount of money ever awarded by the BC Human Rights Tribunal at the time.

But she lost when Rape Relief took judicial review (a form of appeal) of the human rights tribunal decision. Nixon lost again when we appealed to the B.C. Court of Appeal.

Because the Court of Appeal decision was 3-0 against Kimberly, we had to request permission to take our case to the Supreme Court of Canada. That court, which heard only ten cases in its winter term from across the country, decides which few of the cases in which an appeal is requested it can hear.

And today they refused to hear Kimberly Nixon’s.

What is the result?

The legal result is that in B.C. at least, the Court of Appeal judgement stands. That in turn means that any group organized on the basis of disability, on the basis of religion, etc, and that provides services, can REFUSE to provide those services to anyone in the group that they don’t like. They are free to discriminate.

Queers are particularly vulnerable to such discrimination. Disability groups have historically excluded people with HIV for example. Many religious groups exclude queers. There was a case this week in which a Victoria archbishop fired a priest and an administrator in the parish. The reason? The administrator had admitted to a parishioner that he was gay; the parishioner spoke to the bishop. The bishop told the priest to get rid of the administrator; the priest refused. So the priest was also terminated.

Under the Nixon decision, that is perfectly legal.

But there is another result. Kimberly’s case, though technically a loss, is a victory for trans people because it is through her courageous pursuit of this case over many years, and the profile that this case has had, that the Canadian women’s movement and in particular Canadian women’s shelters have had to come to grips with the issue of service to trans women. Happily, almost all women-only services across the country have developed policies inclusive of trans women.

Trans people will continue to use the courts as one strategy to achieve legal and social equality in this country.

Where to from here?

This case, though ‘persuasive’ to courts in other provinces, applies only In British Columbia. So anyone with a similar issue in another province can (and should) file a complaint. And people anywhere in Canada can file human rights complaints if they are discriminated against by anyone except a women-only service.

Costs

The Supreme Court of Canada ordered costs against Kimberly for the application for leave to appeal. It is our expectation that Rape Relief will content itself with its victory rather than to be so unkind as to go after Kimberly for money she does not have. Nixon, who is currently employed doing award-winning historical restorations in Vancouver, was on social assistance for nine years.

I am sure Kimberly would appreciate hearing from people. It is a lonely place that she is in right now. You can send mail to me at the address below; or email me at this address, and I will pass everything along to her.

Questions

If you have any questions please let me know.

barbara findlay
Counsel for Kimberly Nixon
The Law Office of barbara findlay QC
635-1033 Davie St.
Vancouver BC V6E 1M7
604 251-4356
F 604 251-4373