“Where No Court has Gone Before…” Issues of Identity and Equality in Nixon v Vancouver Rape Relief
By: Jena McGill
May 23, 2006
In December 2005, the British Columbia Court of Appeal released its long-awaited decision in Vancouver Rape Relief v Nixon [Nixon]1.
This is the highest level court in Canada to ever rule on a case of
alleged discrimination against a transsexual person; in fact, Ms.
Nixon’s is the first trans-based human rights case in Canada to move
past the level of a Human Rights Tribunal. As the case has proceeded
through the B.C. Human Rights Tribunal, the B.C. Supreme Court and most
recently the province’s Court of Appeal, it has generated an ongoing
dialogue in legal and feminist communities around the country that
focuses on issues of identity, exclusion and the human rights of gender
variant people. Following the release of the Court of Appeal’s
decision, Ms. Nixon announced that she plans to seek leave to appeal to
the Supreme Court of Canada.2
may seem an unremarkable choice, however if Ms. Nixon does indeed go
ahead with her plans to appeal, the Supreme Court will face its first
opportunity to consider the human rights of gender variant people,
specifically transsexual women, and the particular nature of
discrimination experienced by individuals with gender identities that
do not fit neatly into the traditional male-masculine/female-feminine
sex/gender binary that so many people take for granted. The location of
gender variant identities, and in particular transsexuals, in today’s
legal and social climate may be likened to the position of gay, lesbian
and bisexual persons 30 years ago – legally invisible, unprotected and
subject to serious and injurious forms of discrimination. Ms. Nixon’s
case therefore represents a significant opportunity for the Court to go
“where no court has gone before” in addressing the human rights of
gender variant individuals in society and under the law. If Nixon
indeed seeks leave to appeal, will the Court take on the challenge
presented by her case? Quite a challenge it is, as Nixon
presents a number of important, but not easily resolvable questions
about identity, equality and exclusion – questions the Supreme Court
might not be ready to answer.
Nixon was turned away from a volunteer training session at the
Vancouver Rape Relief Society in 1995. Rape Relief held that Ms.
Nixon’s male-to-female transsexual status meant that she did not have
the life experience of growing up as a girl and living all of her adult
life as a woman, experience that Rape Relief considers critical in
allowing a woman to act as a peer mentor for other women using the rape
crisis centre and the shelter. Following her expulsion from the
training session, Kimberly Nixon filed a human rights complaint with
the now defunct B.C. Human Rights Commission against Rape Relief,
accusing the organization of breaching section 8 of the B.C. Human
Rights Code, which proscribes denying "to a person or class of persons
any accommodation, service or facility customarily available to the
public … because of … sex;" and section 13, which states "[a] person
must not … refuse to employ or refuse to continue to employ a person …
because of … sex."3 Rape Relief denied discriminating against Nixon,
invoking the Code’s section 41 “group rights exemption,” which
specifies: "If a[n] … 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."4 The case was referred
to the British Columbia Human Rights Tribunal.
released its decision in 2002, finding in favour of Ms. Nixon, and
holding that Rape Relief had failed to demonstrate any connection
between being treated as a woman for one’s entire life and one’s
capacity to be an effective volunteer at Rape Relief. 5 The Tribunal
judged that Rape Relief’s primary purpose is to serve women, and with
no dispute over the fact that Nixon is a woman (as reflected by her
amended birth certificate) Rape Relief had discriminated by drawing a
distinction between her and other women. Rape Relief sought judicial
review of the Tribunal’s decision, and at the B.C. Supreme Court, the
decision was overruled. The Court applied the discrimination analysis
in Law v Canada6, and held that Rape Relief’s exclusion of Ms.
Nixon was not discriminatory because she had failed to prove an injury
to her dignity. The Court further found that her exclusion from Rape
Relief did not prevent Ms. Nixon from participating in the cultural
life of society because it was not an exclusion from the mainstream
economic, social and cultural life of the province.7 Ms. Nixon appealed
this decision at the B.C. Court of Appeal, which upheld the result
below in favour of Rape Relief, although it rejected the incorporation
of the Law test in the human rights context. The Court found that
although Rape Relief’s policy of excluding transsexual women
constituted discrimination under the B.C. Human Rights Code, the
section 41 exemption permits a women’s service organization to
discriminate against a sub-group of women, namely transsexual women,
based on its own subjective wishes, because it had acted in good faith
and established a connection between its exclusion of transsexual
volunteers and its work in counseling female rape victims.8
side of the debate you may find more compelling, or even if you find
yourself stuck on the fence, it is undeniable that this case is ripe
with questions about identity, exclusion and equality that, if the
Supreme Court chooses to grapple with them, could change the legal
landscape not just for gender variant and transsexual persons, but for
anyone who suffers discrimination and files a human rights complaint in
this country. My goal here is not to assert a preference for one side
of the case or the other, but rather to highlight some of the issues
raised by Nixon, particularly as they relate to identity and
equality. That said, I must admit that if the respondent in this case
was McDonald’s or Wal-Mart, instead of a women’s service organization,
I, like many others, would likely have little trouble expressing my
support for Ms. Nixon’s case. On the facts as they exist, however, a
number of seemingly irreconcilable questions arise.
First and foremost, the Nixon
case has sparked what is perhaps an unprecedented debate about the
precise combination of social, psychological, and biological factors
that constitute the category of “woman.” Is it primarily a matter or
anatomy, in which case Kimberly Nixon’s post-surgical body and amended
birth certificate qualify her as a woman, though she lived until her
30s as a man, or is it based on important lived experience, as Rape
Relief contends? Rape Relief’s argument focuses on the fact that
because Ms. Nixon lived and was socialized for a significant part of
her life as a man, she lacks the relevant insights that are necessary
to be an effective peer counselor to women who have been victimized by
men. Ms. Nixon is not, according Rape Relief, a peer to its clientele.
Relief maintains a hard-won women-only space because it rightly
believes that its clients, many of whom have been victimized by men,
are more comfortable in this environment. An important part of
preserving a women-only space is that volunteers and staff members be,
and appear to be, women. Here is where things start to get
sticky. How much of this case rests on Kimberly Nixon’s physical
identity and appearance? Who is to say what a “real” woman – a woman
who has been socialized as a girl and women her whole life - does or
does not look like? Are those who qualify as “looking like women”
simply subscribing to sexist constructs of how a woman should dress,
wear her hair, walk and talk? However you might choose to answer these
questions, the importance of maintaining Rape Relief’s women-only space
is undeniable in ensuring the safety and wellbeing of its clientele,
and maybe the security of those women trumps the fashion choices of
others. As Rape Relief neither screens for “masculine-looking” women
nor allows the participation of “feminine-looking” transsexuals, Ms.
Nixon argues that its blanket transsexual exclusion policy is both
under and over-inclusive. All of this said it is noteworthy that Ms.
Nixon does, for all practical purposes look like a woman…I think.
another level, this is a case of dueling rights. Should individual
rights triumph over group rights? Is Rape Relief’s clientele more
worthy of protection than Kimberly Nixon? Although it is Ms. Nixon’s
individual rights that are immediately at stake in the confines of this
case, she has come to represent an entire community of gender variant
people who suffer discrimination and harassment every day. Through the
validation of Ms. Nixon’s individual rights, the door could be opened
for the recognition of the human rights of all gender variant people,
making Kimberly Nixon a veritable poster-child for Canadian
trans-equality. One can only imagine the stress that more than 10 years
of trials and appeals puts on one’s personal and professional life, and
Nixon herself has stated that the drawn out trial has been difficult.
“Every time there is another hearing,” said Nixon, “I lose another job
because of the publicity.”9 Similarly, Rape Relief, a non-profit
collective offering a variety of services including a crisis phone
line, an emergency residential facility and ongoing support groups and
peer counseling to women who have survived violence, has also been tied
up in legal wrangling for the past decade. There is little doubt that
the case has affected Rape Relief’s reputation, financial security and
ability to offer critical services to women in its community. If the
Supreme Court does decide to take on the Nixon case, I do not envy the judges who will be obliged to decide whose rights will triumph.
at the root of the legal conflict there lies a clash between formal and
substantive understandings of equality. Substantive equality stands in
contrast to formal equality in that it recognizes that differential
treatment can at times promote equality because the accommodation of
differences – the “essence of true equality”10 – frequently requires
that distinctions be made. Ms. Nixon is arguing for the recognition of
her sameness with non-transsexual women, advancing a formal equality
approach where each individual – in this case every woman – is treated
exactly the same despite real differences in their experiences of
disadvantage. Rape Relief is requesting a substantive-equality handling
of the case, taking into account the patterns of disadvantage and
oppression in society and the particular context within which the
unique facts of this case occur.
Allow me here to reiterate
how much simpler this case might be had Kimberly Nixon been refused a
job at McDonald’s instead of the opportunity to be a peer counselor at
a women-only rape crisis centre. In the former scenario, as in many
employment contexts where gender does not contribute to an individual’s
ability to be an effective employee, McDonald’s has no right to
discriminate against Ms. Nixon on the basis of her transsexual status.
In a women-only space like Rape Relief - a space specifically created
for the purpose of organizing against a gendered form of violence and
oppression - gender does matter.11 Rape Relief argues that gendered
life experience is relevant to the objectives and membership of the
organization, and so its differential treatment of Ms. Nixon does not
amount to discrimination. From a substantive equality perspective,
would Nixon come down to a comparison of the disadvantage and
oppression suffered by transsexual persons versus that suffered by
women who have experienced rape and sexual assault? Such a “race to the
bottom” among equality-seeking claimants is dignity-harming in and of
itself, and presents an almost impossible balancing act without a clear
winner no matter what the outcome.
All of the questions raised by Nixon v Vancouver Rape Relief offer
no easy answers – and perhaps no definitive answers at all – making the
possibility of the Supreme Court judges turning their minds to the
issues both exciting and somewhat terrifying. What are the chances that
the Supreme Court will hear Ms. Nixon’s case should she file for leave
to appeal? Is the Court ready to wrestle with the legally problematized
transsexual identity? My hunch says that if given the chance, the Court
will not go there. The transsexual identity remains problematic for the
mainstream, the body too complicated, the very possibility of
recognizing and acknowledging the ultimate “other” too remote,
particularly on the facts of Nixon. Ultimately, this case
attests to the madness of our cultural rigidity. If children and adults
were not jammed into pink or blue categories, with prescribed sets of
feelings, behaviours and appearances, maybe gender variant individuals
would not feel the need to alter their physical bodies to accord with
the “norm” and society could acknowledge and respect a spectrum of
identities and individuals.
1  BCJ No. 2647.
Ms. Nixon’s desire to apply for leave to appeal to the Supreme Court
was announced in a number of forums, including: Lancaster House:
Labour, Employment and Human Rights Law, online http://www.lancasterhouse.com/about/headlines_1.asp.
3 British Columbia Human Rights Code [RSBC 1996] Chapter 210, online http://www.qp.gov.bc.ca/statreg/stat/H/96210_01.htm.
4 British Columbia Human Rights Code [RSBC 1996] Chapter 210, online http://www.qp.gov.bc.ca/statreg/stat/H/96210_01.htm.
5 Nixon v Vancouver Rape Relief Society 2002 BCHRT 1.
6  1 SCR 497.
7 Vancouver Rape Relief Society v Nixon  BCSC 2899 at 154.
8 Vancouver Rape Relief Society v Nixon  BCJ No.2647.
9 DisAbled Women’s Network Ontario (DAWN) http://dawn.thot.net/nixon_v_vrr.html
10 Andrews v Law Society of British Columbia,  1 SCR 143 at 169.
11 Christine Boyle, “The Anti-Discrimination Norm in Human Rights and
Charter Law: Nixon v Vancouver Rape Relief” (2004) U.B.C. L. Rev 31 at