Oh Canada!

Recently, a friend forwarded me a link to this blog post by Katrina Rose, who teaches history at the University of Iowa.  Ms. Rose appears to believe that my colleague and I owe her answers to questions she poses on her blog, despite the fact that answers to her questions readily appear on our own blog and elsewhere.

However, she raises an interesting real-life set of facts that illustrate the concerns raised in our submission to the United Nations and the
objective definition of “gender identity” we believe responsible GLBT Organizations should advocate.

Ms. Rose asks:

“Should this person have been allowed to volunteer as a rape crisis counselor at rape relief center that only allows women to be rape crisis counselors? Should this person be allowed to use women’s restrooms?”

First, who is this person? Kimberly Nixon is a post-operative transsexual woman who unsuccessfully pursued a case against Vancouver Rape Relief, an organization that provides direct service to females traumatized by sexual violence, over the organization’s unwillingness to allow Nixon to volunteer as a rape counselor.

So, should VRR have allowed Ms. Nixon to volunteer as a rape counselor?

First, we believe it is important to note that Nixon v.VRR is a Canadian decision applying Canadian law. We do not claim to know Canadian law, nor are we admitted to practice law in Canada (and, to our knowledge, neither is Katrina Rose).  Other countries have different legal traditions than those in the United States, and any analysis that fails to account for these varying legal traditions strikes us as chauvinistic, at best.
That said, for the sake of argument, let’s assume that Ms. Nixon sought employment (not a volunteer position) at a similar type of organization in a hypothetical state that adopted the definition we advocate in our UN Submission.  That definition provides as follows:


“Gender identity” means a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, or related condition, as
deemed medically necessary by the American Medical Association.

Nixon, as a post-operative transsexual, easily satisfies the requirements to assert “gender identity” asa basis for protection from discrimination in employment – in other words, she is one of *the persons* our definition seeks to protect.  She has demonstrated that she falls within the
specific class of people we believe “gender identity” laws should protect, and she clearly falls within the objective definition we advocate – a definition designed to balance the rational need for sex-based protections for females with the need of transgender people to operate in a world free from irrational discrimination.  A jurisdiction using our proposed definition of “gender identity” to ban discrimination in employment would protect Nixon.  If that’s the question Ms. Rose meant to ask, I would expect her to be happy with that conclusion.

Now, recall that Ms. Nixon did not seek employment in her case. Rather, she sought to volunteer as a rape counselor. The court explained:

“This is quite a different case from, say, Ms. Nixon being excluded from a restaurant because of her transsexual characteristics. Unlike a for-profit business providing services or recruiting employees from the general public or a volunteer organization open to all, Rape Relief defined itself as a women only organization with the express approval of the state …”

Further, the court notes that:

“Rape Relief’s exclusion of Ms. Nixon from its club-like sisterhood cannot be equated with legislated exclusion from entitlement to public benefits … in terms of its objective impact on human dignity.”

Looking at Canadian law as described in the Nixon case, Canadian law makes a clear and important distinction between for-profit business
ventures or access to public benefits, and an organization whose primary purpose is the “…promotion of the interests and welfare of an identifiable group or class of persons…”  So, under Canadian law, it appears that not only is the definition of the person’s
membership in the class at issue, but different contexts justify different considerations in regard to individual entitlement.  I suspect that this isn’t a result Ms. Rose and other advocates of eviscerating sex-based protections for females would support, but that’s Canada for you!  Take it up
with the Canadians.

Next, Ms. Rose asks whether Ms. Nixon should “be allowed to use women’s restrooms?”

Again, under the definition we advocate in our UN Submission, a public restroom in a jurisdiction that banned discrimination in public accommodations (including sex-segregated facilities) based on “gender identity” as we define it could not lawfully exclude Ms. Nixon from the women’s restroom.  Because she has sought medical intervention to guide her transition from male to female, she can assert
“gender identity” as a basis for access to sex-segregated public accommodations like women’s restrooms should she encounter discrimination when she seeks such access.

We encourage reasonable debate on these issues, and we encourage reasonable persons to read the FAQs on this blog, and to submit a question for our FAQs if you have a question that hasn’t been asked and answered.

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