Legal Firm, Bull, Housser & Tupper celebrates the anti-violence work of Vancouver Rape Relief and Women's Shelter Gwendoline Allison, Bull, Housser & Tupper, September 9, 2005 Ten years and eleven days ago, an event occurred that should have been unremarkable. The outcome should have been obvious. Danielle Cormier (supported by Karen Sawatzky and Tracy McIntosh) privately and with respect asked Kimberly Nixon to leave the training programme for volunteer peer counsellors because Kimberly Nixon had not been born and raised as a girl and a woman, and had experienced what it was like to have lived in the world as a man. That experience made Kimberly Nixon ineligible to train as a peer counsellor for women in Rape Relief’s organization. Danielle took care to explain to Kimberly Nixon the nature of VRR and invited Kimberly to support Rape Relief in another capacity. Ten years and ten days ago, Kimberly Nixon filed a human rights complaint against Rape Relief, and it is as a result of that event that we are gathered here tonight. Our purpose in gathering tonight is to take stock, re-connect and galvanize; and as the relative newcomer to the team, I would invite you to join me in honouring the commitment of the women of Rape Relief, particularly Lee Lakeman, Alice Lee and Suzanne Jay, and also Christine Boyle of UBC who has been the constant legal counsel and keeper of the legal knowledge. They have been steadfast and united in their resolve and determination to see this case through: to defend the right of women. In the corporate law world, I often here comments that people think the case is silly, an unnecessary distraction from the “real work” of Rape Relief: fighting for women’s equality. Those assessments are correct, but unfortunately the case is also so much more. The event of August 29, 1995, which should have been unremarkable, and whose result should have been obvious, has led to challenge to the very right of Rape Relief to exist and a challenge to our understanding of what is a woman. Christine Boyle spoke eloquently of those dangers at our last celebration. Other groups in BC have faced similar challenges. Some, like WAVAW changed their constituency. Others, such as Vancouver Lesbian Connection disbanded under the pressure. VRR made the courageous decision to defend their organization, and all girls and women should be grateful that they have. The defence of this case is vital – it has had consequences for VRR and also for other equality-seeking (more of which later). We have also been fortunate to enjoy the support of many of the other women, on the legal front Gwen Brodsky, Shelagh Day, Prof. Margot Young and the now Madam Justice Victoria Gray; of numerous articling students including Sarah Firestone and young Ryan Dalziel. The legal proceedings have been long and arduous. There has been much vitriol expressed towards Rape Relief, not only by Kimberly Nixon and her lawyer, but by others, and there have been more than a few who have sought to intervene against Rape Relief. Rape Relief has, despite such attacks, maintained not only its own dignity and but also sought to preserve Kimberly Nixon’s dignity.
Rape Relief sought to avoid legal proceedings and sought a reasonable, negotiated solution. Without success. Kimberly Nixon was determined to have her day in court, regardless of the expense to Rape Relief; regardless of the cost to the women who seek the services of Rape Relief. And what days in court there have been: * A five day judicial review before the BCSC, where Christine, Gwen and Rape Relief faced opposition not only from Kimberly Nixon, but also the BCHRC and the BCHRT. * The 21 days of hearing before the Tribunal, where Christine, Victoria and Rape Relief faced opposition from KN and the DCC; where the DCC was forced to apologize for insulting VRR by using racist innuendo; but where many witnesses came forward and testified about their involvement with Rape Relief, including Brian Cross and Tracy McIntosh, who are here tonight. Although the evidence of all those who testified for VRR was vital and moving, the testimony of Edith Swain stands out as particularly powerful especially in light of the dignity she showed when subjected to a shabby parlour trick. * The five day judicial review hearing before Mr. Justice Edwards, where we faced KN and the Tribunal, and where we succeeded * Finally, the three day hearing before the Court of Appeal, where the decision rests with the Court, where KN was joined by Egale, and would have been joined by more but we successfully fended of attempts by the Tribunal, TAS and the so-called BC Human Rights Defenders who all wanted time before the courts to oppose VRR. Once again, an opponent (one of Ms. Nixon’s lawyers) had to apologize for making a personalized, inflammatory and untrue comment about VRR. Where are we now? The decision may take several months. From there, the losing party make seek leave of the Supreme Court of Canada. We can be sure that if leave is granted, we will see applications by Egale, TAS, BC HRD, and others, to intervene against Rape Relief. It is crucial to keep going, and to preserve our energy and re-invigorate ourselves for what is to come. There is a “worst case scenario”. There is also a small risk that the Court of Appeal will start the process over again by sending the matter back to the Tribunal. This outcome would be devastating to all concerned. Kimberly Nixon remains a threat to women’s organizations. The danger inherent was highlighted by her lawyer barbara findlay, Q.C. in an article published in the UBC Law Review, where she put forward the principle that all persons must be assessed individually in relation to the service or employment being offered. The case affirms that these principles apply even to equality-seeking groups who have rights under British Columbia’s Human Rights Code to limit their membership, in this case to women. Ms. findlay makes no distinction as to what “individuals” must be assessed. Once that door is open, there is no closing it. Men could successfully argue that their
qualifications (such as empathy, counselling training, participation in counselling, experience of being assaulted) should be considered in their applications to join women’s groups. Ms. findlay has recently written an article for the Lawyer’s Weekly, in which she sounds the clarion call for the next stage of her battle: challenges by transgendered persons who identify as neither or both male and female. Her battle is with the gendered order. While Ms. findlay suggests that her challenge will be directed towards government collecting information on a gendered basis or using gender as a means of identification, I can’t help but wonder who will really bear the brunt of the challenge, and women will officially disappear. One thing we must keep in mind, however, is that since December 2003, our decision from the BCSC has remained and still remains the law. Our case has been cited in some 42 decisions of the Tribunal and BCSC. Our case is important, not only for women’s groups but for all equality-seeking groups and programs. So what has happened? A man, a Mr. Johnson, has in fact challenged the “no-men” hiring policy of a women’s shelter. At the Human Rights Tribunal level, he won. The women’s group failed to show, by objective, reliable, social scientific evidence, that it was reasonably necessary to have a no-men policy for a transition house. As was the case in our case, the evidence of front-line workers does not apparently meet the test. On review, the women’s group were successful, relying on our case. The judge found that our case decided the point in favour of the women’s group. The matter did not end there – it was remitted back to the Tribunal for reconsideration, but a reconsideration that accepted the authority of our case. Fortunately, Mr. Johnson did not pursue the matter further and so, the Tribunal closed the file. Our case made a difference. In turn, that case was used by the United Native Nations Society to defend itself. A non-aboriginal man applied for a position as ED of the organization. UNNS defended its decision not to hire him on the basis that it is a NPS whose objects, broadly speaking, are the advancement of the interest of aboriginal people. The decision is actually an interesting read: although not specifically mentioned, our case is obviously the blueprint, both for how the evidence was led in the case by the UNNS, and for the decision itself. It is clear to me anyway that the Society learned from VRR how to defend itself. The decision of the Tribunal reaffirmed the rights of groups to form and grant preferences to members of that group. Although the decision did not refer directly to our case, it is clear that our decision influenced the outcome. So far, therefore, the struggle has been positive. I would say that our case has become a positive tool for equality-seeking groups. It remains under threat, so we must continue to defend it. So, tonight, let’s take stock, Rape Relief has not crumbled like VLC and its has not compromised its very nature: it is still here. Your success thus far has enabled two
other equality-seeking organizations to defend themselves from attacks to their group integrity. That is worth celebrating. The tenacity, integrity and unity of Lee, Alice, Suzanne and Christine has led to this success. I ask you to join me in a toast to the real “Fantastic Four”.
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