The Transgender Bait and Switch

How Canadian women lost their right to same sex spaces without anyone noticing

Over the last few years, something remarkable has happened. The idea that women are entitled to female only spaces for changing clothes, using the toilet, and sleeping has gone from something that everyone took for granted to a heresy that can turn you into a social outcast. Even the idea that males convicted of violent sexual offences can and should be placed in prison along side women is being justified in the name of human rights.

This article will examine how we got to this point in Canada and what we can do about it.

The first public resistance to these changes came in the form of opposition from some women’s groups to Bill C-16 in 2017. This bill amended the Canadian Human Rights Code to add gender identity and gender expression as prohibited grounds of discrimination. It is sometimes wrongly referred to as the source of all these problems.

In fact, the bill changed very little. It applied only to matters under federal jurisdiction such as banks, airlines and telecommunications and agencies of the federal government such as prisons.  In Canada, schools, hospitals, and most private businesses are governed by provincial or territorial human rights law. By the time Bill C-16 was passed, all the provinces and territories had added gender identity as a ground of discrimination to their human rights codes.

Furthermore, provincial and federal human rights tribunals had already been extending protection to transgender identified people on the grounds of discrimination on the basis of sex and /or disability. The addition of gender identity as an enumerated ground of discrimination was more symbolic than substantial.

The Early Case Law

[Note: In reviewing the early cases I will be using the pronouns and terminology used in the actual decision.]

The case law on transgender rights in Canada goes back over 20 years and many of the key cases were decided before gender identity was introduced as a ground of discrimination.

One of the earliest decisions on transgender rights to address the “washroom question” was the 81999 British Columbia Human Rights Tribunal decision in Sheridan v. Sanctuary Investments Ltd. (No. 3),. This was a complaint by a pre-operative transwoman that she had been denied access to the women’s washroom at a nightclub. Gender identity did not yet exist as a ground of discrimination, but the tribunal found that there was discrimination on the basis of sex.

The tribunal heard evidence from Gail Owen, a pre-operative transwoman and regional representative for the Public Service Alliance of Canada. She testified that “in her experience co-workers lose interest in which washroom a transsexual uses after about a month.”

Ferris v. Office and Technical Employees Union, Local 15 was another B.C. Human Rights Tribunal case concerning the use of washrooms by a transwoman. In this case the women’s washroom was a single use washroom which was kept locked. Employees needed to get a key to open it and could lock it from the inside.  There was a dispute with the employer over the complainant’s right to use the women’s washroom which became the subject of a human rights complaint. The complaint against the employer was settled before the hearing. However, the complainant also brought a complaint against her union on the grounds that it had discriminated against her by failing to represent her interests adequately. This complaint was upheld, and the union was ordered to pay damages.

Kavanagh v. Canada (Attorney General), was a 2001 Canadian Human Rights Tribunal case on the rights of transsexual inmates. The complainant, a transsexual male who was serving a life sentence for second degree murder challenged the policies of Correction Service Canada which required pre-operative transsexuals to be incarcerated with their birth sex and prohibited sex-reassignment surgery while incarcerated.

The decision was split. The blanket ban on surgery while in prison was found to be discriminatory but the policy of placing pre-operative transsexuals in male prisons was upheld. The tribunal heard expert evidence on the vulnerability of the female prison population to male abuse and concluded:

Based upon this information, we are satisfied that there is a legitimate, objective basis for concern with respect to the vulnerability of the female inmate population and the impact that the placement of an anatomical male would have on these women.

[156] The argument that we should not allow the discriminatory attitudes of female inmates to preclude the placement of pre-operative male to female transsexuals in female prisons is an attractive one, at first glance, and one which accords with a line of human rights jurisprudence concerning 'customer preference' as a defence to an allegation of discrimination. It is indeed no defence to a complaint of discrimination that an employer or service provider acted in a discriminatory fashion because of the demands of his or her customers. (27)

[157] However, having given this argument careful consideration, we have come to the conclusion that it does not fully take into account the unique context created by the carceral setting. What is being suggested here is that female inmates be asked to live, for extended periods of time, in very close quarters, with a person who is anatomically of the opposite sex. This would happen in a context where leaving would not be an option, were the situation to become intolerable for the female inmate. (28)

[158] It also strikes us as overly simplistic to say that the female inmate population would be reacting out of fear and ignorance, and that, with a little education, they could be taught to accept an anatomically male inmate in their facility. The difficulties that female inmates have in dealing with men are based, in part on lack of knowledge, but are also based on painful life experience. It appears from the evidence that many of these women are psychologically damaged, as a consequence of the physical, psychological and sexual abuse they have suffered at the hands of men. Like transsexuals, female inmates are a vulnerable group, who are entitled to have their needs recognized and respected.

This victory for women’s safety did not last. In 2017 the Corrections Service reversed its policy and now allows any male  inmate who self identifies as female to be placed in a prison for women.

Forrester v. Peel (Regional Municipality) Police Services Board et al, was an Ontario Human Rights Tribunal case from 2006 which concerned the process for strip searching of transsexuals. The police service at this time had a policy that where a male to female transsexual had undergone breast enlargement from hormone therapy but had not had bottom surgery, the top half of the body would be searched by a female office and the bottom half by a male.

The tribunal found that there was discrimination on the basis of sex and ordered the police service to change its policy. In future, transsexual persons were to be offered the option of being searched by a male officer, a female officer or a split search. Female officers did not have the right to refuse to participate in a search.

However, the tribunal also adopted a restrictive definition of transsexual. It distinguished between transsexuals and cross-dressers. It found that transsexuality, defined as having completed or seeking medical transition, was a medical condition while cross-dressing was simply a social role. Only transsexuals were entitled to special consideration. Cross-dressers would continue to be searched by male officers. The tribunal proposed a series of tests for identifying true transsexuals.

The Bait and Switch

Bait and switch selling refers to the practice of advertising goods at a low price to draw in customers but then, when they get to the store, telling them the advertised goods are sold out and pushing inferior goods at a higher price. This is illegal in Canada.

Something similar has happened in on the issue of transwomen in female spaces. The bait was the idea that transsexualism was a medical condition and that trans people required accommodation to prevent serious psychological distress.

The cases before about 2012 called extensive medical evidence which described the diagnosis and treatment of gender identity disorder. The diagnosis was based on the DSM-IV and treatment was according to the standards of care of The Harry Benjamin International Gender Dysphoria Association, Inc., which required, among other things, two independent psychiatric assessments before surgery and twelve months of living in the social role of the desired sex. Surgery was required to obtain change of sex markers on identification.

Doctors and psychologists presented evidence of the importance of lived experience as the opposite sex to prevent serious psychological distress. It was suggested that hormone treatments would reduce male sex drive and thus the risk of sexual assault.

These requirements ensured that transsexuals were rare and gave them an incentive to behave themselves so as not to jeopardize their coveted referral letters.

Post-surgical transwomen can still be a threat in female spaces. They retain most of their male physical strength and all of their male socialization. However, they are a much less frequent and less serious threat than cross-dressing males with a fully functioning penis and testicles.

The switch was the introduction of the principle of unrestricted self-identification. A person who identifies a woman is to be accepted as such. The requirements for a psychiatric diagnosis or medical transition were eliminated. The distinction between transsexual and cross-dresser were swept aside. No exceptions are recognized. Even convicted sex offenders are entitled to have their self-proclaimed identity accepted at face value.

The detailed medical evidence on gender dysphoria that was presented at the earlier cases has been replaced by uncritical acceptance of uncritical acceptance of a belief in gender identity rooted in Queer Theory rather than medicine or psychology.

This change happened very quickly, with minimal debate. While the United Kingdom has been having an ongoing public debate over self-identification under the Gender Recognition Act, change in Canada happened under the radar with little public debate or even awareness.

In 2012 case of Ontario Human Rights Commission in XY v. Ontario (Government and Consumer Services), the Ontario Human Rights Tribunal ruled that the requirement for surgery prior to obtaining a change of sex designation on a birth certificate was discriminatory and ordered the government to develop new rules. The current rules in most provinces require that a request for a change of sex markers be supported by a psychologist’s letter but this can now be obtained very easily, without a formal diagnosis, so we have an effective system of gender self-identification.

Self-identification began to creep in at a policy level even earlier. A labour arbitration decision from 2005 in Central Neighborhood House v Canadian Union of Public Employees, Local 4308, hum referred to a provision of the City of Toronto Shelter Standards which read:

Gender identity is self-defined. Sometimes this may not correspond with a person's physical appearance. Service providers need to accept gender identity as defined by the individual rather than by the perception of staff and/or other residents.

The introduction of gender identity as a separate ground of discrimination in most human rights codes, beginning with Ontario in 2012 shortly after the XY case, did not have any noticeable change on the decisions at the human rights tribunal level. However, it was clearly reflected in policy making as institutions became more willing to adopt transgender policies based on self-identification without waiting for a human rights complaint.

In 2019 the case of Yaniv v. Various Waxing Salons pushed the principle of self identification to its absurdist extreme. A pre-operative transwoman contacted a large number of waxing salons seeking waxing of either her genitals or arms or legs. When the women operating these salons refused, she brought a human rights complaint against each of them. A number of salons settled to avoid legal costs but seven defended the complaint.

The tribunal was able to deal with the genital waxing complaints easily. It found that the service of removing hair from a vulva is a different class of service from removing hair from a scrotum. A business that did not habitually offer the service of removing hair from male genitals could not be compelled to provide it. These claims were all dismissed.

The leg and arm waxing cases were more difficult. All of the respondents did offer these services and it was clear that the reason that they refused to serve Yaniv was because of her gender identity. Some of the defendants worked out of their homes and had safety concerns about being along with a strange male. A number were recent immigrants from Asia or South Asia and had cultural and religious objections to touching a strange male body. There was a clear conflict between rights to equal treatment based on gender identity and the rights of women to safety and respect for their religous and cultural values.

The tribunal dodged the issue by dismissing the claim on the basis of abuse of process. It found that Yaniv’s practice of going from salon to salon and bringing multiple complaints was motivated by greed and racism. The basic conflict remained unresolved. Meanwhile, some of the respondents lost their business.

Why Was There No Push-back?

Someone else will have to write the story of how women’s organizations let all of these changes take place but there are some things that are clear.

One is that, in most cases, there was no one to speak specifically for women’s interests. The early human rights tribunal cases were defended by a male controlled small business or male controlled government agency which had no interest in debating the long term impact of the decision on the safety of women.

The second is that push-back came at a high price. Nixon v. Vancouver Rape Relief Society, was a complaint to the B.C. Human Rights Tribunal by a post-operative transgender woman who was denied a position as a volunteer counsellor with a rape crisis centre.

In a hearing that lasted 21 days, the Society called evidence from experts and rape survivors on the importance of providing rape victims with counsellors who had “life long experience of living in a female body.” It did no good. The Society was ordered to pay Ms. Nixon damages and make major changes to its policies.

The decision was set aside on judicial review on the narrow ground that a provision of Human Rights Code permitted a not for profit organization set up for the benefit of an identifiable group (in this case women) to discriminate in favour of the members of that group and to determine for itself who belonged to the group.  The Court of Appeal dismissed Nixon’s appeal and the Supreme Court of Canada refused leave to appeal.

The Society was free to continue with its women for women policies, but at a cost. Transgender activists pressured the City of Vancouver to cut its annual grant and it has faced threats and dead rats being left at its public storefront.

What can be done?

Does this mean that women’s sex based rights have been entirely erased in Canada? As a matter of pure human rights law, I do not think so. There are five important principles to keep in mind.

The first is that human rights are not absolute. Every human rights code contains qualifying language that permits discrimination where there is “bona fide and reasonable cause” and limits the obligation to provide accommodation for a protected characteristic “to the point of undue hardship.”  Most provincial codes also have some specific exemptions including, in some provinces, specific protection for same sex facilities.

In each case, the specific provisions of the Code are important. A precedent from one province cannot be assumed to apply to another province where the Code has different language.

Working for legislation to strengthen explicit protection for single sex facilities based on biological sex is preferable to trying to remove gender identity as a protected ground.

The second is that trans-rights are human rights but so are a lot of other rights. In additional to gender identity, the codes include sex, sexual orientation, religion, and disability as protected grounds. These rights can conflict and there is no principle that requires that gender identity rights receive first priority.

Transgender activists often assume that such a principle does exist. While they never cease to point out the fundamental rights such as freedom of expression and freedom of religion are subject to reasonable limits, they never consider that this same rule may also apply to their rights. Instead, they assume that their rights are “‘apex rights’ in the sense that they automatically take priority over any other right or liberty of any other person or group…”

The third is that human rights codes don’t necessarily mean what the Provincial Human Rights Commissions say they do. The guidelines and policy statements you will find on any Commission website have no legal force. Only a decision of an independent Human Rights Tribunal, which is subject to review by a court, can give a binding interpretation of the law. Very few of the many possible conflicting interests in this area have actually been the subject of a contested case. Human rights commissions have simply extended what they believe to be the principles in the small number of decided cases.

The fourth is that every decision depends on its facts. Just because a tribunal found that a post-surgical transwoman was entitled to use a women’s washroom with private cubicles does not mean that a fully intact 16 year old male has a right to use a girls’ change room with shared showers. The is ample scope to argue that rights based on gender identity must sometimes give way to rights based on sex.

The fifth principle is that women and girls can claim a positive sex-based right to same sex spaces. The failure to provide facilities to meet the need of a vulnerable group is a form of discrimination and could be the subject of a human rights complaint. Women’s groups do not need to seek to intervene in a complaint brought by a trans-identified male to assert their rights.

The root of the problem is not the lack of good legal arguments in favour of sex based rights for women but the lack of political will to make them.

Many of the established women’s organizations like LEAF and the Elizabeth Fry Society have completely accepted the notion that transwomen are women. It has been left to new groups like CAWSBAR,  PDF Quebec and We the Females to take up the fight. These groups presently do not have the resources to fund major legal battles.

Human rights litigation was conceived as a means of protecting the vulnerable against the power of the state and corporate interests. In practice, it is available only to parties who can access government or institutional funding to cover the costs of a lengthy hearing and expert evidence. The fight for same sex spaces is still winnable but it will be long and hard.

This article is for general information only and should not be relied on as legal advice.