Transgenderism Prevails Over Whatcott’s Truth

When Toby’s Act (Bill 33) passed in Ontario in 2012, the jurisdiction became the first in Canada to explicitly add gender identity to a human rights code.

Ontario’s Human Rights Commission had previously taken the position that gender identity was still a protected ground under the Ontario Human Rights Code based on the ban against sex discrimination, and the Human Rights Tribunal agreed with this interpretation in several cases, including in Hogan v. Ontario (Health and Long-Term Care).

In this 2006 case, the province argued that if the Ontario Code intended the definition to extend to these grounds of gender identity, it would have included those words. The Tribunal rejected this position, and stated,

[127] …the majority concludes that the construction of the terms sex and gender are flexible enough to enable it to conclude that transsexuals and the intersexed fall within the ground of sex to recognize the Code’s special nature and purpose of the enactment, and to give it an interpretation that advances its broad purposes to protect every person from unlawful discrimination on the ground of sex. To conclude otherwise may deny transsexual or intersexed persons the protection of the Code on the ground of sex because of their ambiguous gender…

Accordingly, the majority puts forward this proposition, transgenderism is the sexual identity of a person and it is of critical importance to demand or attract protection under the Code under the ground of sex.

Supporting this conclusion, the Tribunal referred to other legislative changes in jurisdictions like the United Kingdom, United States and the European Union, where transsexualism was considered a form of sex discrimination. The subsequent amendment of the Code in Ontario ensured this interpretation would prevail.

Soon after Toby’s Act, the B.C. Human Rights Code was amended under Bill 27, Human Rights Code Amendment Act, 2016 to similarly amend the human rights legislation there, and the Canadian Human Rights Act was amended under Bill C-16, 2016 the following year. These changes of course were not without controversy, especially among those who have religious beliefs in these areas.

One of the most notorious religious activists on the subject is William Whatcott, who took his matter all the way to the Supreme Court of Canada in 2013 over his freedom of expression rights around homosexuality in schools. The Court found that the Saskatchewan Human Rights Tribunal’s decision that the fliers distributed by the Respondent were likely to expose homosexuals to hatred was reasonable.

The Respondent in this case was found in another human rights decision this week involving fliers, in Oger v. Whatcott (No. 7), coming out of the British Columbia Human Rights Tribunal, where the Complainant was awarded $55,000 in damages.

Once again, the Respondent was distributing flyers, but this time the focus was on gender identity, and the target was a specific candidate for public office who, if elected, would be the first transgender member of a legislature in Canada. The Complainant had been particularly careful to avoid addressing issues affecting the transgender community, as she was aware of the stigma that can be associated with this identity.

The Respondent’s beliefs are that gender is static, and derived at birth and given by God. He was particularly concerned with the Complainant’s previous activities in having the B.C. Code amended to include gender identity. The Tribunal found these beliefs to be sincere, under the Syndicat Northcrest v. Amselem analysis.

The Respondent was not a member of the riding, but defined himself as a Christian activist. His sole purpose for the campaign was to prevent the Complainant from obtaining public office, because he believed her unsuitable for the role on the basis of her gender identity alone.

The flyer was handed out on street corners, taped to doors, and put in mailboxes. The Respondent estimates that 10,000 people saw the flyer. Although the Complainant was not elected by only 400 votes, she filed her complaint with the British Columbia Human Rights Tribunal. The Respondent denied his flyer violated the B.C. Code, and relied on his s. 2(a) and (b) Charter rights as especially important during an election campaign.Although not plead, the Tribunal also considered his s. 15 rights as being affected.

Before reaching its decision, the case had six previous hearings at the British Columbia Human Rights Tribunal. One of the most important authorities on each of these decisions was the Respondent’s previous decision at the Supreme Court of Canada.

The Tribunal highlighted that the Respondent did not reference this case even once, even though they describe it as the leading authority in this area, with similar circumstances. It appeared as if the Respondent was making the same arguments that were unsuccessful at the Supreme Court in this matter, attempting to get a different result on different facts.

One key difference is that he also challenged the province’s power to enact human rights legislation, which was obviously rejected,

[215] Section 7 of the Code is part of the civil law of this province. It aims to reduce and ultimately eradicate discrimination in all areas of provincial life, including in the political life of the province. It provides a mechanism whereby people whose rights have been violated under that section may seek a remedy. In other words: it confers civil rights. There is no criminal law penalty that this Tribunal could impose against a person found to violate s. 7, and Mr. Whatcott has not persuaded me that its impact on expression and religion renders it ultra vires the province. Section 7 is, in pith and substance, a matter of civil rights and, as such, falls within the
jurisdiction of the province pursuant to s. 92(13) of the Constitution Act, 1867.

A significant focus of the Respondent’s arguments were around the objective reasonable person test under the B.C. Code, and how it did not work well in this case. The Tribunal did not accept this submission, or allow the witnesses and evidence by the Respondent on this point.

The Tribunal concluded that the Respondent’s flyer was a “discriminatory publication” under the B.C. Code, and noted that the specific provisions for publication expressly and exclusively targets speech. Although the Tribunal does not have jurisdiction to apply the Charter or find the B.C. Code unconstitutional, they stated,

[52] Much has been made in this case about the impact of s. 7 on freedom of expression. However, I observe at the outset that speech which adversely impacts a person in connection with a characteristic protected by the Code is prohibited in all the social areas which the Code regulates. Sexual and racial harassment are the most obvious examples of this. Whenever people use words in a way that substantively attacks and undermines a person’s dignity in connection with their work,
housing, or access to public services, because of personal characteristics protected by the Code, they run afoul of human rights law.
[citations omitted]

Instead, the Tribunal applied this provision of the B.C. Code in in a proportionate balancing in light of the Supreme Court of Canada’s decisions in Doré v. Québec (Tribunal des Professions), Loyola High School v. Quebec (Attorney General), and Trinity Western University v. Law Society of BC.

They conceded that the contents of the flyer related to his religious beliefs, and that attempts by the Tribunal to prevent him from distributing his flyer would interfere with his ability to act in accordance with his beliefs in a manner that was more than trivial. After a very lengthy and detailed analysis of the provisions, their purpose, and the Respondent’s freedom of expression and religion, the Tribunal concluded,

[133] I have situated this complaint in its context of pervasive discrimination against transgender people and the barriers they face to participate in political life. I have determined that Mr. Whatcott’s claims to religious and expressive rights cannot be reconciled with the purposes of the Code and the goal of substantive equality, particularly within the realm of politics. I have concluded that the expression in this case is far from the core values of s. 2(b) and that any threat to Mr. Whatcott’s religious rights are minor and consistent with the recognition that a person’s right to hold religious beliefs may be broader than their right to practice them, to the detriment of their neighbours.

The discriminatory effect, or likelihood of creating such effect, was illustrated by the express intent to dissuade people from voting for the Complainant. There was no legitimate public interest in the ideas found in the flyer, as it did not engage in a policy debate on the scope of rights to be conferred by law on transgender people. The singular focus on the Complainant was an attack on her inherent dignity and worthy based solely on her gender identity.

[141] In my view, the Flyer is the modern version of a “whites only” sign. It is an attempt to block the doors of government with a message that the political realm is for “cisgender people only”. Balancing all the factors I have laid out above, I find that the only outcome in this complaint which furthers the purposes of the Code and respects the rights and values in the
Charter is a finding that Mr. Whatcott has violated s. 7(1)(a) of the Code.

The flyer was also likely to expose transgender people to hatred or contempt because a reasonable person aware of the context and the circumstances would conclude that the flyer would expose the Complainant and transgender people to detestation and vilification based on their gender identity.

Central to this conclusion was the extensive context reviewed by the Tribunal of the factual context of the case for trans and gender diverse people, who remain among the most marginalized members of our society. The underrepresentation of transgender people in political life also highlighted the unequal access to the levers of power experienced by transgender people.

They flyer dehumanized transgender people, associated them with social problems and disease, de-legitimized transgendered people and their supporters, invoked religious scriptures to lend credibility to the negative characterizations, and advocated overt discrimination against the Complainant and transgender people.

The significant damages awarded here of $35,000 for injury to dignity, feelings and self‐respect, were justified by the severe nature of the discrimination, intentionally designed to interfere with public participation, and drawing on the most insidious stereotypes and myths of transgender people.

However, it is the additional $20,000 in punitive damages that illustrate the challenges in this case. The Tribunal found the Respondent’s conduct during the hearing improper, which included wearing a t-shirt throughout the hearing that had large photo of the Complainant and a disparaging scriptural quote. The Tribunal panel made the specific effort to advise the Respondent prior to the hearing that this shirt would be improper during the proceedings, but he chose to wear it regardless,

[252] Mr. Whatcott’s response reflected his attitude towards the entire process: “I see this Tribunal as an affront to freedom of speech, freedom of conscience, and is a completely inappropriate process so there is no point in talking to me in private on this matter”. He continued to wear the shirt throughout his testimony and until the conclusion of the hearing.

The Respondent also failed to comply with the Tribunal’s repeated orders to respect the Complainant’s identity throughout the process, and use of the appropriate pronouns. The Panel even suggested that an alternative adjective such as just using the word “Complainant” could be used during the proceedings, but he refused to comply with this alternative as well.

The Respondent’s contempt for the Tribunal was expressed both inside and outside of the hearing, in public media interviews. He used the pejorative term, “kangaroo court,” to describe the proceedings, and considered it a joke. The conduct was improper, and undermined the integrity and solemnity of the serious subject matter in dispute.

Human rights legislation cannot change people’s beliefs, nor should they attempt to do so. At the very minimum though, they should require that participants in its process are afforded dignity and respect. The Respondent’s conduct was found to be in direct and deliberate violation of the Tribunal’s orders, which undermines the public’s confidence in the integrity of the process and the ability to provide services in a discrimination-free environment.

Unfortunately, encouraged by fringe authorities found online, these types of “gender pronoun activists” will continue to appear in the court system. Not only do they dispute the concepts underpinning human rights law, they reject the very ability of the law to regulate this area. They are in many ways the equivalent of the Organized Pseudolegal Commercial Argument Litigant of the human rights world.

My choice encounter with the Respondent in 2013 in Saskatoon (his caption may not be entirely accurate, in the latter).