Heated Wax Case Reveals Bare Motives of Animus

On Dec. 10, 1948, the United Nations General Assembly passed Resolution 217A, proclaiming and adopting the Universal Declaration of Human Rights. Despite the supposed importance and significance that conflicts such as WWII should have had in emphasizing the importance of human rights, their role in our society is being undermined in some quarters only 70 years after the creation of this milestone document.

Much of the derision around human rights discourse in Canada is focused on populations where there is less of a direct affinity or identification with the grounds or basis that is being protected. Often masked in clever rhetoric and heavily invoking academic and intellectual sources, these voices seek to remove human rights protections, or at least retain it along grounds that would support and empower existing power structures.

One of the clearest examples of this of late has been the controversies around Jessica Yaniv, a transgender woman who filed a human rights complaint in British Columbia. Her complaint was focused on several waxing salons in B.C., who had advertised a “brazilian wax,” either out of a small room in their home, or at the client’s residence.

The challenge was that Yaniv disclosed to the proprietors in advance that she has “male parts, and “has not “gone through surgery.” When the salons refused to provide the service, claiming they did not have the expertise to handle this type of procedure, she claimed discrimination under s. 8 of the Human Rights Code.

Those seeking to undermine the human rights regime, or to suggest that human rights have gone too far (typically in their objections to its inclusion of gender identity and gender expression), widely utilized the news stories around this case to make their point. The B.C. Human Rights Tribunal recently released their decision in Yaniv v. Various Waxing Salons (No. 2), denying the Applicant her relief. What makes the decision interesting is the basis upon which they did so.

The Tribunal found that the scrotum waxing that the Applicant sought was not a service that was customarily provided by the Respondents. They therefore did not deny her a service, and did not discriminate against her,

[23] Section 8 of the Code only applies to services which a person customarily provides to the public. Like all provisions of the Code, the meaning of “services” customarily provided to the public must be given a large and liberal interpretation: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (CanLII) at para. 31. To define the service too narrowly risks obscuring, and perpetuating, barriers which impede equal access to public life: Moore at paras. 27-31. At the same time, however, a service provider’s human rights obligations are grounded in their obligation to provide their particular service without discrimination. The Represented Respondents put it this way: “A grocer is not required to service a bicycle”.

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[36] In the case of genital waxing, I find that the differences in procedures, as well as its intimate nature, are important to defining the service. First, a scrotum is different than a vulva – regardless of the gender of the person it is attached to. Given the difference in techniques, training, and physical body parts, it is not appropriate to lump both together under the broader rubric of “genital waxing”, or – as Ms. Yaniv argues – “genital waxing for women”. The job is different depending on the specific genitals involved. This distinguishes the service from arm and leg waxing, which I discuss below, or other personal care services such as hair cuts.

[37] Second, I accept that this is an intimate service that a person must actively and specifically consent to provide. It requires the service provider to handle a stranger’s genitals for a prolonged period of time, in a private setting. I do not accept that a person’s decision to touch a stranger’s vulva then requires them to also touch a stranger’s penis and scrotum.

The Tribunal also failed to find discrimination by the salons where the Applicant requested waxing of the arms and legs, but for a different reason. It appeared as if the Applicant was filing these complaints for an improper purpose, specifically targeting small businesses to punish certain ethnic groups that she perceived to be hostile to LGBTQ+ rights.

Dismissal for an improper motive or a bad faith is a high bar, and cases are rarely dismissed on this basis. However, based on the volume of similar complaints and profiles of the Respondents, her particular animus towards certain racial, religious, and cultural groups, and her conduct in the proceedings, the Tribunal concluded that a certain pattern had emerged,

[108] I accept that Ms. Yaniv is partly motivated by her desire to fight what she perceives as pervasive discrimination against transgender women in the beauty industry. In that sense, her motives do align with Code’s purposes of eradicating discrimination and providing victims of discrimination with a means of redress. Further, if not for this application, I would likely have concluded that at least one of Ms. Yaniv’s complaints about arm and leg waxing was justified.

[109] However, I find that Ms. Yaniv’s predominant motive in filing her waxing complaints is not to prevent or remedy alleged discrimination, but to target small businesses for personal financial gain. In many of these complaints, she is also motivated to punish racialized and immigrant women based on her perception that certain ethnic groups, namely South Asian and Asian communities, are “taking over” and advancing an agenda hostile to the interests of LGBTQ+ people. These motives are not consistent with the Code’s purposes, and in particular its purpose of promoting a climate of understanding and mutual respect, where all are equal in dignity and rights: s. 3.

Evidence in a previous decision highlighted the Applicant’s specific position on Twitter as it related to various ethnic and religious groups, including those whose first language is not English. One of the parties, released from the complaint at an earlier stage, went as far as claiming that the Applicant was motivated by racism [para 73] during cost submissions.

The Applicant went as far as making derogatory assumptions about counsel for one of the Respondents, making frequent references to his supposed culture. These comments were also part of the Tribunal’s basis for awarding costs at an earlier stage [para 59].

Any good faith motivation the Applicant had was overtaken by her dominant or overriding purposes that run directly counter to the purposes of the Code; “It should go without saying that human rights complaints underlain by a racist agenda are antithetical to the Code’s purposes.” The demographics of the targeted Respondents, and the Applicant’s comments during the proceedings, were worth highlighting,

[125] I have already explained that Ms. Yaniv has brought most of these complaints against racialized women, many of whom are immigrants and/or do not speak English as a first language. Ms. Yaniv argues that this is only because these are the groups predominantly providing beauty services in her community. I do not accept that explanation. Ms. Yaniv has a grievance against certain ethnic and cultural groups in the lower mainland of BC which she perceives are failing to assimilate effectively into what she considers “Canadian” culture. These complaints are one way in which she is attempting to make this point and punish members of these groups.

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[128] Ms. Yaniv’s view is that “when people migrate to Canada, they’re required to follow Canadian culture and align to Canadian values” [DaSilva hearing]. In her view, these communities are failing to assimilate and are instead using their religion and culture as an excuse to discriminate against the transgender community…

[129] Ms. Yaniv’s mother agreed that the neo-Nazi ideology is to “take over areas like Hitler and make it their own” [Tran hearing]. She later testified that white people were “becoming the minority” in Canada and that Indian people were “forcing their beliefs and their culture on the white people” [DaSilva hearing]. I place limited weight on Miriam Yaniv’s views because they are her own. However, it is significant that this is evidence that Ms. Yaniv chose to elicit in support of her complaints and which is consistent with her own testimony and conduct. It supports my finding that Ms. Yaniv holds extremely negative views against South Asian and Asian people in her community.

This case was also notable for the public spectacle it created outside of the Tribunal. It was characterized by incredible levels of hostility, and in at least one instance involved in an unknown individual recording the proceedings, contrary to the Tribunal’s policies, and posting an excerpt on YouTube. The Tribunal was unable to have this recording removed. All of this undermines the authority of the Tribunal’s power and its role in enforcing human rights.

The parties were also engaged in a public dispute,

[156] Throughout these proceedings, it has been apparent that the dispute between these parties was being played out simultaneously in two fora: this Tribunal and the court of public opinion. Ms. Yaniv spent her days giving evidence and making argument to the Tribunal, and her evenings battling her critics in the media and on social media. There is no question that Ms. Yaniv’s complaints have engendered a certain level of public vitriol, some of which can be attributed to her own conduct and much of which is also connected to her identity as a transgender woman.

The Respondents, who were assisted by a charitable organization, who had themselves made certain statements about the Applicant that were denigrating in nature. However, the Tribunal did not find that they engaged in conduct that would have a significant impact on the integrity of the process or a significant prejudicial effect on the Applicant.

Instead, the Tribunal awarded $6,000 costs to the Respondents, on the basis that the Applicant filed these complaints for an improper purpose, had misrepresented herself to the Tribunal, and for other aspects of her conduct during the proceedings. Although these costs do not approach anywhere near what is observed in civil proceedings in court, they are considered high in the human rights context.

The costs provisions under s. 37(4)(a) of the Code for improper conduct was defined in Oger v. Whatcott (No. 7) as including conduct that:

a. occurs during the period of time when a complaint is progressing;

b. is connected to the complaint or stems from a person’s participation in the complaint before the Tribunal; and

c. has a significantly prejudicial effect on the processing of the complaint and/or an individual involved in the process.

In Ma v. Dr. Ianin G. M. Cleator and another and Bains v. Metro College Inc. and others (No. 2), the Tribunal noted that the quantum of human rights costs should be sufficient to signal the Tribunal’s condemnation of improper conduct, and to serve punitive purposes of such an award to deter others from committing similar acts.

In other jurisdictions, such as Ontario, there are no cost awards at all for human rights complaints. This has been justified on policy grounds on the basis that costs exposure would deter legitimate complaints from coming forward.

However, when on a range of quantum similar to what is observed in B.C., this may not be a significant concern. Instead, cost consequences could allow Tribunals to better signal what conduct is considered appropriate, and include some sanctions for parties who undermine the Tribunal’s purpose.

Although much of the discourse leading up to this decision attempted to characterize it as a conflict of human rights, with gender identity on one end and religious beliefs on the other, this decision was largely decided without any such apparent contradictions. Instead, it highlights once again that even individuals from historically marginalized groups who do experience some forms of discrimination can themselves hold discriminatory beliefs. When those discriminatory beliefs inform the dominant purpose for their outlook on human rights, those claims based in human rights must themselves bear strict scrutiny.

Ultimately, the resolution of this matter demonstrates that despite the complexities of different beliefs, practices, and identities, Canadians do have a way to live together. Not just with mutual tolerance, but with full respect and dignity, and a goal towards true inclusion. That is the promise of human rights that has been in place for 70 years, and the vision we should continue to work towards for the next 70 years and more.