The Travesty of the Amy Hamm Decision

BC Nurses Set a Dangerous Precedent

The decision of the discipline panel of the British Columbia College of Nurses and Nurse Midwives finding Amy Eileen Hamm guilty of professional misconduct is a defeat for women, free speech, law, science and common sense. The message it sends is that any nurse in BC who claims that sex is binary and immutable or advocates for the right of women and girls to private spaces, be they washrooms, prisons or even rape shelters, free from the presence of biological males, does so at their peril. While the decision is not binding on other professional associations, in the present political climate, it will have a chilling effect on all regulated professions.

Amy Hamm is a registered nurse who worked as a psychiatric nurse in Vancouver, British Columbia. Her most recent position was as an educator in an inpatient psychiatric department. She dealt with transgender people as part of her job and there were no complaints about her conduct from her employer or any patient she encountered.

In 2020, Hamm collaborated with Christoper Elston (@BillboardChris) in posting a billboard reading “I ‘Heart” J. K. Rowling” in a prominent location in Vancouver. The billboard was a response to an essay Rowling had written setting out her position on transgender rights. It was taken down after a few days, but the publicity it generated led to two complaints against Hamm to her professional regulator, the British Columbia College of Nurses and Nurse Midwives. The case was investigated and proceeded to a hearing.

The process was punishment in itself. The hearing lasted 22 days over a period from September of 2022 to March 2024 and it took the panel nearly a year to write its decision. The decision is 115 pages long, consisting of 85 pages of reasons and a 30-page appendix which discusses individual posts. There will be a further hearing on penalty and costs. Hamm’s defence was paid for by the Justice Centre for Constitutional Freedom.

The Evidence

The College called 3 witnesses. The first was a staff lawyer who presented a report from a consultant who had reviewed Hamm’s social media profiles to locate potentially objectionable statements.

The next witness was Dr. Elizabeth Saewyc, who has a PhD in nursing and is director of the School of Nursing at the University of British Columbia. She was the principal investigator in the Canadian Trans Youth Health Survey. She testified on the experiences of transgender people in the health care system as a “vulnerable and marginalized group.” She also claimed, “publicly denying someone’s asserted gender identity or pronouns challenges their very existence as a trans person.”

Saewyc admitted that she did not have any clinical experience working with transgender people. The Trans Youth Health Survey which she referred to frequently actually has questionable relevance. The respondents to the 2019 survey were 44% trans-masculine (ie. female sex), 12% trans-feminine (ie. male sex) and 44% non-binary (sex not specified by likely mostly female). This is a very different population from the middle-aged male cross-dressers who self-identify as women to invade female spaces.

The College’s final witness was Dr. Greta Bauer, who was a professor of Epidemiology and Biostatistics. Her evidence dealt mainly with the “multidimensionality of sex and gender.” She also discussed transgender health care and the alleged harms of “misgendering” and denying transgender people access to their preferred washroom.

In addition to her own evidence, Hamm called three experts. Dr. James Cantor is a clinical psychologist and sexuality researcher. He discussed how treatment protocols for gender dysphoria have evolved from one based on careful psychological assessment to one based on informed consent and self-identification. These changes were not supported by good scientific evidence. Cantor criticized the concept of gender identity as a “subjective, social perception which cannot be falsified or verified” (Par. 99).

Hamm’s second witness was Dr. Kathleen Stock who was a former Professor of Philosophy. She was qualified as an expert on the use of language relating to sex and gender. Stock testified that the downgrading of sex in favour of gender identity made it harder for people to discuss the reality that humans are a sexually dimorphic species.

The third expert witness was Dr. Linda Blade who was a former professional athlete, professional coach, and kinesiologist. She testified on the physical differences between males and females and the dangers of allowing male athletes to compete in female categories in sports.

Hamm gave extensive and eloquent testimony as to her background, her advocacy work and the nature of her beliefs.

Even though the evidence took 22 days, it left the panel with a very incomplete understanding of a complex and contentious area. There was no evidence from a biologist, psychiatrist, endocrinologist or criminologist. Hamm’s lawyers tendered a number of academic articles which the panel declined to read because an expert witness had not accepted them as authoritative. The College’s witnesses took a narrow view of what is “authoritative.” Saewyc objected that the article “Reconsidering Informed Consent for Trans-Identified Children, Adolescents and Youth” published in the Journal of Sex and Marital Therapy was not an authoritative article as the journal “is not one of the generally recognized journals regarding transgender health care for children and adolescents.” In fact, the journal in question has published significant articles on gender medicine by leading experts including Annelou DeVries, Thomas Steensma and Kenneth Zucker. One suspects that Saewyc’s objection may be due to the fact that it is one of the few journals that has published articles critical of the gender affirming model.

The Issues and the Findings

The complaint considered over 30 statements which Hamm made on X/Twitter, in articles she wrote and in media interviews. The panel identified three issues:

(a) whether the Respondent’s [Hamm’s] off-duty statements made between approximately July 2018 and March 2021 are discriminatory and/or derogatory to transgender persons and whether she identified herself as a nurse or nurse educator in making them,

(b) whether there is a sufficient nexus between the Respondent’s off-duty statements made within that time frame and the profession of nursing, and

(c) if so, whether a finding that the off-duty statements constitute unprofessional conduct would unjustifiably infringe the Respondent’s rights under s. 2(b) of the Charter.

On the first issue the panel found that some of Hamm’s statements were discriminatory or derogatory and that she had identified herself as nurse or nurse educator in making them. Hamm did not describe herself as a nurse or nurse educator in her Twitter account, but many of her media articles contained a biographical footer which gave her profession.

On the second issue, the panel held that there was a nexus between the profession of nursing and those statements where Hamm was identified as a nurse or nurse educator. The issues of gender identity and self-identification were “enmeshed in medical and scientific understanding of the nature of sex and gender” and:

When a nurse uses their professional title or designation when speaking publicly about matters that have a medical or biological dimension, it is reasonable to infer that the public will be inclined to place more weight on their views.

On the third issue, the panel provided an extensive analysis and concluded that Hamm’s statements were not protected by the freedom of expression guarantees in section 2(b) of the Canadian Charter of Rights because they were not consistent with “charter values.”

Review of Specific Statements

The appendix of the reasons spends 30 pages reviewing the statements which were the subject of the complaint. Most of these statements were made on Twitter where Hamm did not identify herself as a nurse or nurse educator and were therefore out of the jurisdiction of the College. Nevertheless, the panel drew conclusions on each one.

It is not surprising that the panel found that a Tweet reading,

“not a fetish: Penis people getting boners when they wear a dress & wig; penis people publicly insisting they have menstrual cycles; penis people posing in sexual photos with infants suckling their nipples. Fetish: Having debates”

was derogatory and discriminatory to transgender people. However, Hamm did not identify herself as a nurse or nurse educator in this Tweet.

It is disturbing that the College lawyers seriously claimed that the “I ‘heart’ J. K. Rowling” billboard or the simple use of the hashtag #IstandwithJKRowling in a Tweet not related to gender issues could be considered discriminatory or derogatory of transgender people. At least, the panel disagreed with the College on this point.

However, in other findings, the panel stretched the definition of discriminatory and derogatory to transgender people to cover any disagreement with the political transgender agenda or the foundational beliefs of gender ideology.

For example, Hamm wrote that “…trans activists determined to infiltrate or destroy women-only spaces …” in an article on the Vancouver Women’s Shelter which discussed a decision by Vancouver City Council to rescind the shelter’s grant because it refused to allow males who self-identified as women access to its services. The panel found that this statement was “designed to lower the standing of transgender persons in the community and elicit outrage and contempt.”

The panel refers to two Tweets where Hamm discusses her disagreement with the liberal feminist position on transgender rights:

12:146 Liberal feminism refuses to acknowledge it’s entirely possible (and commonplace) to support trans people, want them to have equal rights and access to healthcare etc. while not believing it’s possible to LITERALLY change one’s sex.

12:147 From this, a mystical belief in a “gender soul” or the idea we can be born in the “wrong body” follows. Disagree? You’re a bigot who “hates trans people” or seeks to “erase their existence”.

The panel’s finding on these Tweets was:

The Panel interprets these tweets as the Respondent’s description of her understanding of liberal feminism as it relates to the issue of transgender rights and her observation that those who do not believe in the “gender soul” are bigots who hate transgender people. Nevertheless, the Panel agrees that the statements which discount a mystical belief in a gender soul are a form of discriminatory erasure as they deny the existence of transgender people.

Equating discounting or disagreeing with a particular group’s “mystical belief” with discrimination breaks new ground in restriction of freedom of expression in Canada. In a pluralistic society different Christian denominations, Jews, Muslims and atheists regularly discount and reject one another’s deeply held beliefs. Their right to do so is protected by the Charter. The panel decision grants transgender people a privileged status that no other group enjoys.

The caWsbar position statement outlines the case for preserving rights for women based on sex rather than gender identity. The statement asserts that there are only two sexes, humans cannot change sex, gender identity and gender expression do not negate the material reality of sex and spaces reserved for women and girls should continue to be segregated by sex rather than gender identity.

In her testimony, Bauer, said that the claim that there were only two sexes and humans cannot change sex “denies the possibility of transgender existence.” However, the panel found that this statement “without more” did not meet the threshold for discrimination.

However, the panel found that the statement that gender identity did not negate the material reality of women and girls was discriminatory as it “fail[s] to acknowledge the personally held sense of gender that transgender individuals have and excludes them from the possibility of being women and girls.”

Furthermore, the panel found that claim that only “cisgender” women and girls should be allowed access to sex segregated spaces was discriminatory as it was “based on stereotypical assumptions associated with a group without proper regard to the individual attributes and characteristics of transgender women and girls within that group.”

The panel examined an article Hamm wrote entitled “On feeling like a woman” and concluded:

The Panel finds the statement that “there is no absconding” from female bodies, the claim that the feeling of being a woman does not exist, and that there is no “incantation or initiation that can transcend bodily reality” without a female body are discriminatory to transgender women because they deny the possibility that individuals born into male bodies can feel and identify as women. This is precisely the type of erasure of transgender women which Dr. Bauer identified. The biographical footer at the end of the article identifies the Respondent as a nurse educator.

In a review of Love Lives Here – A Story of Thriving in a Transgender Family by Amanda (now Rowan) Jette Knox, Hamm wrote about “ … the falsehood that babies can be ‘born in the wrong body’ or that humans can change their sex... ” The panel found that statements in the review were derogatory to transpeople and noted that the biographical footer identified Hamm as a nurse educator.

In a podcast interview with Meghan Murphy on The Same Drugs, Hamm said:

… if you’re a feminine man, you should be protected on the basis of your sex. I don’t know why they’re to me, there’s no reason that you should have to be recognized literally as a woman or legally as a woman to have legal protections. It’s I think our sex covers discrimination. It just kind of muddies the water to add gender. When you add gender, it renders sex meaningless.

The panel concluded that these statements were discriminatory and derogatory, saying:

The suggestion that there is no reason that a transgender woman should have to be recognized as a woman to have legal protections is effectively advocating for the denial of legal protections to transgender women based on gender, including the right to be recognized as the gender they identify as. This is contrary to the law which protects individuals based on gender identity and gender expression.

The decision as a whole places very severe restrictions on the ability to have a meaningful debate on transgender rights. In fact, this debate has never really happened in Canada. The concept of gender identity was added to federal or provincial human rights codes without any consideration of what it means and what its consequences are. The principle of self-identification was introduced in Canada not through legislation but by the back door of a series of low-level human rights tribunal and court decisions. These decisions were inconclusive but a consensus developed among the professional and bureaucratic establishment that gender self identification was a human right. Anyone who challenges this consensus risks social “cancellation.” The panel’s decision adds the threat of legal sanction and restricts the right to debate the correctness and scope of the law, which is the fundamental purpose of freedom of expression in a democratic society.

Endorsing Sex Pseudoscience

The whole decision, like gender ideology, is rooted in a series of errors or law and fact.

One fundamental error in the decision is the rejection of the idea that sex is a binary characteristic defined by whether an organism is designed to produce large or small gametes in favour of a definition of sex as an amorphous collection of characteristics. Here is what the panel said:

165 Turning to the expert evidence, the Panel accepts the prevailing understanding in the field of science that biological “sex” and social “gender” are two functionally distinct concepts although there is interplay between them, and they may change over one’s life course. The Panel relies on the evidence of Drs. Saewyc and Bauer as well as the CIHI¹ definitions which define “sex” as “a set of biological attributes in humans and animals… primarily associated with physical and physiological features including chromosomes, gene expression, hormone levels and function, and reproductive/sexual anatomy” and “gender” as “the socially constructed roles, behaviours, expressions and identities of girls, women, boys, men, and gender diverse people… which influences how people perceive themselves and each other, how they act and interact, and with the distribution of power and resources in society”.

The basics of the scientific definition of sex is straightforward. Sexual reproduction requires the combination of a small gamete (sperm in humans) with a large gamete (egg or ovum) to form a zygote. The organism or part of an organism which has developed to produce large gametes is female and the organism or part which has developed to produce large gametes is male. The phrase “developed to produce” is important because an organism can still be male or female even if it does not actually produce gametes (e.g. a sterile male or post menopausal female). This definition hold across the animal and plant kingdoms. There are only two sizes of gametes so there cannot be additional sexes or a sex spectrum.²

Attacks on the sex binary rely on what has been called the “intersex flapdoodle gambit” which references rare and complex disorders of sexual development to create confusion around basic concepts. Differences or disorders of sexual development (DSD conditions) are rare chromosomal conditions which result in abnormal sexual development. There are over 40 distinct conditions and they are all variations of either the male or female development path rather than additional sexes or part of a spectrum of sex.

The College’s witnesses both presented flapdoodle type arguments. Saewyc claimed that “approximately 1.7% to 2% of the population are intersex” (Par. 29). This 1.7% figure consists mostly of conditions such as congenital adrenal hyperplasia in which there is no doubt of a person’s sex. The prevalence of DSD conditions where these is some ambiguity as to sex is closer to 0.018% or about 1 in 5000 births.

Bauer’s evidence contained obvious nonsense and it is disturbing that a panel which included two registered nurses could not see through it. Here is a summary from the reasons:

56. While Dr. Bauer acknowledged there is some general truth to the remaining caWsbar statements, she noted they are not completely accurate. Dr. Bauer reiterated that sex is multidimensional, and people may have a female characteristic for one dimension of sex and a male characteristic for another or be missing particular characteristics that are assumed to be biologically female or male. Dr. Bauer disagrees that people with disorders of sexual development are either female or male. She testified that sex chromosomes are not 100% immutable as a person can have different sex chromosomes if they receive a blood transfusion or bone marrow transplant and that they can change over the life course (e.g. the Y chromosomes deplete with aging for 40% of males by age 70).

Receiving a blood transfusion from a donor of the opposite sex will not affect the recipient’s sex. Red blood cells do not even have sex chromosomes and the body replaces its blood every 120 days. Loss of Y chromosomes is a condition that affects males and does not make them any less male. The main point is that chromosomes do not define sex which depends on reproductive function. In humans and all higher mammals, reproductive function can be destroyed but it cannot be changed to that of the opposite sex.

In Canada, there is also a legal objection to denying the binary nature of sex. Section 28 of the Charter of Rights and Freedoms refers to the equal protection of the rights of male and female persons. The French version reads “les deux sexes” which translates as “the two sexes.”

“Trans-erasure” and the Concept of the Gendered Soul

A second fundamental error in the panel’s decision is the belief that questioning the concept of gender identity or self-identification harms transgender people by “erasing” them or “denying their existence.” This is just one example from the decision:

Nevertheless, the Panel agrees that the statements which discount a mystical belief in a gender soul are a form of discriminatory erasure as they deny the existence of transgender people. (p. 105)

The panel is making the exceptional claim that avoiding discrimination against transgender people requires not only refraining from direct attacks but actively endorsing their belief system. Hamm responds to this in a comment on the decision in the National Post:

No one, living or dead, has ever had their existence dependent upon the recognition and validation of their internally held and unknowable self-perception. Nor has anyone died — ever — as a result of another person’s failure to recognize them as the person they would ideally like to be recognized as. Whether that be their belief about their gender or any other facet of their being.

Hamm’s views are supported by her expert witnesses. Cantor, who is the only witness who had experience treating patients with gender dysphoria, testified that he had not seen transgender clients who were traumatized by “misgendering” in a clinical context and did “not believe there is a reasonable probability that trauma or harm would be caused to transgender persons by using the word ‘woman’ to solely refer to biological women.”

Stock gave extensive testimony on the dangers of downgrading sex in favour of gender identity. This paragraph from the decisions summarizes some key points:

Dr. Stock explained the impact of downgrading sex relative to gender identity has had huge repercussions because biological sex has not gone away. She testified women and others have lost the ability to refer freely to facts about themselves such as that humans are a sexually dimorphic species which means on average that males are larger and stronger than females, which is relevant to many areas of social life. She believes we have lost the ability to talk about sex in relation to matters such as maternity and sexual orientation. If one removes the capacity to discuss sex, then one cannot talk about sexism, misogyny, sex-based violence, fairness in sports, and sexual orientation. Dr. Stock cautioned we not only lose the ability to point out problems such as the harms to women, but there is also a chilling effect on children who are very confused by these issues. She believes that the ability to talk about sex is being strongly discouraged through draconian policies and laws to the point where it is pronounced to be transphobic to talk accurately about biology or sex.

The concept of “trans-erasure” endorsed by the panel compels other people, and women in particular, to endorse a purely subjective and unfalsifiable internal sense of identity over the evidence of their own senses and their own verifiable experiences.

Protection of Female Spaces

The panel’s finding that questioning the belief that self-identified gender takes priority over sex is derogatory or discriminatory of transgender people erases women and girls as a separate category in human rights law and undermines the right to advocate for separate spaces based on sex. The differences in body structure which flow from the reproductive roles of the sexes make women and girls highly vulnerable to sexual assault by men and boys. Most victims of sexual assault are female and almost all perpetrators are male. Separate spaces for women and girls to sleep, use the toilet and change clothes are an essential protective measure.

A male who self-identifies as female still possesses most or all of the characteristics which make males in female spaces a threat. Only a few transwomen have had “bottom surgery” and most do not even take female hormones. Even hormones and surgery do not eliminate male physical advantage. A study in the United Kingdom found that transwomen showed the same pattern of sexual offending as other males. Opposition to trans-identified males in female spaces is not rooted in “pathogen disgust” at their gender identity but in reasonable concern about the risk posed by their male sex. Stock explained these concerns:

She [Stock] pointed out it is not complicated to explain why people are worried about females being in places where they undress, sleep, or are otherwise vulnerable to sexual assault, and having policies and laws that say any male who identifies as a woman can enter those spaces. She testified that the concerns are also about fear and privacy and menstruation and women wanting a private space without males around. Dr. Stock questioned how anyone is supposed to know whether a cisgender man is just pretending to be a woman to enter those spaces if all that is required is a feeling. One cannot argue with a feeling once it is declared.

The point here is not that transwomen pose an exceptional risk in female only spaces but that all males pose a potential risk to females. The panel’s decision makes it difficult for a nurse to discuss or explain this risk.

Freedom of Expression

The final major flaw in the panel’s decision is its treatment of freedom of expression. It was accepted that a finding that off-duty statements constituted professional conduct would impair Hamm’s freedom of expression under Section 2(b) of the Charter of Rights and Freedoms. The panel applied the Doré /Loyola test which was set out in the decisions of Doré v. Barreau du Québec and Loyola High School v. Quebec (Attorney General). Under this test, a decision which limits Charter protections will only be reasonable if it balances the interference with the Charter protected right with the statutory objectives or public good sought to be achieved.

The panel found that the objective sought to be achieved was the protection of the public and the integrity and reputation of the nursing profession by setting standards with respect to public speech. The panel then applied a proportionality test where it balanced this objective against so-called Charter values. The panel quoted Supreme Court cases which emphasize that freedom of expression is a fundamental Charter value and that it extends to opinions and beliefs which are “unpopular, distasteful and contrary to the mainstream.”

However, the panel found that, “The fact that the Respondent’s opinions are directed at a highly vulnerable community protected under s. 15 of the Charter necessarily bears on the proportionality analysis.”³ It referred to comments by the Supreme Court of Canada in Hansman v. Neufeld, which described transgender people as a marginalized group who occupied a “unique position of disadvantage in our society.”

Hamm’s lawyers argued that she was not seeking to discriminate against transgender persons but to argue for the sex-based equality rights of women and girls. The panel responded that “it possible to respectfully advocate for sex-based cisgender rights without making statements which denigrate and discriminate against transgender persons.”

It is hard to understand how this would be possible since the panel found that even referring to sex as a separate concept from gender identity is derogatory or discriminatory of transgender people.

The decision of the panel goes well beyond what the Canadian courts have found to be acceptable limits on freedom of expression. The Supreme Court provided this definition of hate speech in Saskatchewan (Human Rights Commission) v. Whatcott:

Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have. [Par 52]

Hate speech legislation, which the Supreme Court found is justifiable limit on freedom of expression applies only to language which would expose a person or group to “detestation and vilification.” The panel extended the legal test by finding that the College could sanction speech which was merely derogatory or discriminatory. They then extended its application by finding that actual ideas such as the belief that sex is binary and opposition to self-identification could be derogatory and discriminatory.

It is possible to justify more extensive restrictions on professional speech which are directly linked to professional practice, but most of Hamm’s statements did not directly concern medicine or nursing.

Furthermore, the argument that restrictions on freedom of expression are justifiable to protect disadvantaged and vulnerable groups has an internal contradiction. The decision as to which groups are considered disadvantaged and vulnerable must be made by someone in a position of power. The powerful can choose to recognize certain groups as disadvantaged for purposes of this special treatment and deny it to others. A favoured group automatically becomes less disadvantaged and even privileged in comparison with other groups. This approach is ultimately a pretext to enforce whatever the current elite consensus may be.

This has certainly happened with the transgender community. It is hard to think of another group for which a professional organization would be prepared to hold a 22-day hearing to silence a critic. Meanwhile, other disadvantaged groups, such as women in prison, suffer more because their ability to advocate for their rights has been limited.

Next Steps

The decision will certainly be appealed but success is uncertain. Canadian courts are reluctant to reverse a decision of an administrative tribunal unless there is a clear error of law. Meanwhile, nurses and other professionals who are question the current approach of gender identity will have to stay silent or chose their words carefully.

1. CIHI is the Canadian Institute for Health Information. It has adopted an ideologically influenced definition of sex and gender which raises problems that would require another article to address. https://www.cihi.ca/sites/default/files/document/measuring-health-inequalities-toolkit-sex-at-birth-stratifier-en.pdf

2. You can find further details in in multiple articles by Colin Wright of Reality’s Last Stand and an by in videos and articles by The Paradox Institute.

3. This is a questionable application of Section 15, which is the equality rights section of the Charter. The purpose of the Charter is to restrict the exercise of legislative authority. One section of the Charter cannot be used to justify restriction of rights of individuals under another section.