SILVER LINING: barbara findlay (left) is disappointed Canada's Supreme Court refused to hear Kimberly Nixon's case, but says the battle was worthwhile.
(TJ Ngan photo)
After almost 12 years of legal battles and a string of court decisions, Kimberly Nixon's case against Vancouver Rape Relief ground to a halt Feb 1 when the Supreme Court of Canada refused to hear her appeal.
Nixon, a post-operative male-to-female transsexual, first filed a human rights complaint against Rape Relief in 1995 for excluding her on the basis of her transsexuality.
Rape Relief never disputed the claim, but maintained it wasn't discriminatory since non-profit women's centres have a right to set their own membership criteria.
Though the BC Human Rights Tribunal sided with Nixon, two higher courts agreed with Rape Relief and overturned the decision. Nixon asked the Supreme Court of Canada to review the latest ruling but the court refused.
The Supreme Court only agrees to hear about 11 percent of the appeal applications it receives, says Nixon's lawyer, barbara findlay. She says she has "no idea" why it refused to hear this one, since the court doesn't make its criteria public. But it's not because her filings were late, she notes, because the court granted her an extension due to illness.
News of the court's refusal came as a shock to Nixon.
"None of us ever expected it would come to such a grinding halt that way," she told Xtra West Feb 6. "The abrupt end, to me, seemed to minimize the whole experience, and the experiences of transgendered people in general, in terms of discrimination and prejudice and transphobia. It all seemed to be totally dismissed along with the appeal."
Trans activist Tami Starlight agrees. For her, the entire court saga has led to the "further marginalization and disempowerment of an already marginalized and disempowered community." The latest decision means Rape Relief and other women's organizations can continue to discriminate legally, she points out.
The Supreme Court's refusal to hear the case means the BC Court of Appeal's 2005 ruling, upholding Rape Relief's right to choose its own members and decide who counts as a woman for its own purposes, will stand.
It's not clear how sweeping a precedent that ruling will set for trans rights, says findlay. It shouldn't legalize the exclusion of transsexual people from public spaces, such as washrooms and places of employment.
"This is a very narrow judgment in fact," findlay says. It applies strictly to non-profit women's organizations that want to exclude trans women from participating in their programs or receiving their services.
That may be so, says Starlight, but she's still worried about "the trickle-down effect. There may be people or organizations in our society who feel it's a bit of a green light to discriminate."
Rape Relief maintains the case was never about discrimination, or even about defining who counts as a woman for any purposes but its own, says spokesperson Suzanne Jay. "For us, the struggle was about allowing a women's group to organize as we saw fit."
As an organization dedicated to helping raped and battered women, Rape Relief has argued since the beginning that it needs counsellors with shared life experiences who have been oppressed by men since the day they were born female. Transsexual women just don't share that life experience, Jay says.
She welcomes the Supreme Court of Canada's refusal to re-open the case.
"The women of Vancouver Rape Relief are very happy about the decision," Jay says. "It will take us awhile to get used to it," she adds, "because it's been 11 and a half years. We've endured almost 12 years of attack on Rape Relief's reputation and resources."
The case cost Rape Relief more than $100,000, she notes.
In dismissing the appeal, the Supreme Court also awarded costs to Rape Relief, which means the organization can now pursue Nixon for reimbursement. Asked whether it plans to do so, Jay says it's too soon to say.
"That's a pretty serious decision, and the decision from the court only came a couple of days ago, so it's pretty early to be saying what Rape Relief will be pursuing," she says.
"I do think it's really important to remember that Rape Relief never wanted this to go through any kind of court process," she continues. "We offered $500 for hurt feelings to Kimberly Nixon. We tried to apologize in person and in writing and we also asked for mediation, and we really tried to settle this in a way that would indicate that we were sorry for hurting her feelings."
Findlay says she's sure a feminist organization such as Rape Relief "wouldn't take advantage of a woman that has no money."
Regardless of the costs outcome, both findlay and Nixon say the battle has been worth it.
"It was absolutely worth it because of the impact this case [has had] on feminism and women's groups in Canada," says findlay. "We have been able to serve as a catalyst for the women's movement. Almost all of the women's centres in Canada are now trans-inclusive. So Kimberly has changed the world for trans women.
"I think Kimberly is a hero," findlay continues, "for having pursued this case with dignity and single-minded determination-though she had to endure the glare of media attention and the derision of women's groups in doing so."
"The whole reason I persevered and endured what I did was knowing I had a voice and an opportunity many don't," says Nixon. She says she's grateful to all the women's centres, particularly those in the Downtown Eastside, that have voluntarily changed their policies to include trans women in the last 12 years.
"My hope is that, in spite of the Supreme Court of Canada ruling, they would continue to do that," she says. "That would make it all worthwhile."
Asked if Rape Relief will change its policies to welcome trans women, Jay pauses.
"When Kimberly first came to the [counsellor] training group, we had no policy. We had a women-only policy and that's what we continue to have," she replies.
Asked if Rape Relief will change its definition of women to include trans women, Jay says: "We didn't set out to define woman. We set out to protect our right to organize based on the criteria that we established, which was life experience."
Has the life experience required to volunteer at Rape Relief changed? "No, I don't think it has," Jay says.
"I don't think I can speak to that right now," she continues. "It's kind of a step back from the case. I don't think we've had enough time to do that yet."
Starlight is unimpressed with Rape Relief's ongoing refusal to include trans women. "In my opinion they don't have a moral leg to stand on," she says. "I think they give feminism a bad name."
"Rape Relief has isolated themselves and backed themselves into a corner," says Nixon. They're not the only group discriminating against trans women in this society, she notes, but the difference is they should know better.
Jay agrees that many other women's centres across Canada have become trans-inclusive, but she disputes the claim that almost all have.
"I am aware that there are a lot of organizations that try to avert similar complaints against them," she says, adding that many also have a "natural sympathy" for Nixon.
"Rape Relief women had that same sympathy," she continues. "But we were acting on our principles and we had to defend them."