BC court backs Vancouver rape relief to exclude transexual volunteer.

Vancouver--The Vancouver Rape Relief Society is within its rights to exclude Kimberly Nixon, a post-operative male-to-female transexual woman from its volunteer training program, the British Columbia Court of appeal ruled.

Nixon, responding to an advertisement, was enrolled in the training course and was then excluded. The Society decided she could not be part of their program because only a woman who has been "oppressed since birth" cold be a volunteer counsellor at the agency and "because she had lived as a man she could not participate". Nixon then complained to the BC Human Rights Tribunal.

Nixon complained that the Society chose to distinguish her from the vast majority of women on the basis that her starting place on the continuum of sexual identity was a position other than one initially identified as female. The Society argued that the train ing and volunteer peer counsellor role, was neither a service customarily provided to the public within the meaning of the Code, nor employment within the meaning of s. 13 of the Code.

The Tribunal did not agree and found that the activity was both a service to the public and employment within the scope of the Code. The Human Rights Tribunal upheld Nixon's complaint that the Society had discriminated against her under two sections of the Human Rights Code and awarded her $7,500 in damages. The Society asked for a Judicial review. The reviewing judge accepted the Society's arguments and overturned the HRT's ruling. Nixon and the Tribunal then turned to the appeal court. The appeal was supported by Egale Canada, an organization that advocates for lesbian, gay, bisexual and trans-identified people, and their families. The three appeal court judges were unanimous in the decision to dismiss Kimberly Nixon's appeal that the Vancouver Rape Relief Society is covered by the exemption provisions in the Human Rights Code. Chief Justice Finch states that the "Society was entitled to give preference to women who are not post-operative transsexuals, because there is a rational connection between the preference and the respondent's work or purpose."

Justice Southin wrote: "To force people, especially those in an organization such as the respondent, which has its own radical agenda, to associate with those who for some reason deeply offend their own avowed principles, can lead not to acceptance or at least toleration, but, if not to hatred, at least to animosity." She added that the exemption provision of the Human Rights Code "is intended, in my opinion, to give, in cases within it, the right not to associate. That freedom of association includes freedom from association.

During the hearings several issue questions were examined. Is the volunteer training program a service available to the public under the Human Rights Code? The judges agreed that it was and therefore the Society's action was discriminatory. Is volunteer activity a form of employment subject to the Code? The judges did not come to a conclusion on this aspect of the case.

The Vancouver Rape Relief Society program includes a 24 hour Crisis Line, a Safe Shelter for Battered Women, and Support Group. It is staffed largely by volunteers. www.canlii.org/bc