Women’s equality groups protected by Supreme Court of Canada ruling

Immediate Release
February 1 2007

(VANCOUVER) On February 1, 2007, the Supreme Court of Canada has declined to hear an appeal from the decision of the British Columbia Court of Appeal ruling about Vancouver Rape Relief and Women’s Shelter rejecting a male-to-female transsexual from volunteer training to be a peer counselor of raped and battered women. Vancouver Rape Relief has now been successful at all levels of courts that have addressed this issue, bringing the claim of discrimination to an end. Ms Nixon brought a human rights complaint against the group in 1995. Both the BC Supreme Court and the Court of Appeal decisions found that Vancouver Rape Relief is entitled to form an organization of women who have life experience of being treated as a girl into womanhood.

“We believe it is important for raped and battered women to have the choice of a women-only peer group for support. Now the Supreme Court of Canada has strengthened their right as well a strengthening our right to provide that support,” says Suzanne Jay speaking on behalf of Vancouver Rape Relief. “This decision is important because it can affect many different groups especially those fighting violence and racism.”

The BC Human Rights Tribunal had found that Vancouver Rape Relief acted in good faith, and the fact that their volunteer counselors had to be women born and raised as women was rationally connected to their goals of providing a safe and secure environment for women victims of male violence.

“The BC Court of Appeal relied on those findings, and applied settled law, in reaching its conclusion that Vancouver Rape Relief was entitled to carry on its work”, said Gwendoline Allison, of Bull, Housser & Tupper LLP, co-counsel in the case.

"The decision of the Supreme Court of Canada not to hear an appeal from the British Columbia Court of Appeal decision means the end of a long legal struggle for Vancouver Rape Relief and Women's Shelter", says Christine Boyle, Professor of Law at the University of British Columbia and co-counsel in the case. "Vancouver Rape Relief is entitled to exist, protected by the British Columbia Human Rights Code."

Vancouver Rape Relief and Women’s Shelter is a volunteer run organization that provides shelter and support to over 100 women each year along with 70-80 of the battered women’s children. Each year the 24-hour rape crisis line receives new calls from over 1,000 women dealing with rape, sexual assault, incest, battering and sexual harassment. The group provides all services for free and with confidentiality.

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Two attachments.

For more information:
Suzanne Jay, Vancouver Rape Relief and Women’s Shelter
604-872-8212

Attachment 1:
Chronology of events in
Kimberly Nixon vs Vancouver Rape Relief Society

November 5, 1990
Kimberly Nixon had sexual reassignment surgery. Kimberly Nixon was 33 years old at the time of the surgery. Until that time, Ms Nixon had been brought up through a boyhood and lived as a man achieving success as an airline pilot.

May 1994
Kimberly Nixon completed eight months of weekly one-to-one counseling with a counselor at Battered Women’s Support Services. Following one-to-one counseling, Ms Nixon used the drop-in support group at Battered Women’s Support Services (BWSS) until May or June of 1995.

May or June 1995
Kimberly Nixon was told by BWSS workers that it was necessary for her own healing that she take a year off before applying for the Battered Women’s Support Services training program.

August 29, 1995
Kimberly Nixon arrived at a training group conducted by Vancouver Rape Relief and Women’s Shelter. She was rejected from the training program because she did not share the same life experiences as women born and raised as girls and into womanhood.

August 30, 1995
Kimberly Nixon made a formal Human Rights Complaint.
When Vancouver Rape Relief collective women were informed of the complaint the women were sorry to have offended Kimberly Nixon and quickly tried to make amends. The Rape Relief collective women offered a formal written apology, and suggested that Kimberly could support the rape crisis line and shelter work by joining a fundraising committee. The collective also offered to apologize in-person to Kimberly as well as offering $500 in acknowledgement of Kimberly's hurt feelings. The Rape Relief women also requested mediation. Kimberly Nixon rejected these offers.

September/October, 1995
Kimberly Nixon returned to Battered Women’s Support services for counseling which concluded March 1996.

Fall 1996
Kimberly Nixon commenced the training program for volunteers at Battered Women’s Support Services. She left BWSS over a dispute regarding the role of transgendered women in the organization.

1995-2005
The Vancouver Rape Relief Collective initiated consultations with feminists across the country in the process of deciding what course of action to follow. The collective women searched for information and analysis to inform the decisions they took in defense of their actions.

December 11, 2000 - February 23, 2001
The case was heard by the BC Human Rights Tribunal.

January 18, 2002
The BC Human Right Tribunal released its decision that Vancouver Rape Relief acted on good faith and had been respectful in their treatment of Kimberly Nixon. However, the tribunal ruled that Vancouver Rape Relief had not proved that life experience as a girl and woman was a necessary pre-requisite to be a peer counselor to raped and battered women and ordered the payment of $7,500 to Kimberly Nixon for hurt feelings.

August 2003
The BC Supreme Court conducted a judicial review of the BC Human Rights Tribunal decision.

December 19, 2003
The Supreme Court set aside the decision of the Human Rights Tribunal, finding that the Tribunal had made an error: Vancouver Rape Relief had not discriminated against Kimberly Nixon and the group does have the right to freedom of association to organize as women only.
The court further declined to send the matter back to the Tribunal for a rehearing.

April, 2005
Nixon appealed to the B.C. Court of Appeal.

December 7, 2005
The B.C. Court of Appeal held unanimously that Vancouver Rape Relief has the right to prefer to train women who have never been treated as anything but female.
The Chief Justice said: "The respondent Society was entitled to give preference to women who are not post-operative transsexuals, because there is a rational connection between the preference and the respondent's work or purpose."
 
February 1, 2007
The Supreme Court of Canada dismissed Kimberly Nixon’s request to appeal the B.C. Court of Appeal’s decision. The Supreme Court further awarded Vancouver Rape Relief with “costs”.

Attachment 2:
Summary of Decision
Vancouver Rape Relief Society v. Nixon 2005 BCCA 601

In August 1995, Rape Relief excluded Kimberly Nixon, a post-operative male-to-female transsexual, from its training programme for volunteer peer counselors because Kimberly Nixon had not been born and raised as a girl and woman, and she had experienced what it is like to have lived in the world as a man. Ms. Nixon initiated a complaint under the Human Rights Code alleging that Rape relief had discriminated against her in violation of the Human Rights Code.

In Vancouver Rape Relief Society v. Nixon 2005 BCCA 601, the Court of Appeal confirmed that Vancouver Rape Relief Society did not contravene the Human Rights Code when it excluded Kimberly Nixon. In so doing, the Court of Appeal held that Rape Relief is a group that is protected by section 41 of the Human Rights Code. The Court of Appeal held that a group that is protected by section 41 can prefer a sub-group of those whose interests it was created to serve, provided that the group acts in good faith and provided there is a rational connection between the preference and the group's work, or purpose.

The Human Rights Tribunal had previously ruled that Rape Relief’s decision to allow into the training programme only women who had been born and raised as girls and women was rationally connected to Rape Relief’s work of counseling women victims of sexual assault and fighting male violence and women’s inequality. The Tribunal also held that that Rape Relief’s decision was made in good faith. The Court of Appeal upheld those findings of the Tribunal.

Having found that Rape Relief’s decision was rationally connected to its goals and was made in good faith, the Court of Appeal held that Rape Relief’s decision did not contravene the Human Rights Code.

Provided by: Gwendoline Allison, Bull, Housser & Tupper LLP and Professor Christine Boyle, University of British Columbia School of Law.