BRITISH COLUMBIA
COMPLAINTS
Indexed as: Sheridan v. Sanctuary Investments Ltd. (No. 2)
Cited: (1998), 33 C.H.R.R. D/464 (B.C.H.R.T.) 

Paragraphs 1 – 12
Tawni Sheridan
Complainant
v.
Sanctuary Investments Ltd. doing business as B.J.’s Lounge
Respondent
and
Deputy Chief Commissioner of the British Columbia Human Rights
Commission
Party
and
Attorney General of British Columbia
Party
Date of Decision:
April 28, 1998
Before:
British Columbia Tribunal, Tom W. Patch
Appearances by:
Alison Sawyer, Counsel for the Complainant
Stephen Andrew, Counsel for the Respondent
Deirdre Rice, Counsel for the Deputy Chief Commission
Lisa Mrozinski, Counsel for the Attorney General

COMPLAINTS – amendment to include additional allegation – BOARDS
OF INQUIRY/TRIBUNALS – authority to order amendment of complaint
and to rule on constitutional validity of human rights
legislation – HUMAN RIGHTS – gender identity as analogous ground
of discrimination – DISCRIMINATION – protection based on
non-enumerated grounds of discrimination – JURISDICTION –
jurisdiction to hear complaint concerning non-enumerated ground
of discrimination

Summary: This is a decision by the B.C. Human Rights Tribunal on
a preliminary motion made by Tawni Sheridan. Tawni Sheridan
alleges that she was discriminated against contrary to the B.C.
Human Rights Code because, as a pre-operative male to female
transsexual, Sheridan was refused use of the women’s washroom at
B.J.’s Lounge. Tawni Sheridan alleged that the discrimination was
based on the grounds of sex and disability. The motion is to add
a new ground to the complaint, namely, an allegation that
Sheridan was discriminated against because of “gender identity.”

The Tribunal finds that it has no jurisdiction to amend a
complaint by adding a ground of discrimination that is not
included in the B.C. Human Rights Code. The Tribunal finds that
it can amend a complaint by adding a ground of discrimination.
However, the Tribunal can only hear and decide complaints that
the Commission has jurisdiction to refer to it, and the
Commission could not have referred to the Tribunal a complaint
based on “gender identity” when that ground is not included in
the Code.

The application to amend the complaint is denied.

CASES CITED

Cooper v. Canada (Human Rights Comm.), [1996] 3 S.C.R. 854, 27
C.H.R.R. D/173: 6

Emcon Services Inc. v. British Columbia (Council of Human Rights)
(1991), 20 C.H.R.R. D/193 (B.C.S.C.): 4

Fowler v. Flicka Gymnastics Club (1998), 31 C.H.R.R. D/397
(B.C.Trib.): 4

Musty v. Meridian Magnesium Products Ltd. (No. 1) (1998), 31
C.H.R.R. D/97 (Ont. Bd.Inq.): 9

Vriend v. Alberta, [1998] 1 S.C.R. 493, 31 C.H.R.R. D/1: 7

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11: 5

Canadian Human Rights Act, R.S.C. 1985, c. H-6: 8

British Columbia

Human Rights Code, R.S.B.C. 1996, c. 210

§8: 1

§34: 1

§50(2): 8

[1] The complaint of Tawni Sheridan against Sanctuary Investments
Ltd. was referred to the British Columbia Human Rights Tribunal
(the “Tribunal”) for a hearing pursuant to §34 of the Human
Rights Code, R.S.B.C. 1996, c. 210. The complainant alleged that
she was discriminated against because of her sex (gender) and/or
physical or mental disability, contrary to §3 of the Human Rights
Act of British Columbia (now §8 of the Code). On March 18, 1998,
the complainant applied to the Tribunal to amend her complaint to
allege discrimination because of Ms. Sheridan’s “gender
identity.” On March 27, 1998, I requested submissions from the
parties to the complaint on the question of whether the Tribunal
had authority to grant the amendment. I received submissions from
the Deputy Chief Commissioner of the B.C. Human Rights Commission
(the “Commission”) and from the Attorney General of British
Columbia. I did not receive any submissions on this issue from
either the complainant or the respondent. On April 24, 1998, I
informed the parties that I had decided that the Tribunal does
not have jurisdiction to amend a complaint by adding a ground
that is not included in the Code, and that, accordingly, the
complainant’s application was denied. I informed the parties that
my reasons for the decision would follow. These are my reasons.

[2] The Deputy Chief Commissioner submits that, in appropriate
circumstances, the Tribunal may have authority to grant an
amendment to a complaint that will add a ground of discrimination
not included in the Code. The Deputy Chief Commissioner further
submits that the merits of the complaint and the motion to amend
are matters that can be decided only after the complainant has
had an opportunity to present a full evidentiary record. Further,
these matters are so interrelated that they cannot be considered
in isolation. The Deputy Chief Commissioner submits that the
interests of efficiency and fairness favour the Tribunal
according the complainant a full and fair opportunity to make her
case and against summarily dismissing her motion to amend the
complaint

[3] The Attorney General of British Columbia submits that the
Tribunal has no jurisdiction to grant the requested amendment
because: (a) the Tribunal does not have authority to amend
complaints; (b) the complaint is one that could not be referred
to the Tribunal by the Commission; and (c) the Tribunal [h]as no
jurisdiction to read a provision into the Code.

[4] In Fowler v. Flicka Gymnastics Club (January 16, 1998),
unreported [now reported 31 C.H.R.R. D/397], the Tribunal
concluded (at p. 4 [D/399]) that it has the power to amend a
complaint in appropriate circumstances. The Tribunal relied on,
among others, Emcon Services Inc. v. British Columbia (Council of
Human Rights) (1991), 20 C.H.R.R. D/193. In Emcon, the B.C.
Supreme Court upheld a decision by a Member Designate to amend a
complaint by adding a ground after the hearing had commenced. The
Attorney General has not persuaded me that I should depart from
the reasoning in Fowler. It follows that I conclude that, in
appropriate circumstances, the Tribunal may amend a complaint by
adding a ground.

[5] Neither Fowler nor Emcon dealt with a request to add a ground
that is not included in the legislation. There is no dispute that
the Code does not include “gender identity” as a proscribed
ground of discrimination. Though the complainant has made no
submissions concerning this application, I understand her
position to be that the ground of “gender identity” should be
read into the Code to bring it into compliance with the Charter
of Rights and Freedoms.

[6] In Cooper v. Canada (Human Rights Comm.), [1996] 3 S.C.R. 854
at 895–98 [27 C.H.R.R. D/173 at D/194–D/196] the Supreme Court of
Canada concluded that the Canadian Human Rights Tribunal does not
have the power to declare unconstitutional a limiting provision
of the Canadian Human Rights Act. The Court added at p. 896
[D/195, para. 63]:

... The same is true of any complaint that requires the [Human
Rights] Commission to arrive at a decision on a constitutional
matter before being able to find that the complaint warrants
further inquiry by a tribunal. It would be something of a paradox
for Parliament to grant tribunals under the Act a jurisdiction
that could never be exercised.

As I understand this reasoning, a tribunal is only authorized to
hear complaints that are referred to it by the Commission. If the
Commission lacks jurisdiction to refer a complaint to a tribunal,
it follows that the tribunal does not have jurisdiction to hear
it.

[7] In Cooper, the Court held (at p. 898 [D/196, para. 67]) that
the Canadian Human Rights Commission has no jurisdiction to
subject the Canadian Human Rights Act to constitutional scrutiny.
In Vriend v. Alberta, [1998] S.C.J. No. 29 [now reported [1998] 1
S.C.R. 493, 31 C.H.R.R. D/1], the Court considered whether the
failure to include “sexual orientation” in the Individual[‘s]
Rights Protection Act as a prohibited ground of discrimination
constituted a contravention of the Charter. Cory J., writing for
the majority, noted at para. 97 [p. D/35] that:

The first and most obvious effect of the exclusion of sexual
orientation is that lesbians or gay men who experience
discrimination on the basis of their sexual orientation are
denied recourse to the mechanisms set up by the IRPA to make a
formal complaint of discrimination and seek a legal remedy. Thus,
the Alberta Human Rights Commission could not hear Vriend’s
complaint and cannot consider a complaint or take any action on
behalf of any person who has suffered discrimination on the
ground of sexual orientation ... Persons who are discriminated
against on the ground of sexual orientation, unlike others
protected by the Act, are left without effective legal recourse
for the discrimination they have suffered.

Neither Cooper nor Vriend directly answers the question before
me. When read together, however, they provide a clear indication
that a human rights commission which performs a[n] investigative
and screening function does not have the jurisdiction to deal
with a complaint on a ground that is not included in the
commission’s enabling legislation.

[8] This complaint was initially made to the B.C. Council of
Human Rights. The Deputy Chief Commissioner submits that Cooper
is not binding because, among other things, the legislative
scheme under which the Council of Human Rights operated was
markedly different from the legislative structure considered by
the Supreme Court of Canada in Cooper. This complaint was
referred to the Tribunal in May 1997. Section 50(2) of the Code
states as follows:

50(2) If, before January 1, 1997, a complaint had been made under
section 11 of the former Act, and no action concerning the
complaint had been taken under section 14 of the former Act, the
complaint is deemed to have been made under section 21 of the
present Act.

In my opinion, the transition provisions render the legislative
scheme under which this complaint was first filed irrelevant. The
complaint is deemed to have been made under the Code. There are
differences between the legislative scheme of the Code and that
of the Canadian Human Rights Act [R.S.C. 1985, c. H-6], including
the nature of Tribunal Members’ appointments. However, I do not
find them to be sufficiently different to render Cooper
inapplicable.

[9] The Deputy Chief Commissioner further submits that, if Cooper
binds the Tribunal, that decision does not compel a summary
dismissal of the application to amend. The submission is based on
the uncertainty in the law with respect to the Tribunal’s ability
to consider constitutional questions and the requirement that the
Tribunal assume that the referral by the Commission conferred
jurisdiction on the Tribunal to hear the complaint. I do not
question the jurisdiction of the Tribunal to hear the complaint
that was referred to it. The issue is whether the Tribunal has
jurisdiction to hear a complaint that was not and could not be
referred to it. Though there is uncertainty in the law, my
reading of it (and the reading given to it in Musty v. Meridian
Magnesium Products Ltd. (February 13, 1998), unreported [now
reported 31 C.H.R.R. D/97], at [D/104] para. 40 (Ont. Bd.Inq.))
is as I have stated in paras. 6 and 7 above.

[10] I conclude that the Commission does not have jurisdiction to
deal with a complaint based on the ground of “gender identity,”
nor can it refer such a complaint to the Tribunal. It follows,
based on the reasoning in Cooper, that the Tribunal does not have
the jurisdiction to amend a complaint by adding an allegation of
discrimination contrary to the Code on the ground of “gender
identity.”

[11] The complainant alleged in her initial complaint that,
because of her gender identity, the respondent discriminated
against her on the basis of sex (gender) and disability. I have
not considered whether gender identity is included in the grounds
of either sex or disability. I did not ask for or receive
submissions on that issue. The legal interpretation of the scope
of these provisions is most appropriately dealt with at the
hearing of the complaint. Nothing in this decision should be
interpreted as having any bearing on the merits of the complaint
or on whether, as a matter of statutory interpretation, gender
identity is included in the grounds of either sex or disability.

[12] Having concluded that the Tribunal does not have
jurisdiction to amend a complaint by adding a ground that is not
included in the Code, it follows that the application to amend
the complaint by alleging discrimination contrary to the Code on
the ground of gender identity is denied.

^^

BRITISH COLUMBIA
SEX DISCRIMINATION
Indexed as: Mamela v. Vancouver Lesbian Connection
Cited: (1999), 36 C.H.R.R. D/318 (B.C.H.R.T.) 

Paragraphs 1 – 109
Susan Mamela
Complainant
v.
Vancouver Lesbian Connection
Respondent
and
Deputy Chief Commissioner, British Columbia Human Rights
Commission
Party
Date of Decision:
September 8, 1999
Before:
British Columbia Human Rights Tribunal, Nitya Iyer
Appearances by:
Clea Parfitt, Counsel for the Complainant
Deirdre Rice, Counsel for the Deputy Chief Commissioner

SEX DISCRIMINATION – sex discrimination includes transsexualism –
volunteer position denied – membership in society denied – PUBLIC
SERVICES AND FACILITIES – definition of public service and
facility – non-profit society membership denied – EMPLOYMENT –
definition of employee includes volunteer – INTERPRETATION OF
STATUTES – definition of “employment” and “public” – EVIDENCE –
expert evidence

Summary: The B.C. Human Rights Tribunal rules that the Vancouver
Lesbian Connection (“VLC”) discriminated against Susan Mamela,
also known as Eric Friday, on the ground of sex when it suspended
Mamela’s membership and prohibited Mamela from attending the
VLC’s Centre and Centre events.

Susan Mamela is a transgendered person who self-identifies as a
“radical lesbian feminist,” but not a woman. As Eric Friday,
Mamela began attending the Gender Clinic at the University of
British Columbia in 1995, legally changed his name from Eric
Friday to Susan Amy Mamela in 1997, and at approximately the same
time began hormone therapy and made a formal request for sex
reassignment surgery. The protocol for the Gender Clinic requires
that candidates for sex reassignment surgery live as a member of
the desired gender as completely as possible for two years.
Mamela considered that acceptance in the lesbian community was
important to the development of a new identity and to obtaining
sex reassignment surgery.

Mamela became a member of the VLC and began attending at the
Centre in 1996. Every day that it was open, Mamela was at the
Centre from opening to closing times, and performed some
volunteer work, shelving books and helping to set up for
fundraising events.

After some months, Mamela claimed in local newspaper articles to
be the “librarian” for the VLC, though the VLC stated in
correspondence that it had never had a librarian, paid or
volunteer.

In September 1996 the VLC suspended Mamela’s membership and
prohibited Mamela from attending the Centre because Mamela was
disruptive and interfered with staff and volunteers by (1)
arriving before the Centre opened and refusing to leave when it
closed on a daily basis, (2) constantly interrupting staff and
volunteers while they were dealing with other users of the Centre
(3), answering the crisis line without training or permission,
(4) using the computer without permission, (5) using the VLC as a
personal mailing address and (6) repeatedly “coming on” to staff
and volunteers despite their lack of interest.

By the time this complaint was heard, the VLC was no longer in
operation and VLC made no appearance before the Tribunal to
present evidence or defence.

Mamela claimed that the suspension of membership and prohibition
from attending the Centre constituted discrimination on the basis
of sex both with respect to employment and services. The Tribunal
found, however, that the casual and occasional volunteer work
performed by Mamela at the Centre did not qualify as employment
within the terms of §13 of the Human Rights Code. While in some
circumstances volunteer work has been accepted by human rights
adjudicators as falling within the ambit of “employment,” not all
volunteer work does so. Where volunteer work has been accepted as
employment, the volunteer work has been governed by well-defined
rules, and has involved well-specified duties.

The VLC was a non-profit group that had as its primary purpose to
promote community awareness of women’s and lesbian issues. By
virtue of §41 of the Code, it was permitted to restrict its
membership to lesbians.

However, the Tribunal finds that the Centre was not in a private
relationship to its members, but rather provided a public
service. The Centre and its events were open to members and
non-members. Thus, it appeared that all of the services provided
by the Centre were provided to the whole community and that
membership was simply an adjunct to the community-related
services.

The Tribunal finds that discrimination against a transsexual
person can be a form of sex discrimination. Following the
decision in Sheridan v. Sanctuary Investments Ltd. (No. 3), the
Tribunal ruled that “whether the discrimination is regarded as
differential treatment because the transsexual falls outside the
traditional man/woman dichotomy... or because male-to-female
transsexuals are regarded as a sub-group of females... the result
is the same: transsexuals experience discrimination because of
the lack of congruence between the criteria which determine sex.”

In this case, the Tribunal determines that the suspension
discriminated against Mamela because one of the factors was
Mamela’s “sex.” This finding was supported by the fact that VLC
addressed a letter forwarding a GST cheque to Mamela using the
name of Eric Friday. The Tribunal considers this discriminatory,
although the cheque itself was addressed to Eric Friday. Further,
the Tribunal finds that two members of VLC confronted Mamela in
March to express their disagreement with Mamela’s views regarding
the term “woman” and one of them called Mamela “aggressive and
mannish.”

The Tribunal awards Mamela $3,000 as compensation for injury to
dignity.

CASES CITED

Brown v. Robinson (1989), 10 C.H.R.R. D/6286 (B.C.C.H.R.): 73

Brown v. Waterloo Regional Board of Commissioners of Police
(1986), 13 C.C.E.L. 45 (Ont. Bd.Inq.): 72

Canada (Treasury Board) v. Robichaud, [1987] 2 S.C.R. 84, 8
C.H.R.R. D/4326: 61

Canadian Pacific Ltd. v. Canada (Human Rights Comm.) and Fontaine
(1990), 16 C.H.R.R. D/470 (F.C.A.): 72

Cormier v. Alberta (Human Rights Comm.) (1984), 5 C.H.R.R. D/2441
(Alta. Q.B.): 71

Kippen v. Big Brothers Assn. of Winnipeg Inc. (1993), 20 C.H.R.R.
D/483 (Man. Bd.Adj.): 73

Pannu v. Prestige Cab Ltd. (1986), 8 C.H.R.R. D/3911 (Alta.
C.A.): 72

Québec (Comm. des droits de la personne et des droits de la
jeunesse) v. Maison des jeunes À-Ma-Baie Inc. (No 2) (1998), 33
C.H.R.R. D/263 (Trib.Qué.): 101

Sheridan v. Sanctuary Investments Ltd. (No. 3) (1999), 33
C.H.R.R. D/467 (B.C.Trib.): 92

Skelly v. Assist Realty Ltd. (No. 1) (1991), 16 C.H.R.R. D/1
(B.C.C.H.R.): 72

Thambirajah v. Girl Guides of Canada (1995), 26 C.H.R.R. D/1
(B.C.C.H.R.): 62

University of British Columbia v. Berg, [1993] 2 S.C.R. 353, 18
C.H.R.R. D/310: 80

LEGISLATION CITED

British Columbia

Human Rights Act, S.B.C. 1984, c. 22, §8: 62

Human Rights Code, R.S.B.C. 1996, c. 210

§1: 59

§8: 1

§8(1): 78

§13: 1, 56, 62

§36(1): 3

§37(2)(a): 108

§37(2)(c)(i): 106

§41: 84

Society Act, R.S.B.C. 1996, c. 433: 13

INTRODUCTION

[1] The complainant, Susan Amy Mamela, alleges that the
respondent, the Vancouver Lesbian Connection (the “VLC”),
discriminated against her regarding employment or any term or
condition of employment, because of her sex and/or political
belief, contrary to §13 of the Human Rights Code, R.S.B.C. 1996,
c. 210 (the “Code”). She further alleges that the respondent
discriminated against her regarding a service or facility
customarily available to the public, because of her sex, contrary
to §8 of the Code.

[2] A hearing was held into the complaint commencing on June 14,
1999. The respondent failed to attend. I determined that it was
appropriate to proceed with the hearing in the absence of the
respondent because I was satisfied that the respondent had been
properly notified of the hearing (Exhibit 2).

[3] After the conclusion of the evidentiary portion of the
hearing and the completion of written submissions, the Deputy
Chief Commissioner filed Notice with the Tribunal that he was
adding himself as a party. In my letter to the parties and the
Deputy Chief Commissioner, I expressed concern as to whether
§36(1) of the Code authorizes the Deputy Chief Commissioner to
add himself as a party to the hearing after the completion of
evidence and submissions. However, in the absence of any
objection by the parties, I accepted the Notice and added the
Deputy Chief Commissioner as a party to the hearing. The Deputy
Chief Commissioner adduced no evidence and made no submissions.

EVIDENCE

[4] I heard oral evidence from the complainant. I also accepted
opinion evidence in the form of an affidavit from Becki Ross,
Assistant Professor in Anthropology/Sociology and Women’s Studies
at the University of British Columbia.

Complainant’s Evidence

[5] The complainant is a transgendered person. She began
attending the Gender Clinic at UBC in 1995. Around that time, she
began using the name “Susan Friday.” Prior to her decision to
present herself as female, the complainant’s name had been “Eric
Friday.” In July 1997, she legally changed her name to “Susan Amy
Mamela” and has used that name consistently since.

[6] The complainant testified that, since November 1995, she has
identified as a lesbian female who is transsexual. She said her
transsexual status is incidental to her lesbian identity, which
she described as central to her being and to her view of the
world. She described her social and political stance as a radical
lesbian feminist. She said that what this means to her is that
she rejects male attempts to define her and male society’s
attempts to “make a woman out of me.” For the complainant, the
term “female” accurately describes her consciousness and her
gender. By contrast, she vigorously rejects the use of the term
“woman,” both as applied to her and to others. She considers
“woman” to be “a socio-political construct” that is offensive to
female persons.

[7] The complainant entered the Gender Clinic in March 1995. In
April 1995, she began a course of drug treatment and, in June
1996, began hormone therapy. In September 1997, she made a formal
request for sex reassignment surgery. She said that her primary
reason for requesting this surgery was to help her to feel whole
and complete. She also believed that it would facilitate her
acceptance in the lesbian community and she feared that funding
for this procedure might not continue.

[8] Certain requirements must be met by anyone seeking to obtain
publicly subsidized sex reassignment surgery. The Gender Clinic’s
protocol requires that the person live in the desired gender as
completely as possible for a period of two years. The complainant
testified that the Medical Services Plan (“MSP”) requires written
approval from two clinical behavioural scientists and that the
person seeking sexual reassignment surgery be employed,
volunteering or enrolled as a student in a recognized
institution.

[9] Because of the complainant’s views, she agreed with her
physician at the Gender Clinic that she would live as a “lesbian
female” rather than as a “woman” for the two-year period. With
respect to the MSP requirements, the complainant chose to
volunteer, rather than to seek employment or register as a
student.

[10] Initially, the complainant volunteered as a shift librarian
with the Gay and Lesbian Centre. From October 1995 to August
1996, she worked a weekly shift there. She read a great deal
about lesbianism but the Centre did not provide the social
contacts with the lesbian community that she had hoped she would
find there.

[11] During her time at the Gay and Lesbian Centre, the
complainant became aware of the VLC. At the time, the complainant
understood that the VLC was a female-only space for lesbians and,
possibly, bisexuals. The VLC provided a social and support
network, held events and did community outreach work. The
complainant wanted to be part of the VLC because she wanted to be
in a female-only space and to be accepted in the lesbian
community. She said she also wanted to study the material in the
VLC’s library.

[12] Acceptance in the lesbian community was important both to
the complainant’s development of her lesbian identity and to
obtaining sex reassignment surgery because participation in a
lesbian organization would demonstrate the consistency with her
self-identification as a lesbian that the psychiatrists at the
Gender Clinic considered important. However, the complainant also
testified that the Gender Clinic subsequently informed her that
documentation of her connection with the VLC was not necessary
for their purposes.

[13] The VLC was incorporated as a society under the Society Act,
R.S.B.C. 1996, c. 433, in 1986 (Exhibit 4, tab 15). Its by-laws
are those set out in Schedule B to the Society Act. It is still
listed on the Register, although it has not made an annual filing
since January 1998.

[14] The VLC’s Constitution sets out its purposes (Exhibit 4, tab
16). These include education and promotion of community awareness
regarding “women’s and lesbian issues,” and provision of a
facility where “lesbians and all women can meet in an open and
supportive atmosphere and receive appropriate services.” Purposes
with respect to the nature of programs to be offered by the VLC
are also stated. A special resolution passed in April 1988
required that the VLC be operated on a not-for-profit basis.

[15] The Annual Report attached to the VLC’s last annual filing
under the Society Act in January 1998 (Exhibit 4, tab 18) notes
that the VLC drop-in centre’s mandate (the “VLC Centre”) is to
include “self-identified lesbian, bisexual, & transsexual queer
womyn.”

[16] The complainant tendered in evidence documents setting out
the VLC’s membership requirements, policies and principles
(Exhibit 4, tab 19). VLC membership is open to “self-defined
lesbian/queer women who can work within/agree with the current
mission statement, principles and policies.” The fee for
membership is $1–20. The VLC’s mission statement is “to organize
as self-identified lesbian/queer women to end lesbian
oppression.”

[17] The complainant first approached the VLC in February 1996.
She went to the VLC and spoke to someone at the desk about
membership. She was told that she could not be a member because
she had been raised as a boy. The complainant then left. In March
1996, she wrote to the VLC, outlining her position with respect
to the admission of transsexual lesbians to a female-only space
(Exhibit 4, tab 24). In it, she argued that the VLC should resist
any pressure from transsexuals to open their female-only space to
transsexuals; rather, such a decision should be made
independently of pressure. She signed the letter “Eric (Susan)
Friday.”

[18] In May 1996, the VLC held its annual general meeting. The
complainant attended this meeting. Two or three other
transsexuals also attended, along with fifty to sixty others. The
complainant testified that there was a lot of discussion
concerning the VLC’s membership policy. The general feeling was
that the VLC should be more open, and the result was a change to
the VLC’s membership policy. The new policy opened membership to
transgendered and bisexual women.

[19] In September 1996, the complainant started going to the VLC
Centre. She became a member in October 1996 and received a
membership card in the name of “Susan Friday” (Exhibit 4, tab
25).

[20] Prior to the events out of which her complaint arises, the
complainant’s experiences at the VLC were positive. She described
the atmosphere as warm and accepting. She said she began
volunteering in the library. She re-shelved books and helped
individuals sign out material. When I asked the complainant
whether library materials could only be taken out by members, she
initially replied that only members could sign out material but
added that proof of name and address would be necessary for
non-members and that the policy was flexible. The complainant
said she also did some photocopying and faxing. She said she did
not have an opportunity to do much else, other than to help set
up for a couple of fund-raising events. The complainant also
spent time reading the material in the library.

[21] Generally, she was at the VLC Centre whenever it was open.
Its regular hours were Thursday, Friday and Saturday, from 10:00
or 11:00 in the morning until 5:00 or 6:00 in the afternoon. The
complainant said that she would arrive each day the VLC Centre
was open, soon after it opened and remain until just before
closing. She attended the VLC Centre from September 1996 to March
1997.

[22] On March 6, 1997, an article by Pamela Lang, “Celebrating
Women’s Diversity,” appeared in Xtra West!, No. 19, p. 15
(Exhibit 4, tab 26). The article was about diversity within the
lesbian community. It included comments by the complainant as
well as others about how they have or have not been welcomed into
the lesbian community. The portion of the article concerning the
complainant reads as follows:

... Susan Friday, who identifies as a transgendered dyke, is a
Vancouver Lesbian Connection member (VLC) and their librarian.

She says she left the Gay and Lesbian Centre in favour of the VLC
because she felt more at ease in a woman-centred environment. She
also told me that she’s not a woman and never will be, because a
“woman” is a social construct and many lesbians see themselves as
lesbians, not women. Others, however, identify more strongly with
the women’s movement than with the queer community.

Friday has benefitted [sic] from changes. She would not have been
able to join the VLC a year or so ago. She was also questioned,
but not challenged, when she went to The Lotus on women’s night.
Some may remember male-to-female transsexual Toby Dancer not
being allowed into the bar on women’s night in ’93. The policy
changed. Yet, when Friday referred to herself as a dyke, a woman
in the bar said, “You’re a guy.”

I would have come to the same conclusion. She has stereotypical
masculine features, an Adam’s apple, which she says would cost
her about a grand to have shaved down, no long hair or nails and
doesn’t wear dresses. At the gender clinic, she was told she
would have to live as a woman and wear dresses. She dresses the
way a lot of women do, regardless of orientation. “If I’m a
lesbian, why should I dress as a socially constructed woman?”

But where some people might have a problem with Friday is in the
fact that she could pass as a straight white male. In fact, some
would argue that she is male since she is a pre-operative
transsexual who isn’t even sure she wants to give up her penis.
Many would argue she has no business being included in an article
on diversity in the women’s community.

[23] The complainant testified that, on the day the article
appeared or the next day, Tina Hurd and Nadine Chambers, both of
whom were on the VLC’s Board of Directors, approached her in the
back room at the VLC Centre and “compelled me into a half hour
conversation.” They were hostile and angry. They expressed great
disapproval of the comments the complainant had made in the
article to the effect that she was female and lesbian but not a
woman. According to the complainant, Chambers said that the
complainant’s comments would erase women’s experience of
themselves. One of Chambers or Hurd called the complainant
“aggressive and mannish.” The complainant recalled that Hurd said
that she didn’t like the way the complainant treated women. The
complainant said she did not understand this comment. She said
she felt “shouted down” in the conversation, although she
attempted to respond to defend her views. The conversation ended
with Hurd saying, “There’s going to be political fallout over
this.”

[24] After this encounter, the complainant felt dismayed, upset
and angry. She felt she had been treated unfairly and was angry
that Hurd and Chambers had not respected her self-identification
and her beliefs.

[25] The next day, the complainant attended the VLC Centre as
ususal. There was no problem. In fact, the complainant continued
her regular pattern of attendance for the next two weeks.

[26] On March 21, 1997, the complainant arrived as usual. Hurd
approached her and thrust “a sheaf of paper” at her. She told the
complainant to leave the VLC Centre immediately. Sonya Boyce and
Alysha Alley, also members of VLC, were present. The complainant
requested an explanation from Hurd, who told her she had
improperly used the computer in the back room. The complainant
denied this and insisted on an explanation. The complainant said
Hurd refused to provide any other explanation but reiterated her
demand that the complainant leave. The complainant described
herself as “rooted to the ground.” The altercation continued for
a few minutes, until Hurd said she would call the police. The
complainant then left. She has not re-entered the VLC Centre
since.

[27] The complainant described her reaction to the encounter on
March 21 as one of shock. She felt that she was treated
outrageously. She recalled that she was told not to contact the
VLC but to wait for the VLC to get in touch with her.

[28] In April 1997, the complainant received a letter from the
VLC (Exhibit 4, tab 27) at Angles, a newsmagazine for which the
complainant had begun volunteering after she left the VLC. The
letter was written by Hurd. It was addressed to “Eric Friday.” It
included a GST refund cheque to the complainant that had been
sent to the VLC for the complainant. The letter stated that, in
future, mail would not be forwarded to the complainant at the
Angles’ address but would be returned to the post office labelled
“address not known.” The letter chided the complainant for having
arranged for her mail to be sent to the VLC without having
advised the VLC Board, and described this action as inappropriate
and unacceptable.

[29] In her testimony, the complainant explained that she had
only provided the VLC address to the government three weeks
before March 21 in order to receive her GST refund cheque,
because she had no other fixed address at that time. She added
that she found the use of the name “Eric” offensive as she had
always identified herself as “Susan” at the VLC Centre.

[30] In August 1996, there were two indirect exchanges between
the parties. On August 6, Nadine Chambers left a telephone
message for the complainant, requesting the complainant to
contact her. The complainant was unable to reach her and the two
did not speak at that time.

[31] Also in August, the complainant published an article in
Angles, “Living the transgendered life” (Exhibit 4, tab 34). In
it, she expressed her views about the term “woman” and referred
to her experience at VLC in the context of her transition from
male to female. She said:

As far as “passing” is concerned (living as a “woman” for at
least two years in order to get surgery), I told my doctor that I
wasn’t a woman but a lesbian. A female doesn’t have to be both
lesbian and woman. (I believe that this distinction was behind a
dispute that led to the end of my work as a librarian at the
Vancouver Lesbian Centre. Actually, “woman” comes from the
Anglo-Saxon “wifman,” which used to mean “wife.”) It took my
doctor a few minutes to understand. I simply didn’t like skirts
and high heels. Being “female” is more important than being
“feminine.” Lesbianism isn’t well-understood at the Vancouver
clinic. I was a very “atypical” case.

[32] On behalf of the VLC, Chambers wrote to Angles in response
to the complainant’s article (Exhibit 4, tab 29). Her letter,
dated August 26, described the complainant as having initially
approached the VLC to share a list she had compiled of lesbian
literature in Lower Mainland libraries. The letter stated:

We are disturbed that Susan has twice misrepresented her
activities at the VLC, first in another community paper earlier
this year, and once again in Angles’ August issue. She was never
the centre’s librarian, as the centre has never had such a
position – paid or volunteer.

Furthermore, she was asked to leave the centre due to behaviour
that clearly signified a lack of respect for guidelines that try
to make a safe space for lesbian and bisexual womyn who work and
utilize the centre.

[33] The letter acknowledged that the complainant might have been
asked occasionally to shelve books “like any other volunteer.”
The letter was published in the September issue of Angles.

[34] The complainant responded to this letter with a letter of
her own, published in the October issue of Angles (Exhibit 4, tab
31). In it, she maintained that others at the VLC Centre referred
to her as a librarian, although she acknowledged that she had
never been officially designated as such. She pointed out that no
one at the VLC had taken issue with the reference to her as the
VLC’s librarian in the March issue of Xtra West! She said that
her duties had extended well beyond “occasional shelving” and
provided her own account of the circumstances in which she left
the VLC.

[35] In her evidence before me, the complainant reiterated the
positions expressed in her letter.

[36] On September 29, the complainant received a letter from
Sonya Boyce on behalf of the VLC (Exhibit 4. tab 30). The letter
was addressed to “Susan Friday.” It informed the complainant that
her membership in the VLC had been suspended for one year and
that she was prohibited from attending VLC events or entering the
VLC Centre for the same period. The letter referred to the VLC’s
“lengthy deliberation process” in arriving at this decision. The
complainant was given a set of reasons to justify the VLC’s
action. They were stated as follows:

In general, your behaviours were disruptive to the overall
functioning of the centre. During the time that you accessed the
centre, it became increasingly difficult for staff and volunteers
to fulfill [sic] their job roles and responsibilities. These
behaviours include:

1. arriving at the centre before it opened and refusing to leave
after it has closed on a daily basis;

2. constantly interrupting staff and volunteers while they
provided support to other centre users or perform administrative
duties;

3. continuously monopolizing conversations with staff, volunteers
and centre users about you and your needs;

4. answering the business/crisis line without proper training or
permission;

5. accessing the back office and using the computer without
permission;

6. using the VLC as your personal mailing address although you
were asked not to;

7. repeatedly ”˜coming on’ to staff and volunteers despite their
lack of interest;

These behaviours denote a lack of respect for personal and
organizational boundaries. When we attempted to discuss your
behaviour and the impact of your behaviour on others, you did not
respond by changing your behaviour. In fact, you continued to
engage in many of the same behaviours. Finally, when we asked you
to leave the centre until we contacted you, instead of respecting
the request, you responded with increasingly aggressive and
threatening behaviour by encroaching on women’s personal space in
an intrusive and intimidating manner. In addition, you have made
repeated attempts to access the centre as well as our staff and
volunteers which made our process of deliberation that much
longer.

[37] The letter continued by reminding the complainant of the
letter she had written to the VLC in March 1996, in which she had
taken the position that lesbian organizations should resist
pressure from transsexuals to include them. A copy of the letter
was enclosed.

[38] The letter referred to the history of the VLC as “a safe
space for all women” whose membership had previously been limited
to “women-born-women who identify as lesbians.” It distinguished
membership from access to the VLC Centre, which “has always been
open to all women, including transgendered women.” It noted that
the membership policy had changed in the previous year to allow
“self-identified queer, bisexual and transgendered women” to
become members.

[39] The letter closed by stating the VLC’s willingness to review
the complainant’s membership as of March 1997, but also stated
that her future access to the VLC Centre would have to be
discussed with a view to ensuring that the conduct complained of
would not continue.

[40] The complainant described herself as both angered and amused
by this letter. She said she thought Boyce was “going all out” in
her accusations. She said the first three points were false. With
respect to the fourth point, she said that she would never answer
the phone at the VLC because she was acutely conscious of her
voice and considered it inappropriate to have a male-sounding
voice answer a women’s crisis line. She said that the fifth
allegation was the only explanation she had been given in the
conversation of March 21. She said that, prior to February 1997,
all volunteers had been given access to the computer but that the
policy changed because of an incident in which some files were
erased. Under the new policy, volunteers could only use the
computer with permission. The complainant said she adhered to
this policy.

[41] The complainant admitted that she had used the VLC’s address
as a personal mailing address on one occasion and that she had
not obtained prior approval to do this. However, she said the
incident occurred after the confrontation on March 21, so it
could not have been a reason for asking her to leave the VLC
Centre at that time.

[42] The complainant denied the seventh allegation and added that
she is careful to “respect personal space.” She denied that the
VLC had ever raised any behaviour issues with her or requested
that she change her behaviour. She denied that she ever attempted
to enter the VLC Centre after March 21, 1997. She expressed her
belief that the letter was simply a pretext to disguise a
politically-motivated expulsion.

[43] The complainant contacted the Human Rights Commission. She
completed a “Complaint Details Questionnaire” on October 15,
1997, and subsequently formalized her complaint.

Affidavit of Becki Ross

[44] The complainant sought to adduce expert evidence in the form
of an affidavit by Becki Ross. Professor Ross was presented as an
expert on the nature of transsexual experience, the importance of
access for lesbian-identified transsexuals to lesbian spaces, the
challenges posed by this access, and the means by which
lesbian-identified transsexuals might be integrated into such
spaces. In the absence of any objection to her qualifications, I
qualified her as an expert on these matters.

[45] I have read Professor Ross’s affidavit evidence. It provides
an overview of societal attitudes to transgendered people, as
well as definitions of the terms “transgendered” and
“transsexual.” This overview helps to set the context in which a
claim of discrimination by a transgendered person arises. I have
disregarded entirely those portions of the affidavit that express
conclusions of law. Further, those aspects of Professor Ross’s
opinion that are based on her interview with the complainant do
not add anything to the complainant’s testimony on these matters
and I attach no weight to them.

[46] I accept Professor Ross’s evidence with respect to the
controversies that have arisen in various lesbian organizations
relating to identity and exclusion. I also accept that the
question of inclusion of transgendered persons in such
organizations can be controversial and that the issue needs to be
addressed with sensitivity.

[47] Finally, Professor Ross suggested four strategies for
including transgendered people who identify as female in lesbian
organizations. The complainant seeks an order requiring the VLC
to take these steps.

Evidence Not Considered

[48] In my review of the evidence, I have declined to consider
certain of the documents included in the complainant’s book of
documents (Exhibit 4).

[49] Tab 10 is a chronology of events written by the complainant.
Some of the information contained in it concerns events during
the investigation process and other matters unrelated to the
present proceedings. I have therefore disregarded it.

[50] Tab 20 is a document that the complainant said she found at
the Angles’ office. It appears to have been written by members of
the VLC. However, its authenticity has not been established and,
at best, it is minimally relevant to issues before me. Therefore,
I have not considered it.

[51] Tabs 21 and 22 are news articles concerning the VLC. They
were not referred to in evidence and do not appear to relate to
the issues before me. I have not considered them. For the same
reason, I have not considered tab 23, an article by Bill Scherk
entitled, “Gender Crossings,” published in Angles, although the
complainant referred to it briefly in her evidence.

[52] Tab 32 is a poster-type document that encourages lesbians to
be wary of transsexuals “invading” the lesbian community and to
take action to prevent this; tab 33 contains a notice of a
meeting exclusive to lesbians who were “born female” together
with the complainant’s letter of objection to this meeting. There
is nothing to link these documents to the respondent; I have
therefore disregarded them.

[53] Tab 36 is a document written by the complainant to help
improve relations between lesbian and transgendered communities.
The complainant said that she presented it at a meeting of the
December 9 coalition. It is irrelevant to the issues before me
and I have not considered it.

[54] Finally, tab 37 contains an article by the complainant that
appeared in the final issue of Angles in October 1997. In it, the
complainant expresses her views on being female and lesbian. The
complainant fully expressed her views on these matters in her
testimony. The document adds nothing to them. It is therefore
unnecessary to consider it.

ISSUES

[55] In my view, the following issues arise for determination in
the present case:

1. The complaint of discrimination in employment

(a) Is the relationship between the complainant and respondent an
“employment” relationship?

(b) Are the complainant’s beliefs concerning the term “woman”
within the scope of discrimination because of “political belief”?

(c) Is the complainant’s transsexual status within the scope of
discrimination because of “sex”?

(d) If the answers to the preceding questions are affirmative, is
the complaint of discrimination in employment justified on the
facts of this case?

2. The complaint of discrimination in the provision of services

(a) Are membership in the VLC and access to the VLC Centre and
events accommodations, services or facilities customarily
available to the public?

(b) Is the complainant’s transsexual status within the scope of
discrimination because of “sex”?

(c) If the answers to the preceding questions are affirmative, is
the complaint of discrimination in the provision of services made
out on the facts of this case?

3. Remedy

(a) If the complaint is justified, what is the appropriate
remedy?

ANALYSIS

The Complaint of Discrimination in Employment

[56] Section 13(1) of the Code provides:

13(1) A person must not

(b) discriminate against a person regarding employment or any
term or condition of employment,

because of the ... political belief ... [or] ... sex ... of that
person.

[57] The complainant submits that she was in an employment
relationship with the VLC, and that its decisions to bar her from
the VLC Centre and to suspend her membership for one year
constitute discrimination on the basis of her political beliefs
and her sex within the meaning of this provision. I will first
determine whether the relationship between the complainant and
the respondent falls within the scope of “employment.” If so, I
must decide whether the complainant’s beliefs about the term
“woman” are political beliefs for the purposes of §13 of the Code
and whether her transsexual status is included in the ground of
“sex.”

(a) Is the Relationship between the Complainant and Respondent an
“Employment” Relationship?

[58] At the close of argument, I requested counsel for the
complainant to make submissions as to whether the volunteer
relationship between the parties falls within the scope of
employment for the purposes of §13 of the Code. Counsel
subsequently provided me with a helpful and detailed written
submission on this issue. I will refer to the arguments made and
the jurisprudence cited in her submission in the course of my
analysis.

[59] “Employment” is defined in §1 of the Code as follows:

“employment” includes the relationship of master and servant,
master and apprentice and principal and agent, if a substantial
part of the agent’s services relate to the affairs of one
principal, and “employ” has a corresponding meaning.

[60] This definition is not exhaustive. It is broader than the
common law definition of employment, which excludes most agent
and principal relationships. However, I note that the definition
is not so broad as to include all relationships between agent and
principal.

[61] It is well-established that human rights legislation must be
interpreted broadly and purposively, in acknowledgement of it[s]
special, quasi-constitutional nature: Robichaud v. Canada
(Treasury Board), [1987] 2 S.C.R. 84 at 89 [8 C.H.R.R. D/4326 at
D/4329]. However, in my view, the explicit restriction contained
in the definition of employment with respect to agent-principal
relationships signals that “employment” does not include every
relationship in which an individual performs some service for
another or others.

[62] Section 8 of the Human Rights Act, S.B.C. 1984, c. 22, was
the precursor to §13 of the Code. In Thambirajah v. Girl Guides
of Canada (1995), 26 C.H.R.R. D/1, the former British Columbia
Council of Human Rights (the “Council”) held (although the
parties had not argued the point) that a large and liberal
interpretation of “employment” in §8 of the Act included the
volunteer relationship between the parties. In that case, the
complainant had been dismissed from her volunteer position as a
“Brown Owl” (or Unit Guider) with a Brownie Pack. The Council
described the respondent organization (at p. D/2 [§4]) as one
that “mimics the military in its structure, chain of command,
lines of authority and discipline.” There were detailed
procedures for appointment to voluntary positions such as that
held by the complainant. For example, she was required to
successfully complete a training and orientation program. There
was also a written policy and procedure with respect to the
cancellation of appointments.

[63] I accept that, in some circumstances, the relationship
between an organization and its volunteers falls within the scope
of “employment” for the purposes of §13 of the Code.

[64] However, it is clear that not every volunteer relationship
will be protected under §13, just as not every relationship in
which money is exchanged for work falls within the scope of
“employment.” The complainant submits that “employment” includes
those volunteer relationships where one person performs work for
others, where there are defined duties, and where there are rules
about the work. She argues that she had such a relationship with
the respondent in that the library work and work at the
fund-raisers were “defined duties” and the “rules about the work”
were “given in evidence by the Complainant and seen in Tab 29” of
Exhibit 4.

[65] Even if these two criteria are necessary and sufficient to
comprise an employment relationship for the purposes of §13, it
is necessary to consider how defined the duties and the rules
must be. In Thambirajah, for example, the respondent had very
detailed guidelines and rules that the complainant was required
to follow. Its militaristic structure allowed little opportunity
for deviation from the rules set down for Brown Owls.

[66] If the respondent in Thambirajah represents one extreme in
the spectrum of volunteer relationships, the relationship between
the complainant and the VLC stands close to the other. Nothing in
the respondent’s Constitution, By-Laws, Policies, or Statement of
Principles makes reference to volunteers or sets out guidelines
or rules respecting volunteers. None of the evidence provided by
the complainant suggested that there were any written guidelines
or policies for volunteers at the VLC. Apart from Board members,
who served in a voluntary capacity, the evidence does not clearly
establish that there were any formal volunteer positions at the
VLC Centre.

[67] In my view, it is reasonable to infer from the evidence that
the complainant was asked or offered, on occasion, to assist with
various activities, including shelving books, photocopying and
faxing and helping to set up for a couple of fundraising events.
It is not clear to me how often she was asked to perform these
tasks and how often she took it upon herself to do what she
thought needed to be done. There is no evidence that she was ever
appointed to the position of “librarian” or that such a position
existed.

[68] The complainant did not give evidence that she was ever
selected to be a volunteer, given any training, or told about a
set of duties she would be expected to fulfil or rules she would
be expected to follow. Although there was a “policy” respecting
computer use by volunteers, this was a response to a specific
incident, not part of a comprehensive set of rules. The
complainant gave no other examples of rules or guidelines for
volunteers.

[69] Tab 29, to which counsel referred in argument, was the
letter the VLC sent to Angles in response to the article the
complainant had published. In it, the VLC states that it has
never had a position of librarian, paid or volunteer. The letter
does refer to “guidelines,” but these relate to persons attending
the VLC Centre, not to volunteers. There is no evidence that the
complainant had any regular hours of work or that she reported to
anyone.

[70] In short, the complainant spent her time at the Centre
whenever it was open and helped out whenever asked or when she
felt there was something to be done. Does this sort of
relationship fall within the scope of “employment” for the
purposes of §13?

[71] The cases cited by the complainant in support of her
position fall short of establishing that this kind of
relationship is protected by §13 of the Code. Cormier v. Alberta
Human Rights Commission (1984), 5 C.H.R.R. D/2441 (Alta. Q.B.)
determined that the protection against discrimination in
employment extends to a trucker who is a dependent contractor.
Although the case illustrates a liberal interpretation of the
statute, the context is very different from that before me. I
note that, in reaching its conclusion, the Court stressed the
importance of ensuring [at p. D/2449, §20287] “equality of
opportunity in the earning of a livelihood.”

[72] Brown v. Waterloo Regional Board of Commissioners of Police
(1986), 13 C.C.E.L. 45 (Ont. Bd.Inq.), Pannu v. Prestige Cab Ltd.
(1986), 8 C.H.R.R. D/3911 (Alta. C.A.), Canadian Pacific Ltd. v.
Canada (Human Rights Comm.) and Fontaine (1990), 16 C.H.R.R.
D/470 (F.C.A.), and Skelly v. Assist Realty Ltd. (No. 1) (1991),
16 C.H.R.R. D/1 (B.C.C.H.R.) are all distinguishable in that they
involved an exchange of work for money, although the monies
received did not necessarily come from the respondent. In all of
these cases, the complainants relied on the work to “earn a
livelihood.”

[73] Brown v. Robinson (1989), 10 C.H.R.R. D/6286 (B.C.C.H.R.)
and Kippen v. Big Brothers Assn. of Winnipeg Inc. (1993), 20
C.H.R.R. D/483 (Man. Bd.Adj.) involved volunteers. In Brown,
however, although the complainant was not paid at the time the
discrimination occurred, she was volunteering for a new business
in the expectation that she would receive a paid position when
the business became profitable.

[74] Kippen, like Thambirajah, involved an organization where
volunteers played an essential role and where volunteer work was
highly organized. The Board of [Adjudication] found that Big
Brothers actively recruits volunteers, provides training and
conducts reference checks. The Manitoba legislation explicitly
defines “employment” as including both paid and unpaid work.

[75] Thus, the two cases in which protection against
discrimination in employment has been extended to volunteers
concerned situations in which the organization solicited the
services of volunteers, provided training, a set of expectations
(rules and guidelines), and a structure for accountability. All
of these elements are lacking in the present case.

[76] There is no evidence that the VLC made any regular demands
of the complainant or had any defined set of expectations of her.
There is no evidence that the VLC relied on the complainant to
work in the library or to help set up for fundraising events, or
to attend at the VLC Centre at all. Rather, it was the
complainant who, for compelling personal reasons, wanted to spend
time at the Centre in order to study material in the library and
gain acceptance in the community. Although she may have believed
that volunteering with the VLC would assist in her treatment at
the Gender Clinic, there is no evidence that the Clinic required
her to volunteer there. It is true that the VLC benefited from
the tasks she performed while at the VLC Centre and may have
requested her to help out on occasion. In my view, however, the
casual requests for assistance that the VLC may have made over a
period of time and the complainant’s willingness to perform them
do not, in these circumstances, constitute an employment
relationship within the meaning of §13 of the Code.

[77] In conclusion, the relationship between the complainant and
the VLC does not fall within the scope of “employment” for the
purposes of §13 of the Code. It is therefore unnecessary to
address the other issues relating to this provision. The claim
based on §13 of the Code is dismissed.

The Complaint of Discrimination in the Provision of Services

[78] Section 8(1) of the Code provides:

8(1) A person must not, without bona fide and reasonable
justification, ...

(b) discriminate against a person or class of persons regarding
any accommodation, service or facility customarily available to
the public,

because of the ... sex ... of that person ...

[79] The complainant argues that the VLC’s decisions to bar her
from the VLC Centre and VLC events, and to suspend her membership
in the VLC for a period of one year, discriminated against her on
the basis of her sex. Her claim is restricted to “sex” because
“political belief” is not a prohibited ground of discrimination
under §8 of the Code. I will first determine whether attendance
at the VLC Centre and events and membership in the VLC are
accommodations, services or facilities customarily available to
the public, and then decide whether transsexual status falls
within the scope of “sex.” If the answer to both these questions
is affirmative, I will consider whether discrimination has been
made out on the facts of this case. Since the respondent did not
appear at the hearing to present any justification for its
action, the question of whether there was a “bona fide and
reasonable justification” does not arise.

(a) Are membership in the VLC and access to the VLC Centre and
events accommodations, services or facilities customarily
available to the public?

[80] The complainant relies on the Supreme Court of Canada’s
decision in University of British Columbia v. Berg (1993), 18
C.H.R.R. D/310 (S.C.C.) to argue that membership in the VLC and
access to the VLC Centre and VLC events were services customarily
provided to the public. She submits that Berg established that
“public” is determined by a relational analysis. The key
considerations are the nature of the services in issue and the
relationship between the service provider and the service user.
She argues that an assessment of these criteria leads to the
conclusion that both membership in the VLC and access to the VLC
Centre and events were public services. She points to the fact
that the membership was open to members of the public who met the
VLC’s eligibility criteria, that all of the purposes of the VLC
listed in its Constitution relate to the provision of public
services, as do the activities described in its Annual Report.
She adds that there is no evidence that any of the VLC’s services
were restricted to members. The Centre was open to members as
well as non-members, and both members and non-members could use
library materials. The complainant submits that “one of the key
objectives of the VLC was to create and foster a public profile.”

[81] Berg arose when UBC’s School of Family and Nutritional
Sciences refused to provide Janice Berg, a graduate student at
the School, with a key to the building and a “ratings sheet,”
both of which were usually given to graduate students. Berg
alleged that this was discrimination regarding a service
customarily available to the public. Lamer C.J.C., writing for a
majority of the Court, determined that “public” in this context
need not include every member of the community, and that human
rights protection extends past the admissions process (at p.
D/329 [§55]):

... Every service has its own public, and once that “public” has
been defined through the use of eligibility criteria, the [Human
Rights] Act prohibits discrimination within that public.

[82] Although he acknowledged that not all service providers are
in public relationships with users of their services, Lamer
C.J.C. rejected a quantitative approach to determining when the
relationship between service provider and user falls within the
ambit of human rights legislation. Instead, he adopted a
relational approach (at D/331 [§61]):

The idea of defining a “client group” for a particular service or
facility focuses the inquiry on the appropriate factors of the
nature of the accommodation, service or facility and the
relationship it establishes between the accommodation, service or
facility provider and the accommodation, services or facility
user, and avoids the anomalous results of a purely numerical
approach to the definition of the public. Under the relational
approach, the “public” may turn out to contain a very large or a
very small number of people.

[83] Lamer C.J.C found that the relationship between Berg and the
School was a public relationship because the admissions process
was not used to establish an exclusive or private institution,
but only to ensure that individuals possessed the qualifications
necessary to enable them to take successful advantage of the
services provided (at pp. D/329–D/330). He characterized the
provision of the building key and ratings sheet as adjuncts to
the educational and recreational services provided by the School
to graduate students, notwithstanding that the School exercised
some discretion in providing them. He concluded that, in denying
the key and ratings sheet to Berg, the School had discriminated
with respect to a “service customarily available to the public.”

[84] Before turning to an application of Berg in the present
case, it is useful to consider §41 of the Code. It provides,
under the heading “Exemptions”:

41. If a charitable, philanthropic, educational, fraternal,
religious or social organization or corporation that is not
operated for profit has as a primary purpose the promotion of the
interests and welfare of an identifiable group or class of
persons, characterized by a physical or mental disability or by a
common race, religion, age, sex, marital status, political
belief, colour, ancestry or place of origin, that organization or
group must not be considered to be contravening this Code because
it is granting a preference to members of the identifiable group
or class of persons.

[85] The stated purpose of the VLC was to promote education and
community awareness of women’s and lesbian issues. It was a
non-profit organization. Thus, by virtue of §41, the VLC’s
restriction of membership to “self-identified lesbian/queer
women,” is not discriminatory.

[86] However, the complainant was admitted as a member of the
VLC. Thus, access to membership is not in issue. Her complaint is
that the VLC discriminated against her when it suspended her
membership and barred her from the VLC Centre and VLC events. The
§41 exemption does not remove the protection of the Code from
members of organizations to which it applies, if the nature of
the services provided and the relationship between the
organization and its members are properly characterized as
“public.”

[87] In light of Berg, I have no difficulty concluding that
access to the VLC Centre and to VLC events were services
customarily available to the public, both because of the nature
of the services and because of the relationship between the
service provider and service users. The Centre was open to all
women and it explicitly included “self-identified lesbian,
bisexual, & transsexual queer womyn.” It was intended to be a
space where “lesbians and all women can meet in an open and
supportive atmosphere and receive appropriate services.” The
library materials at the VLC Centre were available to members and
non-members. Events were also open to both members and
non-members. The fact that events and the VLC Centre may have
been open only to a subset of the public at large, namely women
and, in the case of some events, women and their families, does
not mean that the services are not public.

[88] The question of whether the VLC’s suspension of the
complainant’s membership can be considered discrimination
regarding a service customarily available to the public is harder
to determine. Given the respondent’s failure to appear at the
hearing, I did not have the benefit of full argument on the
issue. My determination of whether membership in an organization
such as the VLC is a service customarily available to the public
is therefore confined to the facts of this case.

[89] With respect to the nature of the services, the evidence did
not establish that members of the VLC enjoyed any services or
benefits not equally available to non-members. Attendance at the
VLC Centre, access to library material and admission to events
was provided to non-members as well as members. It appears that
policy discussions, such as that which resulted in the admission
of the complainant to the VLC included both non-members and
members. From the complainant’s perspective, the suspension of
her membership removed a public affiliation with a lesbian
organization that had been important to her. Thus, it appears
that all of the services provided by the VLC were available to
the whole community it served. In my view, membership in the VLC
was an “adjunct” to the VLC’s community-related services in the
same way that the key and ratings sheet were found to be adjuncts
to the university’s educational and recreational services in
Berg.

[90] With respect to the nature of the relationship between the
service provider and service users, I find that the relationship
between the VLC and its members was a public relationship. In my
view, the relationship between the service providers and service
users is an especially important factor when membership in the
organization is in issue. Here, the admissibility criteria
applied by the VLC were self-identification as a lesbian/queer
woman, and agreement with the VLC’s mission statement, principles
and policies. These criteria make eligibility for membership a
matter of individual choice for any woman. There is no evidence
of any additional admissions process involving the sort of
screening and selection of members by the VLC that would support
a conclusion that the relationship between members and the VLC is
“exclusive or private” rather than “public” as described by Lamer
C.J.C. in Berg.

[91] I conclude, therefore, that both membership in the VLC and
access to the VLC Centre and VLC events were services customarily
available to the public for the purposes of §8 of the Code.

(b) Is the complainant’s transsexual status within the scope of
discrimination because of “sex”?

[92] This Tribunal has previously held this question in the
affirmative. In Sheridan v. Sanctuary Investments Ltd. (No. 3)
(1999), 33 C.H.R.R. D/467 (B.C.Trib.), Tribunal Member Humphreys
found that discrimination against a transsexual constitutes
discrimination because of sex. She also found that, based on the
medical evidence before her, including that the complainant was a
transsexual in transition from male to female at the relevant
time, there was discrimination because of physical or mental
disability.

[93] In arriving at her conclusion with respect to the ground of
sex discrimination, Member Humphreys referred to a number of
decisions in other jurisdictions that have recognized
discrimination because a person is transsexual as a form of sex
discrimination (at pp. D/474–D/475). She stated (at p. D/475
[§93]):

In my view, given the large and liberal interpretation which the
Supreme Court of Canada has emphasized must be applied to human
rights legislation, I am satisfied that discrimination against a
transsexual constitutes discrimination on the basis of sex.
Whether the discrimination is regarded as differential treatment
because the transsexual falls outside the traditional man/woman
dichotomy (as in P. v. S., supra) or because male-to-female
transsexuals are regarded as a sub-group of females (and vice
versa) (as in Maffei, supra), the result is the same:
transsexuals experience discrimination because of the lack of
congruence between the criteria which determine sex.

[94] In the present case, the complainant has not alleged mental
or physical disability as a ground of discrimination. I agree
with the reasoning in Sheridan that discrimination against a
person who is transsexual can be a form of sex discrimination.

(c) If the answers to the preceding questions are affirmative, is
the complaint of discrimination in the provision of services made
out on the facts of this case?

[95] In order to succeed in her complaint, the complainant must
show that she was treated adversely with respect to the services
offered by the VLC to the public and that it is reasonable to
infer that her sex was a factor in this differential treatment.

[96] It is obvious that, in prohibiting her from attending VLC
events or the VLC Centre, and in suspending her membership for
one year, the respondent treated the complainant adversely. In my
view, it is reasonable to infer that the complainant’s sex was a
factor in this treatment.

[97] During the conversation in March 1997, in which Hurd and
Chambers confronted the complainant to express their disapproval
of her views concerning the term “woman,” one of them called the
complainant “aggressive and mannish.” The letter that Hurd wrote
to the complainant in April 1997, forwarding her GST refund
cheque, was addressed to “Eric Friday.” Although this was the
complainant’s legal name at the time (and, consequently, that it
is likely that the GST letter was addressed to Eric Friday), Hurd
knew the complainant as Susan Friday and knew that she
self-identified as a lesbian female. I find that Hurd’s decision
to use “Eric” rather than “Susan” was deliberate and signified
disapproval of the complainant’s self-identification as a member
of the female sex.

[98] I am satisfied, on the basis of these incidents, that the
complainant’s status as a transsexual, specifically her
self-identification as female, was a factor in the decisions to
suspend her membership and prohibit her from attending the VLC
Centre and VLC events communicated in the September 29 letter.
Although both incidents pre-date the September 29 letter by
several months, they are related because the letter apologized
“for the length of time that it has taken us to respond” and
referred to a “lengthy deliberation process.” The complainant’s
use of the VLC’s mailing address is specifically mentioned as one
of the reasons for the disciplinary action.

[99] In sum, I find that the complainant has led evidence that
has satisfied me that it is reasonable to infer that the
respondent discriminated against her regarding a service
customarily available to the public because of her sex. In the
absence of any evidence from the respondent to dispel that
inference or to justify its actions, I find the complaint
justified.

REMEDY

[100] The complainant seeks compensation for the damage to her
dignity, feelings and self-respect. In argument, counsel for the
complainant submitted that the range of damages I should consider
falls between $3,000 and $4,000.

[101] In Sheridan, $2,000 was awarded as compensation for injury
to feelings, dignity and self-respect. In that case, the
complainant was told not to use the women’s washroom after she
was seen leaving it on one occasion and was refused admission to
the bar on another occasion. In Québec (Comm. des droits de la
personne et des droits de la jeunesse) v. Maison des jeunes
À-Ma-Baie Inc. (No 2) (1998), 33 C.H.R.R. D/263 (Trib.Qué.),
$4,000 was awarded for injury to dignity. In that case, the
complainant was fired from her position as a street youth worker
with the respondent when she revealed that she was a transsexual
and intended to live in her desired gender. The respondent
subsequently refused to re-hire her.

[102] In the present case, the complainant was summarily refused
access to a place that was of great importance to her and her
membership in the VLC was suspended. Counsel submitted that the
VLC had failed to follow its own by-laws in taking these actions.
However, I note that the process set out in the by-law applies to
expulsion of members, which did not happen here. Still, the
process followed by the VLC in reaching its decision can hardly
be considered fair. There is no evidence that the complainant had
any opportunity to respond to, or was even made aware of, any of
the allegations that became the reasons set out in the letter of
September 29 for the disciplinary action, excepting the item
about computer use. A member of the VLC Board insisted that she
leave the Centre and not return in March 1997. The complainant
was not given any explanation for this action until September.

[103] The complainant said she was “upset,” “dismayed” and “kind
of depressed” after the initial confrontation with Hurd and
Chambers in early March. However, she continued to attend the
Centre as usual, without difficulty for the next couple of weeks.
She said she was shocked and felt that she had been treated
outrageously when she was ordered to leave the VLC Centre on
March 21. She said she was insulted by the letter addressed to
“Eric Friday.” In general, the complainant testified that she
felt unfairly treated by the VLC, and angered by its injustice to
her.

[104] There was no evidence that the VLC’s discriminatory conduct
affected the complainant in her ability to volunteer elsewhere or
in the progress of her treatment at the Gender Clinic. While the
dispute between the parties was publicly reported, it was the
complainant who first published the fact of her departure from
the VLC in the August issue of Angles. The VLC responded with a
letter setting out its version of events in the September issue,
and the complainant replied to it in a letter in the October
issue.

[105] Considering all of these circumstances, I award the
complainant $3,000 in compensation for injury to her feelings,
dignity and self-respect.

[106] In her opening submissions, counsel for the complainant
also requested that I make an order, under §37(2)(c)(i) of the
Code, to require the respondent, if it resumes active operation,
to take the four steps set out by Professor Ross at the
conclusion of her affidavit. Those steps are:

i) Acceptance and inclusion of transsexual lesbians in the
physical space of the centre, e.g. posters on the walls, print
and audio-visual resources in the library, notices of
transgender/transsexual conferences, performances, book launches,
video screenings, etc.

ii) Pro-active initiation of educational seminars on transgender
and transsexual issues internal to the organization (similar to
anti-racist and anti-ageist workshops that target white youth).
Pro-active efforts to co-sponsor community events external to the
organization featuring transgender/transsexual lesbians such as
Leslie Feinberg, Kate Bornstein and the “Taste This” collective.
These would be part of a broader consideration of educational
initiatives directed at expanding the consciousness of, and
knowledge about, transsexual issues among transsexual lesbians,
as well as among non-transsexuals ...

iii) Pro-active efforts to recruit transsexual lesbians to the
decision-making core of the organization as part of a broader set
of outreach strategies; pro-active efforts to include mention of
transsexual lesbians in advertisements for paid and volunteer
staff.

iv) Pro-active lia[i]sons with transgender and transsexual
organizations within and outside of Vancouver. [Emphasis in
original.]

[107] In her affidavit, Professor Ross describes these steps as
“four possible strategies that groups like the [VLC] might
implement to ”˜accommodate’ transgender and transsexual people
who, in good faith, identify as female” [emphasis added]. She
adds that these strategies “are premised on consensual efforts by
transsexual and non-transsexual lesbians to communicate and form
alliances with one another in the interests of challenging the
heteronormative sex/gender system.”

[108] The mutual desire to work together that Professor Ross
states is a necessary pre-condition to these four steps cannot be
ordered into existence by a human rights tribunal. I am required,
under §37(2)(a) of the Code, to order the respondent to cease its
contravention and refrain from committing the same or a similar
contravention. In my view, this order would require the VLC,
should it resume operating, to ensure that it does not
discriminate against transsexual lesbians/women who would
otherwise be entitled to use its services because of their sex.
Considering all of the circumstances of the case, I do not think
it is appropriate for me to set out in more detail what steps
compliance with this order would entail.

CONCLUSION

[109] I dismiss the complaint based on §13 of the Code. I find
the complaint based on §8 of the Code justified. Pursuant to
§37(2)(a) of the Code I order the respondent to cease its
contravention of the Code and to refrain from committing the same
or a similar contravention. I further order the respondent to pay
to the complainant the sum of $3,000 in compensation for injury
to her dignity, feelings and self-respect.

^^

BRITISH COLUMBIA
SEX DISCRIMINATION
Indexed as: Ferris v. O.T.E.U., Local 15
Cited: (1999), 36 C.H.R.R. D/329 (B.C.H.R.T.) 

Paragraphs 1 – 114
Leslie Ferris
Complainant
v.
Office and Technical Employees Union, Local 15
Respondent
and
Deputy Chief Commissioner, British Columbia Human Rights
Commission
Party
Date of Decision:
October 15, 1999
Before:
British Columbia Human Rights Tribunal, Nitya Iyer
Appearances by:
Catherine Sullivan, Counsel for the Complainant
Nao Fernando, Counsel for the Respondent
Deirdre Rice, Counsel for the Deputy Chief Commissioner

SEX DISCRIMINATION – definition of sex discrimination includes
transsexualism – employment terminated for transsexual – washroom
use by transsexual – DISABILITY – physical disability includes
transsexualism – discrimination in employment on the basis of
transsexualism – employment terminated – EVIDENCE – sufficient
evidence to establish prima facie case of discrimination

TRADE UNIONS – union supports discriminatory policy – union fails
to support grievance – union as respondent – DAMAGES –
compensation for injury to dignity and self-respect

Summary: The B.C. Human Rights Tribunal rules that the Office and
Technical Employees Union, Local 15 discriminated against Leslie
Ferris, a transsexual, on the grounds of sex and disability.

The human rights complaint arose because of the Union’s actions
following an anonymous complaint to the employer about the
complainant’s use of the women’s washroom. The complaint against
the employer was settled prior to the hearing.

Dr. Watson, an expert in general medicine and psychiatry in the
areas of sex and gender identity, defined a transsexual as a
person who is “intensely disordered.” Dr. Watson explained that a
person who is diagnosed as having “high intensity transsexualism”
and who desires sex reassignment surgery must live in the desired
gender as completely as possible for two years. The Tribunal
finds that the Leslie Ferris had been presenting herself as a
woman and receiving hormone treatment since 1975. The complainant
had not had sex reassignment surgery.

Leslie Ferris was a call-taker in the dispatch office of a taxi
company. The employer called a joint Union-management meeting to
discuss the washroom complaint. Ferris did not attend. Management
reprimanded Ferris for failure to attend the meeting. Ferris
resigned, and then sought the assistance of the Union in order to
return to work.

The Tribunal holds that the Union discriminated against Ferris
because of transsexualism, and that the grounds of sex and
disability are both applicable. The Union failed to solicit
Ferris’s input, in preparation for the meeting with management,
and appointed a person to represent the complainant who might
have been the source of the complaint about the washroom. When
Ferris did not attend the meeting with management, the Union
failed to confirm that Ferris had been informed of the meeting,
or to make some effort to contact her.

Further, the Union failed to make any attempt to contact Ferris
after the meeting with management, despite her unexplained
absence. The Union departed so far from even a minimal standard
of responsibility to a member that it was reasonable to infer
that Ferris was treated differently from other Union members and
that transsexualism was a factor.

The Union also wrote a letter to Ferris which the Tribunal found
departed markedly from a reasonable response by a Union to a
member’s queries. The Union failed to take responsibility for
management’s wrongful reprimand of Ferris for her failure to
attend the meeting with management. The Union’s letter could be
interpreted to be saying that the reprimand was warranted, though
it was not clear that anyone had informed Ferris that the meeting
was taking place.

The Tribunal finds that the severe consequences suffered by
Ferris, including loss of employment and serious depression,
could have been avoided entirely if the Union representative had
talked to Ferris prior to the meeting with management. Had this
been done, the Union would have known that access to the women’s
washroom was controlled by a key system and that the washroom
could be locked from inside by the person using it. In other
words, the Union would have known that there was, in fact, no
problem since the washroom was locked and was used by one person
at a time. Instead, the Union simply acquiesced in the company’s
treatment of the anonymous complaint as legitimate, and in its
characterization of Ferris as a person who required some form of
accommodation.

The Tribunal orders the Union to pay compensation in the amount
of $6,000.80.

CASES CITED

Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R.
D/5029 (Can.Trib.): 87

Central Okanagan School Dist. No. 23 v. Renaud (1987), 8 C.H.R.R.
D/4255 (B.C.C.H.R.): 79

Central Okanagan School Dist. No. 23 v. Renaud, [1992] 2 S.C.R.
970, 16 C.H.R.R. D/425: 79

Mamela v. Vancouver Lesbian Connection (1999), 36 C.H.R.R. D/318
(B.C.Trib.): 83, 108

Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd.,
[1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 86

Québec (Comm. des droits de la personne et des droits de la
jeunesse) v. Maison des jeunes À-Ma-Baie Inc. (No 2) (1998), 33
C.H.R.R. D/263 (Trib.Qué.): 108

Seignoret v. British Columbia Rehabilitation Society (No. 2)
(1999), C.H.R.R. NP/99-075 (B.C.Trib.): 87

Sheridan v. Sanctuary Investments Ltd. (No. 3) (1999), 33
C.H.R.R. D/467 (B.C.Trib.): 82, 108

Shields v. Cameron (1993), 20 C.H.R.R. D/222 (B.C.C.H.R.): 87

LEGISLATION CITED

British Columbia

Human Rights Code, R.S.B.C. 1996, c. 210

§13: 1, 78, 103

§14: 4, 78, 103

§37(2)(a): 114

AUTHORITIES CITED

Vizkelety, Béatrice, Proving Discrimination in Canada (Toronto:
Carswell, 1987): 86

INTRODUCTION

[1] Leslie Ferris (the “complainant”) filed a complaint under §8
of the Human Rights Act, S.B.C. 1984, c. 22 (now §13 of the Human
Rights Code, R.S.B.C. 1996, c. 210 (the “Code”)), alleging that
Beach Place Ventures Ltd. and the Office and Technical Employees
Union, Local 15 (the “Union”) had discriminated against her with
respect to terms and conditions of her employment, because of her
sex and/or disability. The Complaint Information Form is dated
November 11, 1995.

[2] The complaint was referred to the Tribunal for hearing on
December 17, 1998. On January 15, 1999, the Deputy Chief
Commissioner added himself as a party to the hearing. In June
1999, the complainant settled her complaint against Beach Place
Ventures Ltd. As a result, the Union is presently the only
respondent to this complaint.

[3] Briefly, the complaint arises out of the Union’s actions
following a complaint that was made about the complainant’s use
of the women’s washrooms at work. The complainant is a
transsexual. She alleges that the Union discriminated against her
in its response to the incident, both initially and with respect
to the events that followed.

[4] At the outset of the hearing before me, the complainant
applied to amend the complaint to add a claim based on §14 of the
Code. Section 14 prohibits trade unions, employers’ organizations
or occupational associations from discriminating against any
person or member on various grounds, including sex and physical
disability. The Deputy Chief Commissioner supported the
application; the Union opposed it. I determined that it was
appropriate to grant the application and amended the complaint
accordingly. Reasons for my decision were provided to the parties
in my letter of August 3, 1999.

EVIDENCE

[5] The complainant testified on her own behalf, and called Dr.
Diane Watson and Gail Owen as witnesses. I qualified Dr. Watson
as an expert in general medicine and psychiatry in the areas of
sex and gender identity. Dr. Watson has also treated the
complainant for some time. I qualified Gail Owen as an expert on
educational and practical issues relating to transgendered people
in their workplaces. Through her position with the Public Service
Alliance of Canada, Ms. Owen provides advice, information and
training on this subject to federal and provincial unions and
related labour organizations. She is also a transsexual and draws
on her personal experience to inform her work.

[6] The Deputy Chief Commissioner called no witnesses. He
tendered one document in evidence, a report by the Transgendered
Law Reform Project entitled, Finding Our Place (Exhibit 24).
Counsel for the Deputy Chief Commissioner indicated that the
report contains a helpful glossary of terms relating to gender
identity, and contains evidence of the vulnerability of
transgendered people to adverse treatment.

[7] The Union called two witnesses. Paul Bjarnasen is a business
representative for the Union, and dealt with the events relevant
to this complaint on the Union’s behalf. Karen Blackwell is a
call-taker with Beach Place Ventures Ltd. and has worked with the
complainant.

[8] Most of the relevant facts are not in dispute. I found all of
the witnesses generally credible. There is no dispute over the
matters addressed by Dr. Watson and Ms. Owen. The focus of Ms.
Blackwell’s evidence was the system in place for use of the
women’s washroom at the relevant time. Her evidence on the
women’s washroom conflicted with Mr. Bjarnasen’§I prefer her
evidence: she had no interest in the complaint and, as someone
who used this washroom, would be more likely [to] remember it.

[9] Ms. Ferris and Mr. Bjarnasen were the principal witnesses.
Each testified about the events as they have come to perceive
them, a perception that naturally has been affected by the
passage of time and their respective positions in relation to the
complaint. Ms. Ferris’s recollection of events was sometimes
poor. She had difficulty recalling the precise chronology of
events and the content of various documents. I am satisfied that
this is attributable to her fragile mental health, rather than to
an attempt to dissemble.

FACTS

Gender Identity Disorders

[10] Dr. Watson testified that gender identity disorders
(previously known as gender dysphoria) encompass a range of
disorders arising from unhappiness with one’s gender. She
described the medical standards for treatment and care of persons
with gender identity disorders, as well as the procedures and
approaches used by the Gender Clinic. A transsexual is a person
who is “intensely gender disordered.” A person who is diagnosed
as having “high intensity transsexualism” and who desires sex
reassignment surgery must fulfil certain pre-conditions,
including completing the “real life” test. The real life test
requires the person to live in the desired gender as completely
as possible for two years. This period of adapting to life in the
desired gender is often referred to as “transition.” Transition
is an enormous challenge that has a profound impact on the
individual and his or her social, employment and family
relationships.

[11] Ms. Ferris has been living as a woman since 1975. She
changed her name and identification in that year and has
consistently presented herself as a woman since then. She began
hormone treatment in 1975 and has continued on this regime. She
has been a patient of the Gender Clinic since it opened in 1985.
Ms. Ferris has satisfied all of the Gender Clinic’s conditions
for sex reassignment surgery and has received approval for the
procedure. She has not yet had the surgery because of her
financial circumstances and general health, reasons unrelated to
her gender identity.

Transsexuals in the Workplace

[12] Dr. Watson testified about the impact on a transgendered
person who is living in the desired gender of being challenged as
not truly of that gender. She said that such challenges are
distressing. They lead to feelings of humiliation and shame, as
well as anger. They are embarrassing.

[13] Dr. Watson said that, in her view, it is best to try to
discuss issues that arise about transsexual people in the
workplace in an open and honest manner, not in a confrontational
way. Often, the misunderstanding of co-workers and employers is
based on fear and ignorance.

[14] Ms. Owen testified that washroom use issues are often
contentious. She conducts workshops and advises unions and other
labour organizations on how to address washroom use and other
issues that may arise in a workplace with transgendered
employees.

[15] Both Ms. Owen and Dr. Watson provided helpful background
information on gender identity issues in the community and the
workplace, as well as transgendered people’s concerns about lack
of social acceptance and respect. The report, Finding Ourselves,
also addresses transgendered people’s vulnerability to prejudice
and discrimination.

[16] I accept that transgendered people are particularly
vulnerable to discrimination. They often bear the brunt of our
society’s misunderstanding and ignorance about gender identity.
In the context of the workplace, washroom use issues are often
contentious and, in the absence of knowledge, sensitivity and
respect for all concerned, can inflict a great deal of emotional
harm on the transgendered person.

The Workplace

[17] Beginning in 1979, Ms. Ferris worked for some fifteen years
as a taxi driver with Black Top Cabs, a taxi company that is
operated by Beach Place Ventures Ltd. (the “company”). In 1993,
she applied for a job as a call-taker within the dispatch office.
She was hired for this position and, in December 1993, Ms. Ferris
became an employee of the company. At the same time, she became a
member of the Union. Ms. Ferris worked part-time for about a year
and then took on a full-time shift. In May 1995, Ms. Ferris
worked a regular full-time afternoon shift, from 5:00 p.m. until
midnight. Although she initially testified that she was paid an
hourly wage of $13.51, she later agreed with the respondent’s
figure of $12.51 per hour.

[18] Generally, there were two call-takers and two dispatchers
working out of the dispatch office on the afternoon shift. Peter
Bryant, the supervisor, was also in and out of the office. The
“wicket” was located near the dispatch office and generally had
one person in it to attend to the drivers’ needs. The dispatch
office and wicket shared the men’s and women’s washrooms on the
first floor. Drivers’ washrooms were located elsewhere. There
were other washrooms for the people who worked on other floors of
the building.

The Washroom

[19] As the first floor women’s washroom figures centrally in the
complaint, it is important to set out in detail how it was used.
Ms. Blackwell testified that, when the company first moved into
the building, the first floor washrooms were unlocked. However,
this changed because people were coming in from the street to use
the washrooms and a microwave oven was stolen from the kitchen.
Both first floor washrooms and the kitchen were then locked. From
then on, if someone wanted to use the women’s washroom, she would
have to get the key. Once inside, the person could lock the door
to prevent anyone else from entering. Ms. Blackwell said that the
switch to a key system of access to the first floor washrooms
happened well before May 1995, when the events giving rise to
this complaint began.

[20] The complainant testified that the women’s washroom was kept
locked and that one had to get the key in order to use it. Mr.
Bjarnasen testified that the washrooms were not kept locked at
the time of the events giving rise to the complaint. He said that
it was only after Ms. Ferris left her position that a key system
for using the washrooms was implemented. However, he also
admitted that he was not very familiar with access to the first
floor washrooms in May 1995, as he did not use them himself.

[21] As I have indicated, I prefer Ms. Blackwell’s evidence as to
whether access to the washrooms was restricted by a key system in
the spring of 1995. I find that, at the relevant time, a key was
required to enter the first floor women’s washroom. Once inside,
the user could lock the door to prevent others from entering.

Events Prior to May 24

[22] Throughout the years she was associated with the company,
both as a driver and as a call-taker, Ms. Ferris presented
herself as a woman and believed that she was accepted as female
by those around her. Her union card (Exhibit 3) gives her name as
“Miss Ferris.” She always used the women’s washroom. She did not
think anyone at work knew that she had once been a man, except
for the individuals she herself had told. The complainant said
that she had told three co-workers whom she had known for a long
time. Ms. Ferris said she was happy in her job and no one
suggested otherwise.

[23] Although the complainant testified that she believed her
transsexual status was not widely known at work, several others
were aware of it. Mr. Bjarnasen testified that John Bulmer, the
complainant’s shop steward, had approached him over a year
previously and asked if he was aware that Ms. Ferris was “really
a man.” Mr. Bjarnasen testified that he was not surprised by this
comment. He also said that Ms. Lambert was not surprised by the
information that Ms. Ferris was a transsexual, relayed at the May
15 meeting. Ms. Blackwell testified that she had learned from Ms.
Ferris of her transgendered status well before the events in
issue. Although Ms. Ferris said she could not remember having
spoken to Ms. Blackwell about her gender, the complainant had
difficulty remembering many events associated with her complaint.
I accept Ms. Blackwell’s evidence about her conversation with the
complainant. Ms. Blackwell also said she had talked to others
about the complainant’s gender and believed that Ms. Ferris had
also been open about her gender status with Mr. Bryant.

[24] In any event, there is no disagreement that Ms. Ferris was
comfortable with her presentation and self-identification as a
woman on the job and elsewhere. She had no reason to believe that
anyone else felt otherwise about her.

[25] Unfortunately, someone did. Unbeknownst to Ms. Ferris,
shortly before May 1995, someone complained to the company about
Ms. Ferris’s use of the women’s washroom. On May 1, Sig Weber,
the company’s General Manager, telephoned Mr. Bjarnasen to tell
him about the complaint. Mr. Bjarnasen testified that Mr. Weber
told him that a complaint had been made about “a man using the
women’s washroom” and that he identified Ms. Ferris as the
subject of the complaint. Mr. Weber did not reveal, and Mr.
Bjarnasen did not ask, the identity of the person who made the
complaint. Mr. Weber advised Mr. Bjarnasen that he was calling a
meeting on May 15 to discuss the issue. Mr. Weber told Mr.
Bjarnasen that he considered the issue “sensitive” and that it
was necessary to find an “accommodation.” He advised Mr.
Bjarnasen that the company was seeking legal advice, and
suggested that the Union might also want to consult its lawyer.

[26] Mr. Bjarnasen testified that he gave some thought about how
to approach the issue. He said he considered the matter a
sensitive one. He sought advice from the Union’s lawyer. He
testified that he had known that Ms. Ferris was a transsexual, so
that was not a surprise to him, but that he had never had to deal
with such an issue before.

[27] Mr. Bjarnasen testified that he also considered what to do
about the meeting. He said he was concerned that Ms. Ferris’s
shop steward, John Bulmer, might not be the best person to
represent her interests at the meeting, because of his previous
comment about her gender. Mr. Bjarnasen also felt that it might
be difficult for Ms. Ferris to discuss such a sensitive issue
without another woman present. Accordingly, he decided to ask
Betty Lambert, the shop steward for the “wicket,” to attend the
meeting to represent Ms. Ferris.

[28] In cross-examination, Mr. Bjarnasen agreed that it would
have been inappropriate for Ms. Lambert to attend the meeting as
Ms. Ferris’s representative if she had made the complaint about
Ms. Ferris’s use of the women’s washroom. However, he did not ask
Ms. Lambert whether she had made the complaint, although he knew
she worked in the wicket and used the first floor women’s
washroom. He also acknowledged that he was aware that Ms. Lambert
“doesn’t get along with most people” when he was asked whether he
was aware that Ms. Lambert disliked the complainant.

[29] Mr. Bjarnasen made no attempt to contact Ms. Ferris during
the two weeks preceding the May 15 meeting. He said it did not
occur to him to talk to Ms. Ferris about who she would feel most
comfortable with as her representative at the meeting. Nor did it
occur to him to discuss with her how the Union ought to respond
to management with respect to the complaint about her washroom
use.

[30] On May 15, Mr. Bjarnasen, Ms. Lambert and Mr. Weber met.
They attended to another item of business and then addressed the
washroom complaint. Mr. Bjarnasen testified that everyone was
surprised that Ms. Ferris was not present. He said they waited
for half an hour for her and that, during the entire time, no one
commented on the possible reason for her absence or sought to
clarify who had informed Ms. Ferris about the meeting.

[31] Mr. Bjarnasen said Mr. Weber was angry about the
complainant’s absence after half an hour, and decided to proceed
without her. He said that management had decided to offer Ms.
Ferris two options with respect to her use of the women’s
washroom. First, she could knock on the door and announce herself
before entering. Alternatively, she could request that a key
system be implemented, whereby anyone wanting to use the women’s
washroom would have to open it with a key. Once inside, the
person could lock the door.

[32] Mr. Bjarnasen said Mr. Weber did not disclose the identity
of the person who had made the complaint at the meeting. He was
not sure whether Mr. Weber had investigated the complaint. He
testified that he still doesn’t know who it was. However, on
cross-examination, he admitted that he had read the Investigation
Report, which states that Ms. Lambert told the investigating
officer that she had made the complaint.

[33] At the close of the meeting, Mr. Weber asked Mr. Bjarnasen
to relay management’s two options for use of the washroom to Ms.
Ferris and he agreed to do so.

[34] Mr. Bjarnasen did nothing. Although he had yet to make any
contact with the complainant on the issue, and had been surprised
by her absence at the meeting, Mr. Bjarnasen said he just did not
get around to calling Ms. Ferris. In fact, they only spoke when
she telephoned him on May 25.

[35] Mr. Bjarnasen maintained that the Union was doing its best
to represent the complainant, consistent with its duty to
represent the unknown person who had made the complaint about Ms.
Ferris. He did not explain the basis for his assumption that the
Union represented the unknown person.

Events of May 24 and 25

[36] On May 24, shortly after Ms. Ferris arrived for her shift,
Mr. Bryant dropped an envelope on her desk. When she was free,
she opened it. It contained a formal letter of reprimand from Mr.
Weber, on behalf of the company, for her failure to attend the
May 15 meeting (Exhibit 4). The letter said:

You had made an appointment with the undersigned, your Union
Steward and the Business Representative of the [Union] on Mon.
May 15th at 10 AM.

You did not show up nor did you advise any of the above-mentioned
that you would not. You have inconvenienced all three of us and I
can assure you that all three of us had other items to attend and
could not because we were waiting for you.

I have been waiting for an explanation or an apology for whatever
happened and have not received same.

In view of the above I have no alternative but to place this
letter of reprimand on your personal file.

[37] Ms. Ferris was surprised and very upset. She telephoned Mr.
Weber immediately. She told Mr. Weber she hadn’t known about the
meeting; he insisted that she had. During this conversation, Ms.
Ferris learned for the first time about the complaint about her
use of the women’s washroom. Mr. Weber did not tell her who had
made the complaint. Ms. Ferris was angry, anxious and distressed.
She said she was shaking and crying. She and Mr. Weber talked for
some time. The conversation was heated. Among other things, Ms.
Ferris threatened to sue the company and to file a human rights
complaint. It is not clear how the conversation ended.

[38] Immediately after her telephone call with Mr. Weber, Ms.
Ferris wrote out a note resigning from her employment (Exhibit
5). It was addressed to Mr. Weber and Mr. Bryant and stated:

I Leslie Ferris on May 23/95 resign from Beach Place Ventures
Dispatch office. I feel that for my own personal mental situation
it is the best thing. Also having a talk about the letter of
grievance I received with the manager. Its [sic] in my best
interest.

[39] Ms. Ferris acknowledged that she recorded the date
incorrectly as May 23 rather than May 24. She testified that she
gave the note to Mr. Bryant and left without speaking to him.

[40] Ms. Ferris testified that she went straight home. The next
morning, she received a call from Gail Beeman, a friend at work.
Ms. Ferris testified that Ms. Beeman told her that Ms. Lambert
was telling everyone that Ms. Ferris and Mr. Weber had argued,
and that there was a grievance concerning Ms. Ferris’s use of the
women’s washroom. When Ms. Ferris told Ms. Beeman that she had
quit her job, Ms. Beeman urged her to retract her resignation and
suggested she contact Mr. Bjarnasen at the Union.

[41] The respondent objected to this evidence as hearsay. I
admitted it. However, I said I would consider what weight to give
it. In my view, the complainant’s evidence about what Ms. Beeman
told her Ms. Lambert said adds nothing to the complaint and I
place no weight on it. With respect to Ms. Ferris’s evidence of
Ms. Beeman’s advice to her about her resignation, it is not
disputed that Ms. Ferris contacted Mr. Bjarnasen that day to
discuss retracting her resignation.

[42] Ms. Ferris called Mr. Bjarnasen at the Union office on May
25. He acknowledged, in his testimony, that this was their first
contact over the matters in issue in this complaint. Ms. Ferris
testified that she told Mr. Bjarnasen about the reprimand she had
received and her resignation. She said she wanted to retract it.
Mr. Bjarnasen testified that he was very surprised by the
reprimand, especially when the complainant told him she had not
known about the meeting. He advised Ms. Ferris to write a letter
of retraction and to give it to the company within twenty-four
hours, with a copy to the Union. Mr. Bjarnasen testified that he
might have outlined the two options Mr. Weber had proposed for
use of the female washroom during this conversation. Ms. Ferris
had no recollection that he had done so.

[43] Ms. Ferris also testified that she received a letter from
Mr. Weber on May 25 accepting her resignation (Exhibit 6).

[44] With the help of a friend, Ms. Ferris wrote a letter
retracting her resignation and sent it to the company and Union
on May 25 (Exhibit 7). Although she was scheduled to start work
at 5:00 p.m. that day, Ms. Ferris said she did not go to work
because she understood Mr. Weber had accepted her resignation.

[45] Ms. Ferris testified that she wrote another letter to Mr.
Weber on May 25, also with the help of a friend, asking him to
remove the letter of reprimand from her file (Exhibit 8). In this
letter, Ms. Ferris stated that she had been unaware of the May 15
meeting. She requested that the reprimand be removed from her
file and “that we work together to resolve the issue.” A copy of
this letter was faxed to Mr. Bjarnasen.

Events Following May 25

[46] The complainant initially testified that she had no further
contact with the company or with Mr. Bjarnasen until May 31.
However, when it was put to her, she acknowledged receiving a
letter from Mr. Weber on May 26 (Exhibit 9). She also agreed with
the statements made in the letter that Mr. Weber had urged her
not to resign during their conversation on May 24, and that she
had spoken to Mr. Bryant on the evening of May 24 who had also
urged her not to make a hasty decision. In cross-examination,
however, Ms. Ferris reiterated her initial testimony that she did
not speak to Mr. Bryant that night. The last paragraphs of Mr.
Weber’s letter state:

At this stage, we have already filled your position until the
time of the next shift bid – which is within the next week or so
– hence the haste to replace you for the short period of time of
the old shift bid which expires at the end of June, 1995.

I would like to discuss these matters with you in the presence of
Paul [Bjarnasen] and your steward as soon as possible. Please
give Paul a call so we can set a date and time that is convenient
to all of us.

[47] Ms. Ferris testified that she took this passage to mean that
she had been replaced and would not work again until the end of
June. She also said that she believed that she no longer had a
job with the company and that, if she wanted a job, she had to go
to a meeting with Mr. Bjarnasen and others to clear things up and
await the next shift bid.

[48] Ms. Ferris explained that shift bids are conducted twice a
year. At those times, people sign up in order of seniority for
the shifts for each position.

[49] It appears that nothing further happened until the following
Wednesday, May 31, when Ms. Ferris received another letter from
Mr. Weber (Exhibit 10). The complainant had difficulty
recollecting this letter. It stated that the letter of reprimand
had been removed from Ms. Ferris’s file. The letter also said,
with respect to the complainant’s resignation, that Mr. Weber had
written to Mr. Bjarnasen to request a meeting to discuss the
situation. Mr. Weber concluded his letter by saying, “The last
thing I want would be that you would feel that you were taken
advantage of and therefore the meeting as requested is
essential.”

[50] Mr. Bjarnasen said he spoke with Mr. Weber on June 2 and
arranged for Ms. Ferris to return to work. Mr. Bjarnasen and Ms.
Ferris agree that he called her that afternoon and told her that
he had spoken with Mr. Weber and that she could return to work.
The only question was the timing of her return. Mr. Bjarnasen
testified that he thought Mr. Weber was going to speak to Mr.
Bryant about the timing, since that decision was really Mr.
Bryant’§He said the two return dates mentioned were June 4 or
June 6. Mr. Bjarnasen’s and Ms. Ferris’s evidence diverged as to
whether Ms. Ferris was to call Mr. Bryant or wait for him to call
her, but they agreed that it was up to Mr. Bryant to schedule her
return. Mr. Bjarnasen also told Ms. Ferris that he would set up a
meeting on June 6 for himself, Ms. Ferris and Mr. Weber to
discuss the situation.

[51] Ms. Ferris testified that, when she had not heard from Mr.
Bryant by about 8:00 p.m. on the evening of June 2, she called
him. She said Mr. Bryant told her he knew nothing about her
returning to work. The complainant said that after her
conversation with Mr. Bryant, it was too late in the day to try
to reach Mr. Bjarnasen.

[52] Over the weekend, Ms. Ferris became very depressed and, on
Monday, June 5, she was admitted to hospital.

[53] Ms. Ferris has a history of depression. She was diagnosed as
bipolar in 1983 and has been on medication since then. This
condition sometimes requires her to take time off work. For
example, she testified that she was off work for this reason for
about a week in March. She was also away from work from May
13–21, although it is not clear whether this was due to
depression. Ms. Ferris said she has been hospitalized for
depression previously.

[54] Ms. Ferris testified that she remained in hospital for two
weeks. However, her counsellor’s letter (Exhibit 16) shows that
she was actually hospitalized for one week, from June 5–12.

[55] Ms. Ferris and Mr. Bjarnasen agree that she telephoned him
from the hospital on June 5 to tell him where she was and that
she would not be able to go to the meeting with Mr. Weber on June
6. Mr. Bjarnasen testified that he thought he passed this message
on to Mr. Weber. Ms. Ferris testified that she told Mr. Bjarnasen
about her conversation with Mr. Bryant and his statement that he
knew nothing about her returning to work. She testified that Mr.
Bjarnasen told her he would get back to her.

[56] The complainant testified that she did not hear from Mr.
Bjarnasen for some time. She said she never received anything in
writing confirming that she could return to work.

[57] The complainant testified that she next spoke to Mr.
Bjarnasen in late June or early July. In late June, she contacted
the company to request a Record of Employment so that she could
receive “UI Sick Benefits.” She testified that she was receiving
emergency social assistance at the time. The date on the Record
of Employment (Exhibit 11) shows that it was issued on June 28,
1995.

[58] The complainant testified that, as of the end of June, she
felt she had no job and no contact with the Union. Initially, she
could not recall asking the Union to pursue a grievance on her
behalf. However, when shown a letter to Mr. Bjarnasen signed by
herself and dated June 30, she recalled that a friend had helped
her write it.

[59] The June 30 letter is five pages long. It comprehensively
sets out the complainant’s concerns. Under the heading,
“Employment Status,” the letter requests clarification of Ms.
Ferris’s employment status with the company in light of the
ignorance Mr. Bryant had expressed about her return. With respect
to the washroom complaint, the letter expresses concern about how
the person who complained learned about Ms. Ferris’s gender
status, and queries whether there were documents relating to her
gender in her personnel file that were improperly handled. It
states the complainant’s position that the complaint about her
and the ongoing failure to resolve it are instances of sexual
harassment.

[60] The letter describes the mental and financial stress Ms.
Ferris has suffered. It requests the Union to initiate a
grievance on her behalf against the company for sexual and
personal harassment. The letter also states that, in light of
what has happened, it is not possible for Ms. Ferris to return to
work. Therefore, it proposes that the Union negotiate a
settlement between Ms. Ferris and the company.

[61] The letter concludes by requesting Mr. Bjarnasen to comment
on its proposals and to meet with him to plan an approach to
management. It expresses gratitude for his previous assistance.
In cross-examination, Ms. Ferris agreed that she was grateful to
Mr. Bjarnasen for his help.

[62] Ms. Ferris did not attend the shift bid at the end of June.

The Letter of July 5

[63] Ms. Ferris could not recall whether she received a response
to her letter of June 30. However, she recognized Mr. Bjarnasen’s
letter of July 5 when it was shown to her. In its entirety, it
reads as follows (I have numbered the paragraphs for ease of
reference):

Dear Sister Ferris;

(1) The Union is in receipt of your letter of June 30, 1995.

(2) From a discussion with Mr. Weber on Thursday or Friday last
week I thought you had quit again. If, however, you had only
asked for a record of employment for U.I. Sick Benefits then
presumably you are still an employee.

(3) The Company did accept your recision [sic] of your
resignation in May on the basis that you would give adequate
notice and return to your regular shift. There always was some
confusion about whether it should be on the first shift in the
calendar week or the first shift of your regular work week, June
4 and June 7 respectively. Other than scheduling the job was
yours.

(4) Your hospitalization was an inconvenience to the Company but
does not yet seem to have resulted in any discipline despite your
failure to notify them.

(5) We do not know who started the rumour but in your recent
telephone call you stated that you were physically if not
hormonally a man. Ergo, their concern about the use of the
women’s washroom seems valid.

(6) The Employer’s response was to accommodate both you and the
others. Specifically, you would continue to use the women’s
washroom but would knock and announce yourself. If someone
objected, you would wait until they left. If this is not
acceptable the Union can request that everyone use the key and
lock the door.

(7) In the meeting with Mr. Weber to resolve this issue, no
personal documents were either produced or mentioned. Those
present were Mr. Weber for the Company, and Betty Lambert, a
Steward, and Paul Bjarnasen, a Business Representative for the
Union. Any breach of confidentiality, if indeed there was any, is
restricted to informing people of the new policy in order to
accomplish the accommodation. Because you have not yet returned
to work there has been no need to inform anyone yet.

(8) You ask three questions. The Union’s answer in general terms
is to get a medical opinion as to when you can return to work,
and to inform the Company and to return to work on that date.

(9) The Union has sought legal advice and is of the belief that
the Employer has dealt with the whole issue in a fair and
non-discriminatory manner. We will not be supporting a grievance.

(10) You also request a financial package. You quit. The Union
got you your job back but there have to be consequences for your
action and the loss of pay from the time that you quit until June
4 or 7 did not seem unreasonable. Any subsequent loss of pay has
been due either to your actions or illness.

(11) If you have a legitimate illness, as is indicated by your
hospitalization, then why did you not apply for wage indemnity.
The collective Agreement provides for a wage indemnity plan
providing 75% of wages from the first day for a maximum of
thirty-nine weeks – Article 10, Section 3 and Appendix “B.”

(12) Lastly, you ask for a letter of reference and a limitation
of reference to the whole “Complaint/harassment” issue. If you
are willing to have the Union negotiate the requested items in
exchange for a voluntary but negotiated separation and an
agreement that there are no further claims against the company I
think we can accomplish these four goals.

[64] Both Ms. Ferris and Mr. Bjarnasen testified about the
meaning of various paragraphs of this letter.

[65] In cross-examination, Mr. Bjarnasen admitted that para. (3)
was sloppy and inaccurate. He testified that what he had meant to
say was that Ms. Ferris should have given the company notice of
intent to return to work after she was released from hospital,
not that “adequate notice” had been required in May. Mr.
Bjarnasen also admitted that it was reasonable for the
complainant to be uncertain about her job status in late June.

[66] Ms. Ferris’s testimony about her understanding of this
paragraph was confused. She appeared to say that she understood
the third paragraph as confirming that she was still employed by
the company, subject to scheduling her date of return and
resolving the washroom issue. However, she also stated at a
number of points in her testimony that she never felt she had a
job after June 2.

[67] With respect to the reference in para. (4) to the
complainant’s failure to notify the company of her
hospitalization, Mr. Bjarnasen agreed that he assumed that this
was the company’s position. He said that he could not remember
whether he passed on the message that the complainant was
hospitalized to Mr. Weber, as the complainant had requested, or
whether he had told her to call Mr. Weber herself. The
complainant said that she assumed from her conversation with Mr.
Bjarnasen on June 5 that he would pass on the message to Mr.
Weber.

[68] With respect to para. (5), Ms. Ferris acknowledged in her
testimony that she had explained her gender status in some detail
to Mr. Bjarnasen, in the context of a discussion about the
complaint about her use of the washroom. However, she did not
recall making the comment attributed to her in this paragraph.
Mr. Bjarnasen maintained that this is what Ms. Ferris told him,
although he agreed it was said in the context of discussing the
washroom complaint. He stood by his statement in para. (5) that
there was some legitimacy to the complaint about Ms. Ferris.

[69] With respect to the “accommodation” proposal in para. (6) of
the letter, Ms. Ferris testified that she had previously told Mr.
Bjarnasen that only one person could use the washroom at a time,
as there was a key system in place. Therefore, the “knocking and
announcing” proposal made no sense. As I have said elsewhere, Mr.
Bjarnasen testified that the washrooms were not locked. Mr.
Bjarnasen testified that he considered “knocking and announcing”
to be a reasonable proposal. I also note that, in this paragraph,
Mr. Bjarnasen has presented only one of the two options outlined
by Mr. Weber at the May 5 meeting. The other option is presented
as an alternative that the Union might propose, not one the
company had already suggested.

[70] With respect to para. (10), Mr. Bjarnasen testified that he
considered Ms. Ferris’s initial resignation unreasonable. In his
view, the loss of pay that followed her resignation was a
reasonable consequence of it, despite the role that the company
and the Union played in the misunderstanding that led to the
reprimand and the resignation. Mr. Bjarnasen said that he did not
intend this paragraph to sound punitive. His statement that the
complainant’s actions or illness had caused her subsequent loss
of pay was intended to refer to Ms. Ferris’s failure to contact
Mr. Bryant to ensure that she could participate in the shift bid.
In his opinion, the complainant should have known she still had a
job and should have taken steps to resume a shift. This conflicts
with his testimony that the complainant’s uncertainty about her
job status was reasonable.

[71] Ms. Ferris defended her initial resignation in response to
the reprimand. When asked about the reasonableness of losing pay
as a result, her answers were confused. She agreed that the loss
of pay was reasonable, yet maintained that it was not fair.

[72] Ms. Ferris understood the Union to be saying, in para. (9),
that it would not help her with a grievance or with the financial
settlement she had outlined. She believed it was willing to
assist in the manner specified in para. (12).

[73] With respect to the wage indemnity benefit mentioned in
para. (11), Ms. Ferris said she had not known she could apply for
wage indemnity. In fact, as Mr. Bjarnasen clarified in his
evidence, this benefit was not available, and his letter was
mistaken in this regard. However, it appears Ms. Ferris did ask
Mr. Weber about wage indemnity after receiving Mr. Bjarnasen’s
letter, since he wrote to her to confirm her ineligibility
(Exhibit 14).

[74] Ms. Ferris testified that after she received Mr. Bjarnasen’s
letter of July 5 she felt she did not have a job with the
company. This conflicts with her evidence that she understood
para. (3) of the July 5 letter to say that she was still
employed. Ms. Ferris said she asked the Union to assist her in
getting letters of reference mentioned in para. (12), but nothing
happened.

[75] On August 24, the complainant received a letter from Mr.
Weber in response to an enquiry she had made about the wage
indemnity plan. The letter clarifies that the benefit is not
available to Ms. Ferris. It also states that “we have not heard
from you and were in the opinion that you have abandoned your
position.”

[76] Ms. Ferris did not return to work. She testified that she
made a human rights complaint against the company and the Union
towards the end of August. She received assistance with her
complaint from the B.C. Human Rights Coalition.

[77] Ms. Ferris testified that her last contact with the company
was at the end of June 1995, when she received the Record of
Employment she had requested. She said no one from the company or
the Union has ever apologized to her.

ANALYSIS

[78] Sections 13 and 14 of the Code provide as follows:

13(1) A person must not

(b) discriminate against a person regarding employment or any
term or condition of employment,

because of the ... physical or mental disability [or] sex ... of
that person ...

14. A trade union, employers’ organization or occupational
association must not

(c) discriminate against any person or member

because of the ... physical or mental disability [or] sex ... of
that person ...

[79] When an allegation of discrimination is made against a union
in an organized workplace, a union may be found liable under §13
or §14, or both. For example, if the union negotiates a provision
in a collective agreement that has a discriminatory effect on the
complainant or impedes the reasonable efforts of an employer to
fulfil its duty to accommodate a complainant, it will contravene
§13 of the Code but not §14: Central Okanagan School District No.
23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.). If the union
discriminates against a member with respect to the internal
operation of the union in a manner that does not extend to the
relationship with the external employer, then it will contravene
only §14: Renaud v. School District No. 23 (Central Okanagan)
(1987), 8 C.H.R.R. D/4255 at D/4258 (B.C.C.H.R.).

[80] Generally, §13 is engaged where a union discriminates
against a member in a manner that touches on the employment
relationship between the member and the employer. Where the union
discriminates against a member as a member rather than as an
employee, §14 will apply. The two provisions are not mutually
exclusive. For example, where a union discriminates in its
representation of a member in respect of an issue arising from
the member’s employment, both ss. 13 and 14 may be contravened.

[81] In the present case, the complaint alleges that the Union
discriminated against Ms. Ferris in the way it responded to the
company’s handling of the complaint about her use of the women’s
washroom and the events that flowed from it. This allegation
encompasses both §13 and §14, because it challenges both the
adequacy of the Union’s representation of the complainant as a
member, and its role in a series of events that affected the
complainant’s employment.

[82] The complaint alleges both sex and physical disability as
grounds of discrimination. Counsel for the complainant did not
distinguish between these grounds in her submissions. She simply
referred to this Tribunal’s decision in Sheridan v. Sanctuary
Investments Ltd. (No. 3) (1999), 33 C.H.R.R. D/467 (B.C.Trib.) as
establishing that discrimination against a person because they
are transsexual is discrimination on the basis of both sex and
disability. In its submissions, the Union did not dispute that
the grounds of sex and/or physical disability encompass
discrimination against a person because they are transsexual. Nor
did it dispute that the Ms. Ferris is a transsexual.

[83] In my recent decision in Mamela v. Vancouver Lesbian
Connection (8 September 1999) [reported 36 C.H.R.R. D/318], I
considered whether discrimination against a person as a
transsexual is discrimination of the basis of sex in
circumstances where the complainant alleged sex discrimination
but not discrimination because of physical disability. I reviewed
Tribunal Member Humphreys’ reasoning in Sheridan as follows [at
p. D/327, §§92–94]:

... Tribunal Member Humphreys found that discrimination against a
transsexual constitutes discrimination because of sex. She also
found that, based on medical evidence before her, including that
the complainant was a transsexual in transition from male to
female at the relevant time, there was discrimination because of
physical or mental disability.

In arriving at her conclusion with respect to the ground of sex
discrimination, Member Humphreys referred to a number of
decisions in other jurisdictions that have recognized
discrimination because a person is transsexual as a form of sex
discrimination (at D/474–D/475). She stated (at D/475):

In my view, given the large and liberal interpretation which the
Supreme Court of Canada has emphasized must be applied to human
rights legislation, I am satisfied that discrimination against a
transsexual constitutes discrimination on the basis of sex.
Whether the discrimination is regarded as differential treatment
because the transsexual falls outside the traditional man/woman
dichotomy (as in P. v. S., supra) or because male-to-female
transsexuals are regarded as a sub-group of females (and vice
versa) (as in Maffei, supra), the result is the same:
transsexuals experience discrimination because of the lack of
congruence between the criteria which determine sex.

In the present case, the complainant has not alleged mental or
physical disability as a ground of discrimination. I agree with
the reasoning in Sheridan that discrimination against a person
who is transsexual can be a form of sex discrimination.

[84] The Deputy Chief Commissioner submitted that discrimination
against a person because they are transsexual, at least in
circumstances similar to those in the present case, should be
considered as discrimination on the basis of sex and not as
discrimination on the basis of physical disability. Counsel for
the Deputy Chief Commissioner argued that treating discrimination
because a person is a transsexual as a form of sex discrimination
rather than as a form of discrimination on the basis of
disability is necessary to promote the dignity of transsexual and
transgendered persons. In particular, counsel submitted that
transgendered persons who do not experience a conflict between
the physiological and the psychological aspects of their gender
and who do not seek medical treatment might not be protected
under the ground of disability. The Deputy Chief Commissioner
made no other submissions and took no position on the merits of
the complaint.

[85] I have difficulty accepting the proposition that recognizing
discrimination because of transgendered status as discrimination
on the basis of physical disability is somehow less dignified
than recognizing it as discrimination on the basis of sex. Ms.
Ferris has identified herself as a transsexual and has alleged
discrimination on the grounds of both sex and disability. The
respondent has not disputed that transsexuals are protected under
either ground or that Ms. Ferris is a transsexual. Therefore, I
leave determination of the scope of the ground of physical
disability in relation to transsexual or transgendered people to
a case where it is necessary to decide it. I am satisfied, on the
evidence before me and in light of the Tribunal’s decisions in
Sheridan and Mamela, that if the complainant can establish that
she suffered discrimination because she is transsexual, both the
grounds of sex and physical disability apply.

[86] In order to succeed in her complaint, Ms. Ferris must show
that it is more likely than not that she was treated adversely
compared to other Union members and that her transsexualism was a
factor in the adverse treatment. Counsel for the complainant
argued that the complainant had led sufficient evidence to
establish a prima facie case of discrimination. A prima facie
case of discrimination is one which covers the allegations made
and which, if believed, is complete and sufficient to justify a
finding in the complainant’s favour, absent an explanation from
the respondent: O’Malley v. Simpsons-Sears Ltd. (1985), 7
C.H.R.R. D/3102 at D/3108 (S.C.C.). Béatrice Vizkelety has
written, in Proving Discrimination in Canada (Toronto: Carswell,
1987) at pp. 109–10, that a prima facie case is made out when:

... a party’s case has been taken out of the realm of conjecture
and that “his evidence in support of an issue is sufficiently
weighty to entitle a reasonable man to decide the issue in his
favour, although, as a matter of common sense, he is not obliged
to do so.”

[87] The Union argued that the complaint could not succeed
because the complainant led no direct evidence to establish that
the Union treated her worse than others because she is
transsexual. However, direct evidence is not necessary to
establish a prima facie case or to find a complaint justified.
Rather, human rights tribunals have recognized that:

... discrimination often does not occur through direct,
unequivocal acts, but must be inferred from circumstantial
evidence. Accordingly ... it is often relatively easy for a
complainant to make out a prima facie case, i.e., persuade the
Tribunal that the respondent has engaged in conduct that requires
an explanation.

See Shields v. Cameron (1993), 20 C.H.R.R. D/222 at D/227 [§42]
(B.C.C.H.R.), quoted in Seignoret v. B.C. Rehabilitation Society
(No. 2) unreported (18 March 1999) [C.H.R.R. NP/99-075]
B.C.Trib.; see also Basi v. Canadian National Railway Co. (No. 1)
(1988), 9 C.H.R.R. D/5029 at D/5038 (Can.Trib.).

[88] In the present case, Ms. Ferris has established a prima
facie case of discrimination if she has led evidence from which
it is reasonable to infer that the Union treated her worse than
it would have treated other Union members and that her
transsexualism was a factor in the adverse treatment. If so, the
evidential burden will move to the Union to provide an
explanation for its conduct. I must then weigh the evidence
provided by both parties in order to determine whether it is more
probable than not that the Union treated Ms. Ferris adversely and
that her transsexualism was a factor (but not necessarily a
primary or overriding factor) in the treatment.

[89] I have no difficulty finding that the complainant has
established a prima facie case of discrimination.

[90] Mr. Weber called Mr. Bjarnasen on May 1 to tell him that a
complaint had been made about Ms. Ferris’s use of the women’s
washroom. Mr. Bjarnasen said he gave the matter considerable
thought: he spoke with the Union’s lawyer, he thought about who
should represent the complainant at the meeting and decided not
to call on Mr. Bulmer, who was her shop steward, but to
substitute Betty Lambert, a female shop steward. The person Mr.
Bjarnasen selected to represent Ms. Ferris was a woman he knew
did not get along with others and who used the same washroom as
the complainant. Given the small number of people who used that
washroom, it should have occurred to Mr. Bjarnasen that Ms.
Lambert might have been the source of the complaint.

[91] Even if Mr. Bjarnasen thought he was acting in the
complainant’s best interests in preparing for the meeting, it is
very hard to believe that it did not occur to him to contact her
to discuss the issue at any point in the two weeks prior to the
meeting. By his own testimony, Mr. Bjarnasen recognized the issue
as sensitive, so sensitive that he thought Ms. Lambert should be
present but did not think to solicit the complainant’s input.
Nor, for that matter, did it occur to Mr. Bjarnasen to make any
enquiries about the identity of the person who had complained
about Ms. Ferris or inform himself about how persons gained
access to the washroom in issue, although he knew that
“accommodation” options would be discussed.

[92] I cannot accept that Mr. Bjarnasen, Ms. Lambert, and Mr.
Weber would have waited for half an hour for Ms. Ferris to appear
at the meeting on May 15 without anyone asking even once where
Ms. Ferris was or who had told her about the meeting. If, as Mr.
Bjarnasen testified, Mr. Weber was visibly angered by Ms.
Ferris’s absence and the Union was truly representing Ms.
Ferris’s interests, it is beyond belief that neither Mr.
Bjarnasen nor Ms. Lambert would have confirmed that Ms. Ferris
had been told about the meeting or made some effort to contact
her.

[93] Further, having allowed the meeting to proceed despite Ms.
Ferris’s unexplained absence, and having agreed to communicate
management’s two “accommodation” proposals to her, Mr.
Bjarnasen’s failure to make any attempt to contact Ms. Ferris
after the meeting is inexplicable. They only spoke when Ms.
Ferris telephoned Mr. Bjarnasen on May 25, after she had been
reprimanded and had resigned.

[94] Quite apart from the events that followed, I find that Mr.
Bjarnasen’s own description of his conduct on behalf of the Union
during the period from May 1 to 24 departed so far from even a
minimal standard of responsibility of a union to its members in
relation to an incident arising in the workplace that it suggests
that Ms. Ferris’s transsexualism was a factor in the Union’s
treatment of her. Specifically, in the absence of sufficient
explanation, it is reasonable to infer that Ms. Ferris’s
transsexual status was a factor in Mr. Bjarnasen’s failure to
contact her. I am also prepared to infer, in the absence of any
explanation, that it was not the Union’s normal practice to
utterly fail to communicate with one of its members about a
sensitive incident in the workplace that management had called a
meeting to discuss. Thus, the complainant has led evidence from
which it is reasonable to infer that she was treated differently
than other Union members and that her transsexualism was a factor
in the adverse treatment. The evidential burden falls on the
Union to provide an explanation.

[95] The Union led no relevant evidence concerning its usual
practices in responding to management-initiated meetings arising
from complaints about employees. Nor did it offer any real
explanation for Mr. Bjarnasen’s actions. Indeed, in relating his
actions between May 1 and 25, Mr. Bjarnasen testified that he had
acted with the complainant’s best interests in mind. As I
understood his submissions, the Union’s agent asserted that there
was no evidence that Mr. Bjarnasen was more sensitive to anyone
else than he was to the complainant. He said that the complainant
was seeking a standard of perfection from the Union that does not
exist “in the real world.” This submission does not displace the
prima facie case of discrimination made out by the complainant.

[96] The Union also relied on Ms. Ferris’s evidence that she
expressed gratitude, in her letter of June 30, to Mr. Bjarnasen
for his previous assistance to her. This does not excuse his
conduct or preclude a finding that it was discriminatory.

[97] The Union also points to the fact the Mr. Bjarnasen helped
the complainant get her job back in late May, scheduled a meeting
with Mr. Weber for June 6 and cancelled it at the complainant’s
request. I accept that Mr. Bjarnasen provided this assistance to
Ms. Ferris. Again, however, this is no answer to the prima facie
case of discrimination that has been established.

[98] Turning to Mr. Bjarnasen’s letter of July 5, the Union
disputes the complainant’s characterization of this letter as
punitive in tone. In my view, both in tone and content, this
letter departs markedly from a reasonable response by a union to
the sorts of queries made in the complainant’s letter of June 30.

[99] The letter is glib and dismissive of the complainant’s
reasonable questions about her employment status. Paragraph (2)
gratuitously suggests Ms. Ferris may have “quit again” and then
states that “presumably” she is still an employee. Paragraph (3)
says that the job was available to Ms. Ferris, but that she
failed to act appropriately in returning to work.

[100] The letter also suggests that any harm Ms. Ferris has
suffered is her own fault – in not successfully negotiating her
return to work in early June, in failing to notify the company of
her hospitalization and “inconveniencing” her employer, in
continuing to fail to return to work, by unreasonably quitting on
May 25, and in failing to apply for a wage indemnity benefit.

[101] However, Mr. Bjarnasen admitted that it was reasonable for
Ms. Ferris to be confused about her job status in late June, that
she had asked him to tell Mr. Weber that she could not attend the
meeting on June 6 when she called Mr. Bjarnasen from the
hospital, and that the wage indemnity benefit was not in fact
available to her.

[102] Paragraph (5) of the letter refers to a statement Ms.
Ferris allegedly made about her gender and states that the
employer’s “concern about the use of the women’s washroom seems
valid.” In argument, the Union’s agent emphasized that “seems
valid” does not mean that the Union was taking the position that
the complaint was valid. In my view, in the context of the rest
of the letter, and in the Union’s failure to communicate with the
complainant before May 15 or to take responsibility for the
wrongful reprimand, Ms. Ferris could reasonably interpret the
Union to be saying that the complaint about her had merit.

[103] In conclusion, considering all of the evidence before me, I
find that it is more probable than not that the alleged
discrimination occurred. I am satisfied that the complainant has
established a prima facie case and that the Union has not led
evidence sufficient to rebut the inference of discrimination. I
find that it is reasonable to infer that the Union treated the
complainant worse than it would have treated another Union member
in similar circumstances and that her status as a transsexual was
a factor in her treatment. For these reasons, I find both the §13
complaint and the §14 complaint justified on the ground of
physical disability as well as sex. It remains to consider the
appropriate remedy.

[104] The complainant seeks an award of compensation for lost
wages for the “two-week period from May 24 to June 4” between the
unwarranted reprimand and the first day the Union told her she
could have returned to work.

[105] In my view, this award is appropriate. The complainant’s
resignation was an understandable response to the dual shock of
the unwarranted reprimand and finding out that her identity as a
woman had been challenged and discussed in the manner Mr. Weber
related to her in their conversation on May 24. Neither of these
things would have happened, and there would have been no need for
Ms. Ferris to react as she did, but for the Union’s failure to
communicate with her. I am therefore prepared to make this award.

[106] In calculating the amount to be paid, the evidence
establishes that Ms. Ferris was paid $12.51 per hour, based on a
forty-hour shift. The Union does not dispute this amount. I note
that the period in question is twelve days, not two weeks, long.
The evidence does not establish whether the complainant would
have worked two full weekly shifts (eighty hours) in this period.
However, as the Union did not take issue with an award of two
weeks wages, I award $1,000.80 in compensation for lost wages.

[107] The complainant does not seek any compensation for lost
wages after this date. Therefore, I need not determine whether it
was reasonable for Ms. Ferris not to participate in the shift bid
at the end of June or to make no attempt to return to work after
the Union confirmed that she was still employed in the letter of
July 5.

[108] Ms. Ferris also seeks an award of $6,500–$7,000 for
compensation for injury to her dignity, feelings and
self-respect. Counsel for the complainant referred to Sheridan,
in which the Tribunal awarded $2,000 to a transsexual complainant
who had been discriminated against at a night club, and Québec
(Comm. des droits de la personne et des droits de la jeunesse) v.
Maison des jeunes À-Ma-Baie Inc. (No 2) (1998), 33 C.H.R.R. D/263
(Trib.Qué.) in which the complainant was awarded $4,000 because
her employment was terminated when she revealed she was
transsexual. In Mamela, I awarded $3,000 to a complainant whose
membership in a lesbian organization had been suspended because
she is transsexual.

[109] Ms. Ferris testified about the severity of the harm she has
suffered. Her mental health has been seriously compromised, to
the point that she believes she is unemployable, she lost a job
with a company she had been associated with for nineteen years,
and her dignity and self-esteem were severely undermined.

[110] The Union argued that $6,500 was far in excess of what the
circumstances warranted. In particular, it submitted that the
complainant’s mental health difficulties pre-dated the
discrimination and were unconnected to it.

[111] In light of all of the circumstances, I award $5,000 to the
complainant as compensation for injury to her dignity, feelings
and self-respect. The complainant led no independent evidence to
establish that she is unemployable. However, I have no reason to
doubt her evidence that she has not been employed since she left
the company. Although she had a pre-existing mental health
condition, it was clearly manageable and did not unduly interfere
with her work, since she had been a taxi driver and then a
call-taker for over nineteen years. I have no doubt that the
reprimand on May 24, the challenge to her gender identity in the
form of the washroom complaint, the failure to resolve that
complaint, and the ongoing uncertainty about her employment
status adversely affected Ms. Ferris’s mental health both then
and afterwards.

[112] In closing, I must note that almost all of the severe
adverse consequences that Ms. Ferris suffered could have been
avoided entirely if Mr. Bjarnasen had simply picked up the
telephone and talked to her directly before the May 15 meeting.
If Ms. Ferris had had an opportunity to discuss the issue with
Mr. Bjarnasen, he would have known that access to the washroom
was already controlled and that “accommodation” was superfluous.
Had they spoken, it is also likely that Ms. Lambert’s presence
would have been unnecessary and that the Union would have made
some effort to investigate or obtain information from the company
about the source of the complaint and the motives of the unknown
complainant. In all probability, Ms. Ferris would still have her
job.

[113] Instead, the Union simply acquiesced in the company’s
treatment of the anonymous complaint as legitimate, and its
implicit characterization of the complainant as a problem who
required some accommodation. Mr. Bjarnasen’s unexplained
inability to simply talk to the complainant has resulted in
considerable damage to her health, finances, dignity and
self-esteem.

[114] In conclusion, I find the complaint justified. Section
37(2)(a) of the Code requires me to order the respondent Union to
cease its contravention of the Code and to refrain from
committing the same or a similar contravention. I so order. I
further order the respondent Union to pay to the complainant the
sum of $1,000.80 in compensation for lost wages and the sum of
$5,000 in compensation for the injury it has done to her dignity,
feelings and self-respect.

^^

BRITISH COLUMBIA
DISABILITY/PUBLIC SERVICES AND FACILITIES
Indexed as: Sheridan v. Sanctuary Investments Ltd. (No. 3)
Cited: (1999), 33 C.H.R.R. D/467 (B.C.H.R.T.) 

Paragraphs 1 – 121
Tawni Sheridan
Complainant
v.
Sanctuary Investments Ltd. doing business as B.J.’s Lounge
Respondent
and
Duputy Chief Commissioner British Columbia Human Rights
Commission
Party
Date of Decision:
January 8, 1999
Before:
British Columbia Human Rights Tribunal, Barbara Humphreys
Appearances by:
Alison Sawyer, Counsel for the Complainant
Stephen Andrew, Counsel for the Respondent
Deirdre Rice, Counsel for the Deputy Chief Commissioner

DISABILITY – discriminatory treatment in the provision of
services on the basis of transsexualism – physical disability
includes transsexualism – SEX DISCRIMINATION – PUBLIC SERVICES
AND FACILITIES – PUBLIC DECENCY – sex discrimination includes
discrimination against transsexuals – washroom facility use
denied – REASONABLE ACCOMMODATION – duty to accommodate short of
undue hardship – washroom facility use – EXEMPTIONS – public
decency

DISCRIMINATION – adverse effect discrimination – government
regulations as reasonable cause for discriminatory action – HUMAN
RIGHTS – nature and purpose of human rights legislation – survey
of human rights law – INTERPRETATION OF STATUTES – definition of
“sex” – plain meaning rule – COMPLAINTS – JURISDICTION –
unreasonable delay in proceeding with complaint – CANADIAN
CHARTER OF RIGHTS AND FREEDOMS – §7 (security of the person) –
EVIDENCE – expert evidence

Summary: The B.C. Human Rights Tribunal finds that B.J.’s Lounge
discriminated against Tawni Sheridan on the basis of sex and
disability by refusing Sheridan, who is a pre-operative male to
female transsexual, the use of the women’s washroom.

B.J.’s Lounge is a licensed video lounge that caters to gay,
lesbian, and transgendered individuals. The Lounge had a policy
requiring men to use the men’s washrooms and women to use the
women’s washrooms. Tawni Sheridan alleged discrimination because
of being refused use of the women’s washroom. The complainant
also alleged discrimination because of being denied entrance to
the bar on an occasion when the identification she presented was
that of a man bearing a man’s name.

Regarding the washroom policy the respondent argues that the
policy of restricting use of the women’s washroom to individuals
who were anatomically women was instituted because of complaints
from female patrons about men using the women’s washroom.
However, upon learning that the medical profession requires
transsexuals to live in the “desired sex” in order to qualify for
gender reassignment surgery, the respondent changed its policy.
The Tribunal notes that the respondent led no evidence to
establish that the use of women’s washrooms by a male-to-female
transsexual interfered with the “maintenance of public decency”
within the meaning of the Code. Regarding the issue of the
identification, the respondent argues that admission was refused
because the complainant did not look like the person depicted on
the identification card.

Relying on medical evidence and medical criteria, the Tribunal
finds that transsexuals experience discrimination because of a
lack of congruence between various criteria that determine sex.
It concludes, therefore, that discrimination against transsexuals
constitutes discrimination because of “sex.” The Tribunal finds
also that discrimination against a preoperative transsexual, as
in this case, constitutes discrimination because of “mental or
physical disability.”

Dr. Robinow, a psychiatrist, testified that the medical criteria
by which individuals are determined to be male or female are:
physical sex; chromosomal sex; subtle differentiations in the
brain; and gender identity, which is the person’s inner
subjective experience of femininity or masculinity.

The psychiatrist also testified that gender dysphoria describes
the condition of people who are unhappy about the incongruence
between their physical sexual identity and their subjectively
experienced gender identity, and that the most distressed of
gender dysphoric people are transsexuals. They have a complete
disassociation between their gender identity and their physical
sexual identity. Medically, transsexuality is considered a
specific illness, and during transition the person is considered
to be the desired sex rather than the physical sex they were born
to, testified Dr. Robinow.

The Tribunal holds that transsexuals in transition who are living
as members of the “desired sex” should be considered to be
members of that sex for the purposes of human rights legislation.
Taking this view, the Tribunal finds that the complainant was a
woman and therefore, her choice of the women’s washroom was
appropriate.

The Tribunal also holds that the respondent’s policy restricting
use of the women’s washroom to women who are anatomically female
is discriminatory based on the grounds of sex and mental or
physical disability. This is characterized by the Tribunal as a
neutral policy, to which the defence of bona fide justification
does not apply.

Tribunal finds that if in the future the respondent needs to make
inquiries about whether an individual is a transsexual in
transition, for purposes of washroom use, such inquiries must be
made in a dignified, non-confrontational manner, keeping in mind
the immediate nature of the service required.

The complaint regarding the issue of the identification fails
because there was a reasonable basis for requiring identification
and refusing admission to individuals who did not resemble their
identification. Transsexuals were not singled out for different
treatment. The complainant could have obtained correct
identification at the time.

The Tribunal orders B.J.’s Lounge to pay Tawni Sheridan $2,000 as
compensation for injury to dignity.

[Ed. Note: See also (No. 1) (1998), C.H.R.R. NP/98-55 and (No. 2)
(1998), 33 C.H.R.R. D/464 (B.C.Trib.).]

CASES CITED

Blencoe v. British Columbia (Human Rights Comm.) (1998), 30
C.H.R.R. D/439 (B.C.S.C.): 6

Blencoe v. British Columbia (Human Rights Comm.) (1998), 31
C.H.R.R. D/175 (B.C.C.A.): 7, 11

Canada (Attorney General) v. Rosin (1990), 16 C.H.R.R. D/441
(F.C.A.): 108

Canadian National Railway Co. v. Canada (Human Rights Comm.) and
Action travail des femmes, [1987] 1 S.C.R. 1114, 8 C.H.R.R.
D/4210: 77

Central Alberta Dairy Pool v. Alberta (Human Rights Comm.),
[1990] 2 S.C.R. 489, 12 C.H.R.R. D/417: 102

Central Okanagan School Dist. No. 23 v. Renaud, [1992] 2 S.C.R.
970, 16 C.H.R.R. D/425: 102

Eastgate v. True North R.V. (1998), 33 C.H.R.R. D/121
(B.C.Trib.): 9

Hajla v. Nestoras (1987), 8 C.H.R.R. D/3879 (Ont. Bd.Inq.): 104

Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R.
145, 3 C.H.R.R. D/1163: 75

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927:
11

Maffei v. Kolaeton Industry Inc., 626 N.Y.S. 2d 391 (1995): 84,
93

Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd.,
[1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 76

P. v. S. and Cornwall County Council (April 30, 1996), C-13/94
(Eur. Ct. H.R.): 82, 93

Price v. British Columbia (Ministry of Social Services and
Housing) (1991), 15 C.H.R.R. D/11 (B.C.C.H.R.): 108

Québec (Comm. des droits de la personne et droits de la jeunesse)
c. Maison des jeunes À-Ma-Baie (No 2) (1998), 33 C.H.R.R. D/263
(Trib.Qué.): 86

Sheridan v. Sanctuary Investments Ltd. (No. 1) (1998), C.H.R.R.
NP/98-54 (B.C.Trib.): 6

Sheridan v. Sanctuary Investments Ltd. (No. 2) (1998), 33
C.H.R.R. D/464 (B.C.Trib.): 4

Skelly v. Assist Realty (No. 1) (1991), 16 C.H.R.R. D/1
(B.C.C.H.R.): 108

Thambirajah v. Girl Guides of Canada (1995), 26 C.H.R.R. D/1
(B.C.C.H.R.): 108

Zurich Insurance Co. v. Ontario (Human Rights Comm.), [1992] 2
S.C.R. 321, 16 C.H.R.R. D/255: 106

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11, §7: 9, 11

British Columbia

Human Rights Code, R.S.B.C. 1996, c. 210

§3: 79

§8: 1, 102, 110, 118

§8(1): 106

§8(2): 106

§37(2)(a): 118

§37(2)(d): 121

Interpretation Act, R.S.B.C. 1979, c. 206, §8: 78

Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267: 49

Vital Statistics Act, R.S.B.C. 1996, c. 479, §27: 91

Quebec

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, §10:
87

[1] Tawni Sheridan, the complainant, filed a complaint (Exhibit
No. 1) with the B.C. Council of Human Rights in which she alleged
that Sanctuary Investments Ltd. doing business as “B.J.’s
Lounge,” the respondent, denied her a service or facility
customarily available to the public and/or discriminated against
her with respect to a service or facility customarily available
to the public because of her sex (gender) and/or a physical or
mental disability, contrary to §3 of the Human Rights Act, S.B.C.
1984, c. 22 , now §8 of the Human Rights Code, R.S.B.C. 1996, c.
210 (the “Code”). I was designated by the Chair of the B.C. Human
Rights Tribunal to hear the complaint and determine whether it is
justified.

PRELIMINARY DECISIONS

[2] Prior to the commencement of the hearing, several preliminary
applications were made and decided.

Complainant’s Application

[3] The complaint form (Exhibit No. 1) filed by the complainant
alleges discrimination because of sex (gender) and/or physical or
mental disability. On March 18, 1998, the complainant applied to
the Tribunal to amend her complaint to allege discrimination
because of her “gender identity,” a ground which is not included
in the Code.

[4] The Chair of the Tribunal designated Tribunal Member Tom
Patch to decide this application. In his decision, Mr. Patch
concluded that the Tribunal does not have the jurisdiction to
amend a complaint by adding a ground that is not included in the
Code: see Sheridan v. Sanctuary Investments Ltd. doing business
as B.J.’s Lounge (April 28, 1998, unreported [now reported 33
C.H.R.R. D/464]).

Respondent’s Application

[5] The respondent applied to the Tribunal for assistance in
obtaining certain information from the complainant. The
respondent also applied to the Tribunal to dismiss the complaint
without a hearing because of prejudice the respondent said it
suffered due to delay between the time that the B.C. Council of
Human Rights received the complaint and the time the respondent
was notified of the complaint.

[6] These preliminary applications were also referred to Tribunal
Member Patch to decide. He dismissed them both: see Sheridan v.
Sanctuary Investments Ltd. (April 24, 1998, unreported [C.H.R.R.
NP/98-54]). With respect to the delay application, Mr. Patch
referred to Blencoe v. British Columbia (Human Rights Comm.)
(1998), 30 C.H.R.R. D/439 (B.C.S.C.) and wrote the following (at
para. 7):

Though section 7 of the Charter is inapplicable, based on Blencoe
and Watson et al. v. B.C.C.H.R. and Egolf, unreported, February
2, 1994 (B.C.S.C.), I conclude that the Tribunal has authority to
decline to hear a case on a preliminary basis where there is
evidence of prejudice of a sufficient magnitude to impair the
fairness of the hearing.

Mr. Patch concluded that there was no evidence of sufficient
prejudice to impair the fairness of the hearing.

RESPONDENT’S SECOND DELAY APPLICATION

[7] On May 12, 1998, at the conclusion of the evidence portion of
the oral hearing into this complaint, Mr. Andrew, on behalf of
the respondent, again raised the issue of delay. The B.C. Court
of Appeal, on May 11, 1998, had released its decision (Blencoe v.
British Columbia (Human Rights Comm.) (1998), 31 C.H.R.R. D/175)
which overturned the B.C. Supreme Court decision. Mr. Andrew
submitted that Mr. Patch had .”.. relied heavily on the [B.C.
Supreme Court] Blencoe decision” and argued that he should be
given the opportunity to review the B.C. Court of Appeal decision
and make further submissions on the issue of delay.

[8] I decided to continue the hearing so that the parties could
make their final submissions. A schedule was established for
written submissions on the issue of delay and the relevance of
the B.C. Court of Appeal decision in Blencoe.

[9] For the purposes of deciding the respondent’s application, I
will assume that I have the jurisdiction to reconsider Mr.
Patch’s earlier decision in light of the Court of Appeal Blencoe
decision. I agree with the reasoning of Tribunal Member Nitya
Iyer that the Tribunal has the jurisdiction to determine whether
rights under §7 of the Canadian Charter of Rights and Freedoms
(the “Charter”) have been infringed: see Dahl and Eastgate v.
True North R.V. (September 2, 1998, unreported [now reported 33
C.H.R.R. D/121]).

[10] In his written submission dated June 5, 1998, Mr. Andrew, on
behalf of the respondent, stated (at para. 5) that he .”.. made a
new motion to the Tribunal on May 12, 1998 based on the fact that
the law concerning delay had changed ... because of the reversal
of the Blencoe decision by the Court of Appeal of British
Columbia.”

[11] In my view, the Court of Appeal decision in Blencoe does not
assist the respondent for the following reasons. First, §7 of the
Charter does not apply to corporations: see Irwin Toy Ltd. v.
Quebec (Attorney General), [1989] 1 S.C.R. 927, and also Blencoe
(B.C.C.A.) at D/187. Second, the Court of Appeal found that the
stigma and prejudice associated with sexual harassment cases is
analogous to the stigma and prejudice which arises in sexual
assault cases. I see no analogous stigma arising in the
complaints filed by the complainant which allege discrimination
on the grounds of sex and physical or mental disability.

[12] Mr. Andrew’s written submissions on this application (dated
June 5 and July 10, 1998) raised issues unrelated to his delay
application. The reason that I allowed him to make a second delay
application was the release of the Court of Appeal’s decision in
Blencoe. In these circumstances, I do not think it is appropriate
to consider the additional issues raised in his submissions, and
I have not done so.

[13] In conclusion, Mr. Andrew’s application that the proceedings
against the respondent be stayed because of delay is dismissed.

EVIDENCE

The Complainant’s Case

[14] The complainant testified that she is a transsexual who had
sexual reassignment surgery in February 1998. She started
cross-dressing before she was a teenager but did not go out in
public in women’s clothes until August 1995, when she was 29
years old. Shortly before this time, she had begun to take a
friend’s birth control pills.

[15] The complainant testified that she was aware from her
research into transsexualism that she was required to live
full-time as a woman for an extended period of time before gender
reassignment surgery could be performed. She understood that
living full-time as a woman included using the washroom
designated for women when she was in public establishments. She
said that if she used the men’s washroom she .”.. would no longer
stand a chance as [sic] having people perceive ... [her] as
female.”

[16] The complainant thought nightclubs that catered to the gay
and lesbian community would provide her .”.. with a safe
environment to explore ... [her] new identity and [to]
socialize.” In early August 1995, she twice attended at one gay
nightclub in Victoria dressed as a woman with .”.. moderate
success, given the circumstances.” She did not experience any
problems when she used the women’s washroom.

[17] On or about August 25, 1995, she attended at the respondent
dressed as a woman. After a couple of glasses of beer, she used
the women’s washroom. There was no one else in the washroom at
the time. When she emerged from the washroom, Colin Stephenson,
whom the complainant described as the respondent’s “bouncer,”
told her not to use the women’s washroom again or she would be
asked to leave.

[18] In October 1995, she went to see Dr. Kadziora, who
prescribed a course of hormone treatment. He also provided her
with a letter (Exhibit No. 7) dated October 26, 1995, explaining
that she was a transsexual who was authorized to live and dress
as a woman during the pre-operative phase of her treatment. A
couple of months later, she switched from Dr. Kadziora to Dr. van
den Berg, whom she described as ... the endocrinologist that
transsexuals went to.” She was also seeing Dr. Scott, a
psychiatrist.

[19] The complainant said that sometime in the fall of 1995 she
again went to the respondent. The only staff member she saw was
the bartender. She had a couple of drinks and used the women’s
washroom without any problems.

[20] The complainant decided to attend the respondent’s New Year
celebrations on December 31, 1995. She had dinner with her
mother, who helped her dress and do her make-up. She arrived at
the respondent at about 11:00 p.m. At the door, Mr. Stephenson
asked to see the complainant’s driver’s licence, which she showed
him. The licence was about two years old; it showed the
complainant as a man and with a male name. Referring to the
picture on the driver’s licence, Mr. Stephenson said, “It’s not
you.” He refused her admittance to the respondent.

[21] The complainant testified that she then showed Mr.
Stephenson the letter written by Dr. Kadziora (Exhibit No. 7)
which referred to the male name on her driver’s licence. She said
that, after Mr. Stephenson read the letter, he told her it “meant
nothing.” The complainant asked to see the respondent’s manager.
Mr. Stephenson refused this request and the complainant left.

[22] At the beginning of January 1996, the complainant telephoned
Mr. Bruce Winckler, the manager of the respondent. She asked him
why she had not been permitted to speak to him on New Year’s Eve
and also why she was not permitted to use the women’s washroom.
According to the complainant, Mr. Winckler told her that the
liquor regulations permitted entry to be refused to anyone who
did not match their picture identification. He also told her that
there had been complaints from lesbian customers of the
respondent about transsexuals in general, and the complainant in
particular, using the women’s washroom.

[23] As a result of this incident on New Year’s Eve, the
complainant legally changed her name and obtained a driver’s
licence in her female name in February 1996. She said that she
had not done this sooner because she could not afford the $125.
She borrowed the money from her mother.

[24] Patricia Scriver testified that she is a transsexual who
began the transition from male to female in 1994. During the
summer of 1995, she met Murray, one of the respondent’s
bartenders, at a party. She divulged that she was a transsexual
who had started transition a year and a half earlier.

[25] About two weeks after the party, Ms. Scriver went to the
respondent with some friends. She said that Murray prevented her
from using the women’s washroom. She described the incident as
follows:

We were celebrating a birthday party, and we had a wonderful
evening up until the point that we got up to leave and I had to
use the washroom, and as I walked into the washroom one of the
members of the bar staff [i.e., Murray] grabbed me by the arm and
physically yanked me out of the door and said, “You can’t go in
there. You’re a man.”

[26] Ms. Scriver stated that she had not had any other problems
using women’s washrooms during the year and a half she had been
living as a woman. Her boyfriend, Darwin Foster, attempted to
speak to Murray but was told he had gone on a break.

[27] Mr. Foster testified that he went to speak to Mr. Winckler
the day after Murray had stopped Ms. Scriver from using the
washroom. Mr. Foster told Mr. Winckler that Ms. Scriver was “not
a guy,” that she was on hormones, and “through the gender clinic
already.” Mr. Foster testified that Mr. Winckler’s response was
to the effect that .”.. as long as she has that thing between her
legs, she’s a guy.”

[28] Ingrid Olson testified that she is a transsexual who began
living full-time as a woman on May 6, 1995. She had sexual
reassignment surgery on December 12, 1997.

[29] Prior to May 6, 1995, Ms. Olson attended at the respondent
as a male. She continued to attend at the respondent after May 6,
1995, dressed as a woman. She used the women’s washroom during
her transition and never experienced any problems.

[30] After hearing that the complainant and other transsexuals
had been told not to use the women’s washroom, Ms. Olson showed
Mr. Winckler the letter she had from her psychiatrist explaining
that she was taking hormones and in transition. She testified
that Mr. Winckler was not .”.. concerned with the letter, it was
whether or not we had had our surgery.” Nevertheless, Ms. Olson
continued to use the women’s washroom at the respondent without
incident. She was not aware of any other customers of the
respondent making a complaint about transsexuals using the
women’s washroom.

[31] Dr. Richard Robinow testified as an expert witness. He has
been a psychiatrist on staff at the Vancouver General Hospital
since 1979. Since 1986, he has been associated with the Gender
Dysphoria Clinic, which became the Centre for Sexuality, Gender
Identity and Reproductive Health in 1995. He is a half-time
psychiatrist with the Centre.

[32] Dr. Robinow outlined four criteria by which individuals are
determined to be male or female. The first criterion is the
physical sex of the person. This may be male, female or
indeterminate in the case of people with ambiguous genitalia. The
second criterion is chromosomal sex. Females are generally XX and
males are XY. However, some individuals are missing a chromosome
or have an extra one.

[33] The third criterion is .”.. the actual differentiation of
the brain in subtle ways to express male or female.” The fourth
criterion is gender identity, which is the person’s inner
subjective experience of femininity or masculinity.

[34] Dr. Robinow explained that there can be various degrees of
congruence between the four different criteria. “It’s possible to
have a female brain in an externally male body. It’s possible to
have the body of one sex and a strong gender identity of the
other sex.” The sex of an individual is objective (except in the
case of a person with ambiguous genitalia) while the gender of an
individual is subjective. Sexual preference is independent of
gender identity.

[35] Gender dysphoria describes the condition of people who are
unhappy about an incongruency between their physical sex and
their gender identity. The most distressed of gender dysphoric
people are transsexuals. They have a complete disassociation
between their gender identity and their physical sexual identity.
Medically, transsexuality is considered a specific illness,
Gender Identity Disorder, which is defined (Exhibit No. 5) in the
Diagnostic and Statistical Manual of Mental Disorders, 4th ed.
(American Psychiatric Association, 1994) as follows:

A. A strong and persistent cross-gender identification ...

B. Persistent discomfort with his or her sex or sense of
inappropriateness in the gender role of that sex.

C. The disturbance is not concurrent with a physical intersex
condition.

D. The disturbance causes clinically significant distress or
impairment in social, occupational, or other important areas of
functioning.

[36] The Harry Benjamin International Gender Dysphoria
Association, Inc. is an international research and treatment
organization composed of about three hundred specialists from a
variety of fields, for example, endocrinology, psychotherapy,
plastic surgery. The organization has issued Standards of Care
for the hormonal and surgical sex reassignment of gender
dysphoric persons (Exhibit No. 3). These Standards require, inter
alia, that an individual seeking sexual reassignment surgery must
have two independent psychiatric assessments and must
successfully live full-time in the social role of the genetically
opposite sex for at least twelve months.

[37] The preoperative phase which consists of psychiatric
assessment and hormonal treatment is referred to as “transition.”
Dr. Robinow described this period of time as follows:

During the time of transition, the person, by definition, is
shifting. Their body is changing externally. Their mind is
changing internally. They are acquiring the habits, the ...
appearance and ... living in the experience of the other role.

[38] He stated that during transition the person is considered to
be in the desired sex rather than the physical sex assigned at
birth. Part of living in the role of the desired sex is using the
washroom of that sex. Dr. Robinow considered use of the
appropriate washroom “significant” and said that being prevented
from doing so was a “source of distress” for transsexuals.

[39] Dr. Robinow assessed the complainant in October 1996 and
identified her as a moderate to high intensity transsexual. He
was aware that she had seen Dr. Scott in 1995 and that he had
diagnosed her as a transsexual. She was recommended to the
Medical Services Plan for sexual reassignment surgery in
September 1997.

[40] Gail Owen testified that she has been a regional
representative for the Public Service Alliance of Canada since
1984. She is a human rights advocate for her union and involved
in transgendered issues both in her union and the Canadian Labour
Congress. She is a transsexual. She has not yet had sexual
reassignment surgery.

[41] In her professional capacity, Ms. Owen provides workplace
assistance to individuals who are in transition. She negotiates
protocols about washroom use and has discussions with co-workers
and employers to address any fears they might have about
transsexualism.

[42] Ms. Owen outlined four possible solutions to use of
washrooms during the transition period. She said the best
solution is to allow the individual to use the washroom of his or
her choice. A less practical solution in a multifloor building is
for the individual to use the washroom of choice on another
floor. Another option is to develop a sign to put on the washroom
door (for example, a sign that says “occupied”) so that the
individual can use the washroom of choice in privacy. The final
option is to replace urinals with cubicles and have unisex
washrooms.

[43] Ms. Owen testified that in her experience co-workers lose
interest in which washroom a transsexual uses after about a
month.

[44] Ms. Owen stated that it would be very embarrassing and
emotionally difficult for her to use the men’s washroom when she
is dressed as a woman and immersed in living as a woman. She said
that she has .”.. peace of mind going into the women’s washroom.”
She always carries her doctor’s letter which explains that she is
a transsexual in transition. However, she has never had to
produce it during her two years of transition.

[45] Ms. Owen was asked by Mr. Andrew how a service provider
(such as the respondent) should respond to a transsexual who does
not have a letter from a doctor and who is not known to the
employees of the establishment. Ms. Owen responded as follows:

... if they don’t have a letter, so be it. They’re still there
presenting themselves as somebody. They should be accepted for
who they are ... I guess the reasonable thing the bar might say:
Look it[‘s] okay for tonight we understand where you’re at, but
can you talk to us; can you tell us what this is about so that we
have some understanding about it?

It’s just to me it would be common sense to find out about it
rather than just take action because a person is using the
washroom, and you don’t think they should be.

[46] Deborah Brady testified that she is a transgendered person
who has been active as an advocate for transgendered people since
1994. She was a founding member of the High Risk Project Society
which examined the factors responsible for the health and social
problems experienced by many transgendered people. She has been a
board member of the Vancouver ZENITH Foundation, a nonprofit
society which provides education, support and advocacy for
transgendered people. She also served on the advisory committee
of Finding Our Place: “Transgendered Law Reform Project” (Exhibit
No. 6). She was qualified as an expert witness on advocacy issues
involving transgendered people.

[47] Ms. Brady prefers the term “transgendered” to “transsexual”
because the former term includes those individuals who are
cross-dressing and cross-living and who are not able to or
interested in having sexual reassignment surgery. She stated that
drag queens are generally gay males who were born with male
genitalia and who identified and were content as men, but whom
she still included in the term “transgendered.”

[48] Ms. Brady described in a general way the types of
discrimination which transgendered people encounter in our
society.

The Respondent’s Case

[49] Bryan Wilkinson has worked in the Liquor Control and
Licensing Branch since 1987. He has been a liquor inspector for
approximately eight years. About 80 percent of his time is spent
in licensing duties (applications for new liquor licences or for
changes to existing licences) and about 20 percent in enforcement
(day and night inspections). Mr. Andrew’s application to have Mr.
Wilkinson qualified as an expert with respect to the
interpretation of the Liquor Control and Licensing Act [R.S.B.C.
1996, c. 267] (the “Act”) was refused; Mr. Wilkinson was
qualified as an expert concerning the job of liquor inspector.

[50] Mr. Wilkinson testified that the respondent was located in
one of the most dangerous areas of Victoria because of the drug
dealing and prostitution that occur there. He said that no
incidents (such as fighting or having a minor on the premises)
concerning the respondent had been reported to him by either the
police or another liquor inspector. The respondent has been
successful in its two applications for extensions to its
licensing hours.

[51] The Act prohibits the selling of liquor to minors, but
stipulates that requiring the production of identification is a
defence to such a charge. The regulations made pursuant to the
Act state that approved identification includes a passport, a
B.C. identification card or a driver’s licence with a photograph.
The Act also authorizes a licensee to require a person to leave
or to forbid entry to a person if the licensee is of the opinion
that the presence of the person is “undesirable,” as long as the
licensee’s opinion does not contravene the Code. According to the
Licensee Program Manual “Serving It Right” (Exhibit No. 14),
“undesirables” include “problem patrons” and “known
troublemakers.”

[52] Mr. Wilkinson testified that the primary reason for a strong
identification policy at the door of an establishment such as the
respondent is to check for minors. Such a policy also gives
patrons the impression that the licensee is well managed. He
stated that some licensees have a policy of checking everyone’s
ID because drug dealers, pimps and prostitutes generally do not
carry ID.

[53] Mr. Wilkinson stated that doormen are advised to be firm
after making decisions at the door and not to enter into
discussions with patrons. He said that the entry to a bar is
neither the time nor place for an individual to present a letter
to explain why he or she does not resemble the ID presented.

[54] Mr. Wilkinson has inspected the respondent in the evening
about twelve times a year since the respondent commenced
operation. He stated that Colin Stephenson, the doorman at the
respondent, was .”.. consistently courteous and respectful of
patrons ...” and that .”.. among doormen, he’s extraordinary.”
The only complaint he has received about the respondent was a
telephone call from the complainant in January, 1996.

[55] Bruce Winckler testified that he is the owner of the
respondent which is located in the basement of the Carlton Plaza
Hotel on Johnson Street in Victoria. The respondent, which opened
in 1993, is a licensed video lounge catering to gay, lesbian, and
transgendered individuals. The respondent manages the liquor
licence for Rafiki Properties, the company which owns the Carlton
Plaza Hotel. Mr. Winckler began to personally manage the bar in
early 1995. In October 1996, he hired Steven Andrew as manager.

[56] The site of the respondent was previously occupied by a
sports bar. Its hours of operation were restricted due to
incidents, such as a shooting and several stabbings. As a result
of discussions between Mr. Winckler and the hotel, a metal grate
was installed on a ledge to discourage the drug dealers and
prostitutes who frequented that area. Increased bicycle patrols
by police in the past two years have also helped to reduce the
number of “undesirables” in the vicinity. Nevertheless, the area
remains very violent. Mr. Winckler testified that there have been
two murders in the past year within half a block of the
respondent.

[57] At the times relevant to the complaint, the respondent had a
sign posted at its entrance (Exhibit Nos. 15 and 16) stating that
picture ID, such as a passport, a driver’s licence with a photo,
or a B.C. government photo ID, was required.

[58] Mr. Winckler testified that prostitutes were not welcome at
the respondent. Some of the prostitutes in the area were men who
dressed in women’s clothing.

[59] During the period when he managed the respondent, Mr.
Winckler stated that he received several complaints from female
patrons about men using the women’s washroom. As a result of
these complaints, he instituted a policy that individuals who
were anatomically men were to use the men’s washroom and
individuals who were anatomically women were to use the women’s
washroom. It was up to the staff to administer this policy; he
did not provide them with any guidelines.

[60] On January 3, 1996, the complainant telephoned Mr. Winckler.
She told him that she was upset with the respondent’s washroom
policy and that she had been refused admittance to the respondent
on New Year’s Eve. After discussing the incident with Mr.
Stephenson, Mr. Winckler was satisfied that he had made the
correct decision.

[61] In October 1996, after learning that transsexuals are
required to live in the desired sex for a period of time before
sexual reassignment surgery, Mr. Winckler changed the
respondent’s policy concerning use of the washrooms. Patrons are
no longer questioned about their choice of washrooms.

[62] Elizabeth Barker testified that she is the human rights
officer who investigated the complainant’s allegations. The
complaint was assigned to her on August 10, 1996; she completed
her investigation on October 22, 1996.

[63] Ms. Barker met with the complainant on one occasion and
spoke with her on the telephone two or three times. Ms. Barker
testified that it was her practice to make notes during
conversations with any individuals she interviewed. She brought
with her the file from the Human Rights Commission which
contained her personal notes. There was some information in her
notes which was not contained in her investigation report
(Exhibit No. 17). However, in her notes of her conversations with
the complainant about the incident on December 31, 1995, there
was no mention that the complainant had presented a letter to Mr.
Stephenson on that date. Ms. Barker had no recollection of the
complainant referring to a letter.

[64] Colin Stephenson testified that he has been a doorman at the
respondent since 1993. He generally worked from 9:00 p.m. until
1:30 a.m. He has approximately ten years’ experience in this type
of work. At the time of the hearing, he was 33 years old.

[65] Mr. Stephenson stated that he is familiar with and
recognizes about 80 percent of the respondent’s clientele. When
he does not recognize someone, he asks for ID and continues to do
so for five or six times until the individual becomes familiar to
him. If the individual’s appearance changes drastically, he will
again ask for ID. Acceptable ID are a B.C. ID card, a driver’s
licence, or a passport. The admittance policy of the respondent
is that the face on the ID presented must match the face of the
person presenting it.

[66] If the ID presented does not match the face of the person
presenting it, then admittance is refused. Mr. Stephenson
testified that he does not engage in discussion with individuals
to whom he refuses admittance. If the person wishes to discuss
the situation, Mr. Stephenson suggests that the respondent’s
manager be contacted at noon the next day.

[67] Mr. Stephenson stated that the respondent’s policy with
respect to the use of the washrooms was that “men use the men’s
washroom and women use the women’s washroom”; there was no
distinction made for transsexuals. He testified that he received
complaints from some of the respondent’s lesbian clientele that
men were using the women’s washroom.

[68] One evening Mr. Stephenson received a complaint about a man
in the women’s washroom. When he opened the washroom door, he saw
the complainant standing at the sink. He asked her to use the
men’s washroom; she answered that she was a “pre-operative
transsexual” and that she would like to use the women’s washroom.
He told her what the respondent’s policy was and that she could
discuss it the next day with the owner. Mr. Stephenson did not
believe that he had been on the door when the complainant arrived
that evening.

[69] Mr. Stephenson said that he refused many people at the door
on New Year’s Eve. He did not recognize the complainant when she
arrived that evening. He asked her for ID. She presented ID with
a male name and a male face. She told him that she was .”.. the
one that had the problems in the women’s washroom.” He refused
her admittance because she did not look like her ID and told her
that she could discuss the situation with the owner at noon the
next day.

[70] Mr. Stephenson testified that the complainant did not
present a letter or any document to him on New Year’s Eve. He
stated that, even if she had presented a letter, it would not
have mattered what it said because all he is .”.. instructed to
do is check the identification on the ID on the person. Anything
else is – doesn’t matter. It’s not relevant.” He said that on
another occasion when he and the complainant had “an altercation”
at the women’s washroom she presented a letter that she said was
a doctor’s note. He thought the complainant’s language during
this interchange was inappropriate and he asked her to leave the
premises. He did not read the letter. This incident occurred
after New Year’s Eve.

[71] Mr. Stephenson said that he never saw Ms. Olson, or any
other transsexuals, use the women’s washroom at the respondent.

ISSUES

[72] The issues presented in this complaint are as follows:

1. Is discrimination against a transsexual discrimination because
of “sex” or because of a “physical or mental disability”?

2. If so, did the respondent discriminate against the complainant
because of her sex or because of a physical or mental disability
contrary to §8 of the Code?

ANALYSIS AND DECISION

[73] The relevant portions of §8 of the Code read as follows:

8(1) A person must not, without a bona fide and reasonable
justification,

(a) deny to a person ... any ... service or facility customarily
available to the public, or

(b) discriminate against a person ... regarding any ... service
or facility customarily available to the public

because of the ... physical or mental disability, sex ... of that
person ...

(2) A person does not contravene this section by discriminating

(a) on the basis of sex, if the discrimination relates to the
maintenance of public decency ...

[74] Before addressing these specific issues, I think it is
important to briefly review some of the decisions of the Supreme
Court of Canada which set out the interpretive approach to be
applied when considering human rights legislation.

[75] In Insurance Corporation of British Columbia v. Heerspink
(1982), 3 C.H.R.R. D/1163, the Supreme Court of Canada (at D/1166
[para. 10302]) stated that “[w]hen the subject matter of a law is
said to be ... ”˜human rights’ ... then ... that law, and the
values it endeavours to buttress and protect, are, save ...
constitutional laws, more important than all others.” Mr. Justice
Lamer (as he then was) went on to say [at para. 10303] that the
human rights legislation in effect in B.C. at that time “is not
to be treated as another ordinary law of general application. It
should be recognized for what it is, a fundamental law.”

[76] Mr. Justice McIntyre reaffirmed this approach in Ontario
Human Rights Commission v. Simpsons-Sears Ltd. (1985), 7 C.H.R.R.
D/3102 at D/3105 [para. 24766] (S.C.C.) as follows:

... It is not, in my view, a sound approach to say that according
to established rules of construction no broader meaning can be
given to the Code than the narrowest interpretation of the words
employed. The accepted rules of construction are flexible enough
to enable the Court to recognize in the construction of a human
rights code the special nature and purpose of the enactment ...
and give to it an interpretation which will advance its broad
purposes. Legislation of this type is of a special nature, not
quite constitutional, but certainly more than the ordinary ...

[77] In Action travail des femmes v. Canadian National Railway
Co. (1987), 8 C.H.R.R. D/4210 at D/4224 [para. 33238] (S.C.C.),
Chief Justice Dickson reiterated the proper approach to be taken
to the interpretation of human rights legislation, as follows:

Human rights legislation is intended to give rise ... to
individual rights of vital importance ... We should not search
for ways and means to minimize those rights and to enfeeble their
proper impact. Although it may seem commonplace, it may be wise
to remind ourselves of the statutory guidance given by the
federal Interpretation Act which asserts that statutes are deemed
to be remedial and are thus to be given such fair, large and
liberal interpretation as will best ensure that their objects are
attained ...

[78] Section 8 of the Interpretation Act, R.S.B.C. 1979, c. 206
contains similar wording. In my view, I am governed by this
approach in my interpretation of the Code.

[79] I also note §3 of the Code which states that the purposes of
the Code are, inter alia, “to foster a society in British
Columbia in which there are no impediments to full and free
participation in the economic, social, political and cultural
life ...” of the Province and “to promote a climate of
understanding and mutual respect where all are equal in dignity
and rights.”

1. Is discrimination against a transsexual discrimination because
of “sex” or because of a “physical or mental disability”?

[80] Counsel for the complainant and the Deputy Chief
Commissioner submitted that “sex” in §8 can be interpreted to
include transsexualism. Mr. Andrew argued that “sex” and “gender
identity” were not synonymous.

[81] The question before me is not whether transsexualism ought
to be a protected ground in the Code; the question is whether the
grounds of “sex” and “physical or mental disability” can be
reasonably interpreted to include transsexualism. (I should note
that the inclusion of the word “gender” in parentheses after the
ground of “sex” in the complaint form (Exhibit No. 1) carries no
legal weight.) There have not been any decisions concerning
transsexuals under the former Human Rights Act or the Code.
Counsel for the complainant and counsel for the Deputy Chief
Commissioner referred me to decisions concerning transsexuals
from other jurisdictions.

[82] P. v. S. and Cornwall County Council (Case C-13/94, December
14, 1995 [sic], European Court of Justice) concerned a
male-to-female transsexual who was dismissed from her employment
after she informed her employer that she would be undergoing
sexual reassignment surgery. The question to be answered by the
European Court of Justice was whether the European Community’s
Directive 76/207/EEC which prohibited discrimination in
employment “on the grounds of sex” protected transsexuals from
discrimination.

[83] The Court stated that in transsexuals, “biological sex and
sexual identity fail to coincide.” It went on to say that it
regarded as

... obsolete the idea that the law should take into
consideration, and protect, a woman who has suffered
discrimination in comparison with a man, or vice versa, but
denies that protection to those who are also discriminated
against by reason of sex, merely became [sic] they fall outside
the traditional man/woman classification ...

and that .”.. where unfavourable treatment of a transsexual is
related to (or rather is caused by) a change of sex, there is
discrimination by reason of sex or on grounds of sex ...”

[84] In Maffei v. Kolaeton Industry Inc., 626 N.Y.S. 2d 391
(1995), the plaintiff was a female-to-male transsexual. After he
underwent sexual reassignment surgery, he alleged that he
suffered harassment at his place of employment. The Supreme
Court, New York County, stated that while

... a person may have both male and female characteristics,
society only recognizes two sexes. In the complaint plaintiff
alleges that he is now a male based on his identity and outward
anatomy. Being a transsexual male he may be considered part of a
subgroup of men. There is no reason to permit discrimination
against that subgroup under the broad antidiscrimination law of
our City.

[85] The Court concluded that an employer who harasses a
transsexual employee violates New York City’s prohibition against
discrimination based on “sex.”

[86] On July 2, 1998, the Quebec Human Rights Tribunal released
its decision in Québec (Comm. des droits de la personne et droits
de la jeunesse) c. Maison des jeunes À-Ma-Baie (No 2) (Que.Trib.
Montreal 500-53-000078-970 [now reported 33 C.H.R.R. D/263]). (By
letter dated July 30, 1998, counsel for the Deputy Chief
Commissioner brought this decision to my attention and to the
attention of Ms. Sawyer and Mr. Andrew.)

[87] C.D.P. concerned a male-to-female transsexual who was
dismissed after she informed her employer that she was a
transsexual in the process of undergoing a sex change. The
Tribunal considered the meaning of the protected ground of “sex”
contained in §10 of the Charter of Human Rights and Freedoms,
R.S.Q. 1977, c. C-12, as amended:

10. Every person has a right to full and equal recognition and
exercise of his human rights and freedoms, without distinction,
exclusion or preference based on ... sex ...

[88] The Tribunal concluded (at [D/290] para. 111) that .”.. le
sexe non seulement s’entend de l’état d’une personne mais encore
comprend le processus même d’unification, de transformation que
constitue le transsexualisme” (.”.. sex does not include just the
state of a person but also the very process of the unification
and transformation that make up transsexualism”) (unofficial
translation provided by the Quebec Human Rights Tribunal).

[89] The Tribunal went on to say (at [D/290] para.114) that
discrimination based on the process of unification of disparate
and contradictory sexual criteria could also constitute sex-based
discrimination.

[90] As part of its findings, the Tribunal declared that [at
D/299, para. 172] .”.. le transsexualisme ou le processus
d’unification des critères disparates est inclus dans
l’expression ”˜sexe’ de l’article 10 de la Charte des droits et
libertés de la personne du Québec” (“transsexualism or the
process of unification of disparate sexual criteria is included
in the scope of the term ”˜sex’ in §10 of the Charter of Human
Rights and Freedoms”) (unofficial translation provided by the
Quebec Human Rights Tribunal).

[91] Society in general, and the law in particular, assumes that
sex is a bipolar characteristic and that an individual is either
a male or a female. In British Columbia, legislative
acknowledgement of transsexualism is found in §27 of the Vital
Statistics Act, R.S.B.C. 1996, c. 479, which allows a
transsexual, after sexual reassignment surgery, to change the sex
designation on his or her birth certificate.

[92] The medical profession is more able to address the
complexity of the male-female continuum, perhaps because it is a
profession which deals with human beings as they actually are,
with all their ambiguities and contradictions. Dr. Robinow’s
evidence made it clear that in some individuals there is a lack
of congruence between the various indicators of sex. In the case
of transsexuals, there is a complete disassociation between their
physical sex and their subjective experience of their masculinity
or femininity.

[93] In my view, given the large and liberal interpretation which
the Supreme Court of Canada has emphasized must be applied to
human rights legislation, I am satisfied that discrimination
against a transsexual constitutes discrimination on the basis of
sex. Whether the discrimination is regarded as differential
treatment because the transsexual falls outside the traditional
man/woman dichotomy (as in P. v. S., supra), or because
male-to-female transsexuals are regarded a subgroup of females
(and vice versa) (as in Maffei, supra), the result is the same:
transsexuals experience discrimination because of the lack of
congruence between the criteria which determine sex.

[94] Therefore, I conclude that discrimination against a
transsexual constitutes discrimination because of “sex.”

[95] Dr. Robinow testified that transsexuals are the most
distressed of gender dysphoric individuals because of the
complete disassociation between their gender identity and their
physical sexual identity. Gender identity disorder is defined in
the Diagnostic and Statistical Manual of Mental Disorders
(American Psychiatric Association, 1994).

[96] The complainant was being treated by Dr. van den Berg, an
endocrinologist, and Dr. Scott, a psychiatrist. In October 1996,
Dr. Robinow assessed her as a moderate to high intensity
transsexual. She subsequently had sexual reassignment surgery.

[97] In these circumstances, I conclude that discrimination
against a transsexual constitutes discrimination because of
“physical or mental disability.”

2. Did the respondent discriminate against the complainant
because of her sex or because of a physical or mental disability
contrary to section 8 of the Code?

[98] The complainant has given evidence about two incidents
which, she alleges, constitute discrimination on prohibited
grounds. The first occurred on August 25, 1995, when Mr.
Stephenson told her not to use the women’s washroom at the
respondent. The second happened on December 31, 1995, when Mr.
Stephenson refused her admittance to the respondent.

[99] With respect to the washroom incident, Ms. Scriver gave
evidence that she was physically prevented from using the women’s
washroom at the respondent by one of its employees, even though
she had informed him that she was in transition. Mr. Foster
testified that, when he spoke to Mr. Winckler about this incident
the following day, he was told that .”.. as long as she has that
thing between her legs, she’s a guy.” Ms. Olson’s evidence was
that she had spoken with Mr. Winckler about transsexuals in
transition but that the critical factor for him was whether
surgery had taken place.

[100] Mr. Winckler testified that the respondent’s policy was
that individuals who were anatomically men were to use the men’s
washroom and vice versa. Because of this policy, Mr. Stephenson
asked the complainant to leave the women’s washroom even though
she informed him that she was a “pre-operative transsexual.” He
suggested that she talk to Mr. Winckler the next day. Mr.
Stephenson said that on another occasion (in 1996) the
complainant showed him a letter from her doctor but he did not
read it.

[101] Both the Harry Benjamin International Gender Dysphoria
Association, Inc., and the medical profession in British Columbia
require a transsexual, before sexual reassignment surgery, to
live in the desired sex for a period of time. The complainant was
aware of this requirement and she began to appear in public as a
woman in August 1995, shortly after beginning to take female
hormones. Dr. Robinow testified that during this transition phase
the individual is considered to be in the desired sex, rather
than the physical sex assigned at birth. He further stated that
part of living in the role of the desired sex is the use of the
washroom of that sex.

[102] The respondent’s policy with respect to use of washrooms
was a neutral policy which clearly had an adverse effect on
transsexuals in transition. Therefore, the respondent had a duty
to accommodate transsexuals in general, and the complainant in
particular, to the point of undue hardship. (For an analysis of
direct and adverse effect discrimination, see Central Alberta
Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 C.H.R.R.
D/417 at D/433–D/437 (S.C.C.). For an analysis of the duty to
accommodate, see Central Okanagan School Dist. No. 23 v. Renaud
(1992), 16 C.H.R.R. D/425 at D/431–D/440 (S.C.C.).) Because this
is a case of adverse effect discrimination, the respondent cannot
avail itself of the “bona fide and reasonable justification”
defence in §8 of the Code.

[103] While the complainant did not specifically bring her need
for accommodation to the attention of an employee of the
respondent, I find that her failure to do so is not fatal to her
complaint. The testimony of Ms. Scriver, Mr. Foster, Mr. Winckler
and Mr. Stephenson makes it evident that there were to be no
exceptions for transsexuals to the respondent’s policy.
Furthermore, I find that, given the immediate nature of the
service required, if Mr. Stephenson did suggest that the
complainant discuss her situation with Mr. Winckler the following
day, this suggestion did not constitute reasonable accommodation.

[104] Both Mr. Winckler and Mr. Stephenson testified that they
had received complaints from female patrons of the respondent
about men using the women’s washroom. However, the preference of
patrons is not a defence to a complaint of discrimination: Hajla
v. Nestoras (1987), 8 C.H.R.R. D/3879 at D/3882 (Ont. Bd.Inq.).

[105] While Ms. Olson testified that she had used the women’s
washroom at the respondent, I find that this was a slip in the
implementation of the respondent’s policy rather than an
exception or accommodation.

[106] Section 8(2) of the Code allows an exemption from §8(1) if
the discrimination on the basis of sex .”.. relates to the
maintenance of public decency ...” It is well established that
statutory exceptions to human rights legislation are to be
narrowly construed: Zurich Insurance Co. v. Ontario (Human Rights
Comm.) (1992), 16 C.H.R.R. D/255 at D/263 (S.C.C.). The onus is
on the respondent to prove the statutory exception or exemption
on the balance of probabilities.

[107] Based on Dr. Robinow’s evidence, I find that transsexuals
in transition who are living as members of the desired sex should
be considered to be members of that sex for the purposes of human
rights legislation. Taking this view, the complainant, on August
25, 1995, was a woman and, therefore, her choice of the women’s
washroom was appropriate. The respondent did not lead any
evidence to establish that the use of women’s washrooms by a
male-to-female transsexual interfered with the “maintenance of
public decency.”

[108] The fact that transsexuals are to be considered members of
the desired sex for the purposes of human rights legislation does
not mean that they will necessarily be considered members of the
desired sex for the purposes of other legislation. I note that a
similar situation arises with respect to independent contractors
and volunteers, who are generally considered to be in an
employment situation for the purposes of human rights legislation
even though the same result does not hold for the purposes of
employment or taxation legislation: see Price v. British Columbia
(Ministry of Social Services and Housing) (1991), 15 C.H.R.R.
D/11 at D/16–D/18 (B.C.C.H.R.); Skelly v. Assist Realty (No. 1)
(1991), 16 C.H.R.R. D/1 at D/3–D/4 (B.C.C.H.R.); Canada (Attorney
General) v. Rosin (1990), 16 C.H.R.R. D/441 at D/448–D/453
(F.C.A.); Thambirajah v. Girl Guides of Canada (1995), 26
C.H.R.R. D/1 at D/16 (B.C.C.H.R.).

[109] Clearly, use of the respondent’s washrooms is a service or
facility customarily available to that portion of the public
admitted to the respondent’s premises, which, on August 25,
included the complainant.

[110] As transsexuals are protected on the grounds of sex and
physical or mental disability, I conclude that the respondent’s
washroom policy discriminated against the complainant on both
these grounds, contrary to §8 of the Code.

[111] I note that the respondent has since changed its policy
concerning the use of its washrooms. While there was evidence
that some customers were displeased, there was no evidence of
undue hardship. I would add that, if any inquiries by an employee
of the respondent need to be made to verify that an individual is
a transsexual in transition, such inquiries must be made in a
dignified, private, and non-confrontational manner, keeping in
mind the immediate nature of the service required.

[112] The second incident of alleged discrimination occurred on
December 31, 1995, when Mr. Stephenson refused admittance to the
complainant because she did not look like her ID.

[113] Considerable evidence was presented on behalf of the
respondent concerning the area in which it is located, its record
with respect to its operation, and the necessity for its strong
identification policy. I am satisfied that there was a reasonable
basis for the respondent’s policy requiring ID and refusing to
admit individuals who did not resemble their ID. I find that the
complainant was refused admittance because she did not resemble
her ID.

[114] The evidence is clear that the complainant changed her
name, obtained a new driver’s licence, and, after February 1996,
was admitted to the respondent after presenting her new ID while
she was still a transsexual in transition. There was no evidence
that the complainant was prevented from borrowing money from her
mother to secure new identification in August of 1995, or
sometime before December 31, while she was living as a woman and
using a female name.

[115] In these circumstances, I do not think that the
respondent’s policy of requiring correct ID can be said to have
had an adverse effect on the complainant because she had ample
time to obtain new ID. While the situation might possibly be
different for a transsexual who has not had sufficient time to
obtain new ID, in the complainant’s circumstances I do not think
that she can reasonably expect to be accommodated by having the
respondent consider her ID in light of the letter from Dr.
Kadziora when, in my view, there was no nexus between her failure
to obtain and present correct ID and the fact that she is a
transsexual. In these circumstances, it is not necessary for me
to determine whether or not the complainant did, in fact, present
the letter from Dr. Kadziora to Mr. Stephenson on December 31,
1995.

[116] I also find that that transsexuals were not singled out for
different treatment with respect to admittance to the respondent.
I am satisfied that, on December 31, 1995, Mr. Stephenson did not
treat the complainant differently than he did other patrons who
did not resemble their ID. Many people were denied admittance
that evening.

[117] I conclude, therefore, that the respondent’s refusal to
admit the complainant on December 31, 1995, was not
discrimination because of sex or because of physical or mental
disability.

REMEDY

[118] Having found that the complaint is justified in that the
respondent discriminated against the complainant contrary to §8
of the Code because of sex and physical or mental disability, I
am required by §37(2)(a) to order the respondent to cease the
contravention and to refrain from committing the same or a
similar contravention. I so order.

[119] The complainant testified that, when she was told by Mr.
Stephenson on August 25 not to use the women’s washroom, she
experienced a “feeling of failure.” She said the incident was
“upsetting and hurtful” and she was “humiliated and
disappointed.” She filed her human rights complaint on February
1, 1996.

[120] I note that the complainant testified that she returned to
the respondent several times between March and May 1996, even
though she knew the washroom policy had not been changed.

[121] Section 37(2)(d) of the Code authorizes me to order the
respondent to pay the complainant “an amount that the member
considers appropriate to compensate ... [her] for injury to
dignity, feelings and self-respect ...” In my opinion, an order
for the amount of $2,000 is appropriate compensation in the
circumstances of this complaint.

^^

ONTARIO
ARREST AND DETENTION

Indexed as: Forrester v. Peel (Regional Municipality)
Police Services Board (No. 2)
Cited: (2006), 56 C.H.R.R. D/215, 2006 HRTO 13
CHRR Doc. 06-299

Paragraphs 1  – 476

Rosalyn Forrester
Complainant
and
Ontario Human Rights Commission
Commission
v.
Regional Municipality of Peel Police Services Board
Respondent
and
Peel Regional Police Association, the Police Association of
Ontario and the Ontario Provincial Police Association Inc.,
collectively the Friend of the Tribunal
Date of Decision: 
May 16, 2006
Before: 
Human Rights Tribunal of Ontario, Mary Ross Hendriks (Vice-Chair)
File Nos.: 
HR-0583-04 and HR-0584-04
Appearances by:
Rosalyn Forrester, on her own hehalf
Amyn Hadibhai and Tess Sheldon (Student at Law), Counsel for the
Commission
Ann C. Dinnert and Michael Kyne, Counsel for the Respondent
Ian Roland, Elaine Craig (Student at Law) and Danny Kastner
(Student at Law), Counsel for the Friend of the Tribunal

ARREST AND DETENTION – discriminatory treatment of transsexual
prisoner – SEX DISCRIMINATION – PUBLIC SERVICES AND FACILITIES –
sex discrimination includes transsexualism – discriminatory
treatment by police service – PUBLIC DECENCY – gender preference
for certain job functions in correctional facility –
INTERPRETATION OF STATUTES – dictionary as an aid to
interpretation – definition of “services”

DISCRIMINATION – intention to discriminate – HUMAN RIGHTS –
nature and purpose of human rights legislation – balancing
conflicting rights

REMEDIES – training on transsexuality – gender of police officer
conducting strip-search – systemic remedies – PUBLIC INTEREST –
remedy consistent with public interest – BOARDS OF
INQUIRY/TRIBUNALS – award public interest remedy – discretion
over awards

Summary: The Human Rights Tribunal of Ontario found that the Peel
Regional Police Services Board discriminated against a
transsexual woman by subjecting her to strip-searches by male
officers.

Rosalyn Forrester self-identifies and has been medically
diagnosed as a transsexual woman. In May and August of 1999 she
was arrested and strip-searched three times by police officers of
the Regional Municipality of Peel. She was strip-searched by male
officers and also given a “split” search performed by male and
female officers, although she requested that female officers
perform these searches. Ms. Forrester complained that she was
discriminated against because of her sex in the provision of a
service.

Before the Tribunal, the Regional Municipality of Peel Police
Services Board admitted that it had unintentionally violated the
Code, and testified that it had already adopted a new Directive
on strip-searching transsexual detainees. The Tribunal proceeded
to hear the matter in order to clarify issues of law, and to
address outstanding issues in the Directive.

The Tribunal found that transsexuality falls within the meaning
of “sex” under the Code. It also found that the services of the
police, including strip-searching detainees, are a public
service. Being strip-searched by male officers was an affront to
the dignity of Ms. Forrester, who identifies as a woman. Further,
although the “split” search – which consists of a woman searching
the upper body and a man searching the lower body of a person who
has male genitalia – was intended to accommodate Ms. Forrester,
it also affronted her dignity and personhood.

Reviewing the Directive developed by the Peel Police Services
Board, the Tribunal set out the elements necessary to an
appropriate strip-search policy for transsexual detainees.
Transsexual detainees must be offered the option of search by
male officers only, female officers only, or a split search. An
individual may self-identify as a transsexual male or female. If
an officer has doubt about the detainee’s self-identification,
the officer must make notes regarding the reasons for the doubt
and may ask specified questions regarding identity documents, how
the person holds themselves out to others, and any medical
diagnosis. If an officer continues to have doubts regarding the
self-identification of the detainee, the officer must defer to
the Officer-in-Charge of the Division for a final determination.
If the detainee becomes a security risk, officers are permitted
to deal with this on an emergency basis, and to maintain order as
they would with any other detainee. In general, officers should
not be permitted to opt out of searches of transsexual detainees.

The Tribunal ordered the Police Services Board to revise its
Directive in light of these findings and to produce a training
video on transsexuality for all the members of its force, in
conjunction with various experts, to be approved by the
Commission. The video is to be shown to existing officers during
parades and to be accompanied by the amended Directive, which
explains the change in policy. Once officers have received their
training, they must sign off on its completion with their
Supervisors. Implementation of this order is to occur within six
months.

The Tribunal remains seized of the matter for a period of twelve
months so that it may deal with any implementation issues that
arise.

See also (No. 1) (2005), CHRR Doc. 05-015, 2005 HRTO 3.

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Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872: 437

Zurich Insurance Co. v. Ontario (Human Rights Comm.), [1992] 2
S.C.R. 321, 16 C.H.R.R. D/255: 413

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11

§7: 437

§8: 437

§15: 437

Criminal Code, R.S.C. 1985, c. C-46

§264(2): 149

§264(2)(b): 2

§810: 47, 149

Public Safety Act, 2002, S.C. 2004, c. 15: 118

Ontario

Highway Traffic Act, R.S.O. 1990, c. H.8: 218

Human Rights Code, R.S.O. 1990, c. H.19

§1: 1, 388, 397

§9: 1, 25, 388, 459, 461

§24(1)(c): 456

§26: 461

§41: 20

§41(1): 419, 421

Rules of Practice, r. 17: 11

AUTHORITIES CITED

Macaulay, Robert W. & James L.H. Sprague, Practice and Procedure
Before Administrative Tribunals (Toronto: Carswell, 1995–): 423,
426

INTRODUCTION

[1] This matter is based on two amended complaints brought under
the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the
“Code”), alleging repeated acts of discrimination in services on
the basis of sex, in violation of ss. 1 and 9. In particular, the
amended complaints include various serious allegations concerning
the manner in which the complainant, a pre-operative transsexual
woman, stated that she was questioned, mocked, incarcerated and
strip-searched following several arrests and transportation to
the (then) Clarence Street Court (Provincial Division), Brampton,
for a bail hearing, where she was strip-searched again. Ms.
Forrester’s strip-searches were performed by male officers, or a
“split” search of her was conducted by male and female officers.
The complainant states that she repeatedly requested female
officers to perform these searches, but that her requests were
denied.

[2] It is incontrovertible that these events stemmed from
repeated complaints made by the complainant’s former common law
spouse to the respondent of harassment and breach of a
recognizance restraining order that prohibited Ms. Forrester from
attending fifty metres from her former spouse’s residence and
from molesting, harassing or annoying her former spouse or child
(Exhibit 6). As a result of these serious new allegations, the
respondent investigated and arrested Ms. Forrester on the charge
of criminal harassment as per §264(2)(b) of the Criminal Code,
R.S.C. 1985, c. C-46. For the record, one of the charges against
Ms. Forrester was later withdrawn on the condition that she enter
into a peace bond, and the other charge was also withdrawn and
she was found not guilty.

[3] These events occurred prior to the decision of the Supreme
Court of Canada in R. v. Golden, [2001] 3 S.C.R. 679, in which it
was held that reasonable and probable grounds are required to
justify a strip-search. Prior to Golden, supra, strip-searches
were routinely conducted by law enforcement officials as a
security measure to find weapons or other illegal substances such
as narcotics in police stations and courthouse holding cells.
Since Golden, supra, there is no dispute that fewer
strip-searches are performed.

[4] As a result of Golden, supra, the respondent issued a
training bulletin in 2002 (Exhibit 42), to advise officers that
strip-searches were prohibited unless there were reasonable and
probable grounds, and added a passage on the strip-searching of
transsexuals, which states as follows:

Strip Searching Transsexuals

Officers have encountered individuals who have been in the
process of changing their outward sexual organs from male to
female. Sometimes these individuals have received breast
augmentation or hormone treatments to increase their breast size.
If there is reasonable grounds to strip-search these individuals,
a female officer should search the top half of the individual and
a male officer should search the genital area of the individual,
as the case may be. Each individual set of circumstances should
be viewed independently. Common sense should dictate, with a view
of maintaining the individuals [sic] privacy and personal
integrity.

[5] Subsequent to the incidents involving Ms. Forrester, the
respondent wrote a specific directive to establish procedures for
conducting searches on transsexuals, which it released on January
15, 2004 (Exhibit 40), and updated on May 14, 2004 (Exhibit 41).
Both directives call for a “split search” of transsexuals,
meaning that, “A male officer is utilized to search areas near
the male genitalia of the body and a female officer is utilized
to search the areas near the female breasts and/or genitalia.”
The latter document required officers to question the person to
be searched, prior to any search being commenced, to ascertain
gender status, and left it to the Officer-in-Charge to make the
final determination about the “degree of gender alteration.” It
was clear from both directives that the male and female officers
must not be in the search room/area at the same time.

[6] At outset of this hearing, the respondent maintained the 2002
policy on split searches was sufficient to meet its obligations
under the Code, and argued that it was more than what other
police forces do to accommodate transsexuals who are being
strip-searched.

[7] Ms. Forrester testified that the two amended complaints
before the Tribunal were both filed on October 6, 2003, and were
referred to the Human Rights Tribunal of Ontario (the “Tribunal”)
for a combined hearing on the merits on February 9, 2004. Her
first amended complaint (Exhibit 2), was dated October 6, 2003,
the original of which was dated July 9, 2000. It concerns
strip-searches that took place on May 28, 1999, and August 12,
1999. Her second amended complaint (Exhibit 18), dated October 6,
2003, involves the strip-search that took place on March 8, 2001,
and was originally filed on September 27, 2001. The Commission’s
Case Profile (Exhibit 19) for the March 2001 strip-search
indicates that Ms. Forrester made initial contact with the
Commission on August 9, 2001.

[8] The complainant had two other amended complaints against the
respondents, dated September 27, 2001, and October 6, 2003, but
these other amended complaints (“amended complaints no. 3 and no.
4”) were not referred to the Tribunal after having been
reconsidered by the Human Rights Commission (the “Commission”).
The Commission stated in one of its reconsiderations at para. 3
that:

There is no evidence to indicate that the police officers were
acting to harass or discriminate against the complainant because
of a prohibited ground. Rather, the evidence indicates that there
were unsuccessful attempts made by police officers to communicate
with the complainant in order to serve her with legal documents,
such as a restraining order. When the attempts to locate the
complainant failed, a warrant was issued for her arrest.

[9] Because amended complaints no. 3 and no. 4 were not referred
to the Tribunal, it ruled in favour of the respondent and
declined to hear from Ms. Forrester and some of her potential
witnesses (who as a result did not appear) as to the emotional
effect and impact to her of these events, even though counsel for
the Commission had made an argument about the cumulative nature
of these incidents.

[10] Pleadings were served and filed by all parties in accordance
with the Tribunal’s Rules of Practice, July 2004. The respondents
denied all of the allegations of discrimination contained in the
Commission’s pleading with respect to the strip-searches
performed on May 29, 1999, August 11, 1999, and March 8, 2001,
and stated that the detentions were valid and legal, that any
strip-searches were conducted in accordance with then existing
law, practice and custom, and further denied that any wrongdoing
took place and that any inappropriate and denigrating remarks
were made to her.

[11] A written motion was made by non-parties, the Police
Association of Ontario (“PAO”), the Peel Regional Police
Association (“PRPA”) and the Ontario Provincial Police
Association Inc. (“OPPA”), through their combined counsel, for
leave to intervene as a friend of the Tribunal, pursuant to r. 17
of the Tribunal’s Rules, supra. This motion was supported by the
respondent, and opposed by the Commission. In an interim decision
dated January 27, 2005, the Tribunal granted the motion and
permitted them to make a single, written submission as a
collective “Friend” of the Tribunal, on prescribed terms, in
recognition of their special contribution to make as the sole
collective bargaining agents for their members restricted to
alleged health and safety risks and the alleged potential for
gender-based discrimination for their members. See: Forrester v.
Regional Municipality of Peel (2005), CHRR Doc. 05-015, 2005 HRTO
3.

[12] The hearing on the merits was held in Toronto on February
14–16, 24 and April 4–8, June 13, 15, 17, July 5 and 7, 2005.

[13] The Tribunal, on consent of all parties and the Friend,
directed that final written submissions be filed by the following
dates: by the Friend by September 12, 2005, on the terms set out
in the interim decision; and by the complainant, the Commission
and the respondent by October 14, 2005. Final oral closing
submissions were heard on October 27, 2005.

PRELIMINARY MATTERS

[14] During the testimony of Dr. Toplack, who is Ms. Forrester’s
psychotherapist, his clinical notes and records of his
counselling sessions with Ms. Forrester were put on the record
(Exhibit 16). Prior to his testimony, Dr. Toplack had personally
deleted part of these notes, based on his own view that they were
irrelevant to the proceeding, and of a highly personal nature to
Ms. Forrester. Counsel for the respondent argued that the
Tribunal needed to know what was in those notes, and that the
respondent had the right to fully explore them, because there
could be critical content contained in them. Counsel for the
respondent noted that since no members of the public were present
at the hearing, these deleted excerpts would not form part of the
public record.

[15] In order to be fair to all parties, the Tribunal ruled from
the bench that it would inspect the original notes that contain
the portions that Dr. Toplack had deleted, and would also allow
counsel for the respondent and for the Commission, as well as Ms.
Forrester herself, to read them but not to photocopy them, so
that Ms. Dinnert in particular could make submissions as to their
relevancy to her client. Dr. Toplack was excused while counsel
made their submissions as to relevancy. The notes contained some
references of a personal but not intimate nature, outlining some
other sources of emotional stress to Ms. Forrester. After some
discussion and argument, on consent of all parties, Dr. Toplack’s
full medical notes and records were entered (Exhibit 17), and
counsel for the respondent was permitted to cross-examine on them
if she so chose.

[16] At the outset of the final closing submissions and after a
lengthy hearing that included numerous witnesses, counsel for the
respondent, who was very capable and had been cordial and
fair-minded throughout the proceeding, surprised the Tribunal by
explaining that her client had had an epiphany of sorts. The
respondent admitted liability under the Code, stating that it had
unintentionally discriminated against Ms. Forrester. The
respondent also advised the Tribunal that it had settled with Ms.
Forrester with respect to remedy, and that the only issues left
to be resolved involved public interest remedies.

[17] Counsel for the respondent asked the Tribunal to forego
issuing a final decision, and asked the Tribunal to allow it to
issue voluntary guidelines instead and provided it with a draft
version of its proposal along with its final written submissions.
Perhaps most surprisingly, the respondent had invited the
Commission’s expert witnesses on training the police and military
about transsexualism, Ms. Cousens and Ms. Durand, to participate
in their plans to provide education on transsexualism to new
recruits and had invited Ms. Forrester to join their outreach
group.

[18] Counsel for the Commission was also highly professional,
capable and collegial throughout the hearing. Ms. Forrester was
very courageous to come forward and testify about intimate
issues, family problems, and at times, clearly humiliating
incidents, that involved her being repeatedly strip-searched as a
transsexual woman. She, too, conducted herself very well on her
own behalf.

[19] Although clearly adverse in interest, all the parties and
the Friend behaved with the utmost courtesy and respect
throughout the hearing, which resulted in a willingness to put
aside many of their differences in order to craft numerous
aspects of a meaningful solution for others going forward.

[20] Ms. Forrester agreed to work with the respondent as a
resource and an informal liaison, but suggested they include
others in the trans community to join their outreach group
because she does not feel she should speak for everyone. Both Ms.
Forrester and Commission counsel agreed with counsel for the
respondent that most of the critical issues had been resolved,
but urged the Tribunal to comply with the spirit and purpose of
§41 of the Code and render a final decision on the unresolved
public interest remedies. Counsel for the Commission aptly
pointed out that it would be a regrettable outcome for the
Commission to have been so successful on a case that the Tribunal
refused to issue an order.

[21] Alternatively, counsel for the respondent asked the Tribunal
to write an “inspirational decision,” which will hopefully be
followed by other police forces across the province that are not
parties to this proceeding and that do not have a specific policy
dealing with searches conducted on transsexual persons. She
further advised the Tribunal that the Friend endorsed this
suggestion.

[22] Upon reflection, the Tribunal advised the parties that it
would reserve on the outstanding public interest remedies and
issue a final decision, so that the outcome of this proceeding
would be binding on the parties involved, and that it would
strive to issue a decision that is hopefully inspirational to
other police forces across Ontario which may lack policies on
searching transsexual persons, recognizing that the other police
forces are not bound by the outcome of this matter.

[23] The Tribunal sincerely appreciates the remarkable good will
and generosity of spirit of all the parties and the Friend in
trying to further the needs of society after having engaged in
such extensive litigation. Because of the very unique
circumstances of this case, the Tribunal has spent a considerable
amount of time weighing all of the evidence heard, so that the
findings of fact and law it makes support the public policy
remedies ordered.

ISSUES

[24] The Tribunal considered the following remaining issues:

(1) Should the respondent be required, as it has voluntarily
proposed, to give a male or female transsexual a choice of being
searched by a male or female officer or given a split search?

(2) If there is any dispute between the officer and the detainee
about whether or not the detainee is transsexual, should the
detainee have to answer some prescribed questions in order to
validate his or her commitment to transitioning and to eliminate
potential false claims?

(3) If there is a dispute between the officer and the detainee
about the validity of the detainee’s self-disclosure as a
transsexual, who should make the final decision prior to the
search, the Officer-in-Charge, or the detainee?

(4) If an officer is of the same sex as the transsexual detainee,
and the officer feels uncomfortable performing the search, can
that officer “opt out” without sanction if another officer of the
same sex is available to perform the strip-search without delay?

(5) Should the proposed education and training for new officers
on performing strip-searches on transsexuals be extended to
include all existing officers? If so, how?

DECISION

[25] The respondent has admitted that it has unintentionally
violated the Code, which the Tribunal hereby finds. The
outstanding public interest remedies are contentious and require
an order to resolve them, as a matter of fairness. The respondent
must provide transsexual detainees with a choice of the sex of
the officer who strip-searches them, as it has volunteered to do.
If there is a serious dispute as to the validity of a detainee’s
self-identification as a transsexual, the respondent is permitted
to ask prescribed questions under strict conditions, and the
final decision prior to the strip-search shall be made by the
Officer-in-Charge. In an emergency situation, the officers may
put safety considerations first. Finally, the “opt out” requested
by the respondent for officers who feel uncomfortable performing
a strip-search is not permitted in the normal course, because it
violates §9 of the Code by establishing an indirect “chain of
discrimination.”

LIST OF WITNESSES

[26] The Tribunal heard evidence from twenty-seven witnesses,
being the complainant, two medical experts who specialize in
transsexuality, Dr. Leah Steele and Dr. Andrew Toplack, two
transsexual women with distinguished military and police careers
who have provided training and leadership to, inter alia, the
Canadian Armed Forces and to the Ottawa Police Service, and from
twenty-one police officers who had contact with the complainant,
as follows:

(1) Rosalyn Leslie Forrester, complainant, who testified on
February 14, 15, 24, 2005

(2) Dr. Leah Sharon Steele, Ms. Forrester’s family physician
between June 2000 and July 2004, and who was a staff physician at
the 410 Sherbourne Street Health Centre, affiliated with St.
Michael’s Hospital, between 1998 and July 2004 and who has
treated many transsexual patients who testified on February 15,
2005

(3) Dr. Andrew Toplack, G.P. psychotherapist who provides
psychotherapy to Ms. Forrester and to other transsexuals within
his practice, who testified on February 16, 2005

(4) Retired Police Officer Cynthia A. Cousens, well-decorated as
an officer, lecturer, and advisor to the Ottawa Police Service,
who testified on April 4–5, 2005

(5) Warrant Officer Sylvia Durand of the Canadian Armed Forces,
regular lecturer and a Shaman of the Huron-Wendat First Nations,
who testified on April 5, 2005

(6) Ms. Jennifer Jewell, close friend of the complainant, who
testified on April 6, 2005

(7) Officer Mark Fischer, who tried to arrest Ms. Forrester on
May 25, 1999, and who testified on April 6, 2005

(8) Constable Kevin Willson, who arrested Ms. Forrester on May
29, 1999, and who testified on April 6, 2005

(9) Detective Sergeant Marcella Rocha, who ordered the “split”
search on May 29, 1999, and who performed part of it and who
testified on April 7, 2005

(10) Constable Jay Hodgson, who was involved on May 29, 1999, and
who testified on April 7, 2005

(11) Special Constable Terry Magill, involved on May 29, 1999,
and who testified on April 7, 2005

(12) Special Constable Garth Huxtable, involved on May 29, 1999,
and who testified on April 7, 2005

(13) Supervisor Barry Dale, involved May 29, 1999, and who
testified on April 8, 2005

(14) Supervisor George Brian Barrett of the Prisoner Escort
Bureau, who was involved in the August 12, 1999, search, and who
testified on April 8, 2005

(15) Officer Mark Gordon, who was the special escort for Ms.
Forrester provided by the respondent for Ms. Forrester’s bail
hearing, who testified on June 13, 2005

(16) Constable Jennifer Mormile, who testified on June 13, 2005

(17) Special Constable Chuck Boersma, who testified on June 13,
2005

(18) Constable Andrew Wyatt, who signed the release form of May
29, 1999, and who testified on June 15, 2005

(19) Prison Escort Officer Steven Paiva, who testified on June
15, 2005

(20) Police Constable Jodi Dawson, who was one of the arresting
officers on March 1, 2001, who testified on June 15, 2005

(21) O.P.P. Police Officer Ralph Jeanty, who testified on June
17, 2005

(22) Special Constable Paul Bricknell, who testified on June 17,
2005

(23) Staff Sergeant Watson, who was in charge of 11 Division when
Ms. Forrester was brought in for booking on March 8, 2001, and
who testified on July 5, 2005

(24) Constable Kyle Binkley, who testified on July 5, 2005

(25) Constable Perkins, who was an escorting officer on March 8,
2001, and who testified on July 5, 2005

(26) Constable Aaron Sveda, who was the primary arresting officer
on March 8, 2001, and who testified on July 5, 2005

(27) Constable Dennis Edwards of the Race and Ethnic Relations
Bureau of Peel Regional Police, who testified about the
respondent’s education, training and diversity programs on July
7, 2005.

SUMMARY OF RELEVANT EVIDENCE

[27] Since the issues of liability and remedy have now been
resolved between the parties and the only issues remaining are
related to public interest remedies, the Tribunal has summarized
the relevant evidence, below, with a view to setting appropriate
public interest remedies, rather than on making findings of
credibility and reliability of the parties pertaining to the
specific details of each incident alleged.

Rosalyn Forrester

[28] Ms. Forrester is a 43-year-old Black, lesbian, pre-operative
transsexual woman, who lives in Mississauga. She is no longer
with her common-law partner, with whom she had two children prior
to commencing her formal gender transition. The children live
with their mother, and Ms. Forrester remains an involved parent
of her two daughters.

[29] Ms. Forrester testified that she was diagnosed with Gender
Identity Disorder (“GID”) in early 1997, although she said she
felt “confusion in my head” about her gender from childhood
onward. She said that she did not like seeing her “reflection” in
a mirror growing up, and realized later that she had torn up her
childhood photographs because she could not recognize herself in
that image. She said that she still does not feel comfortable
about seeing herself nude in the shower. She testified that she
took time, “accepting what I’ve known and struggled with since I
can remember.”

[30] Ms. Forrester testified that she “came out” in 1998. She
testified that her attraction to women rather than men actually
furthered her feelings of confusion, since she was puzzled about
why she felt she was a woman and yet attracted to women. It was
during counselling that she accepted that she is a transsexual
lesbian and has more recently identified herself as a “femme,” as
opposed to what she described as “butch” or “andro.” She stated
during cross-examination: “I am a woman.”

[31] Ms. Forrester testified that she has another complaint
before the Tribunal concerning government funding of
sex-reassignment surgery (“SRS”). She was cautioned by the
Tribunal not to discuss this other matter during her testimony.

[32] She legally changed her name to Rosalyn Leslie Forrester in
April 1999 from her birth name, Howard Spencer Forrester. Her
oldest daughter and her friends call her “Leslie.” She said that
she has changed most of her identification documents, but
testified that she cannot change her OHIP card and her driver’s
licence until she has had SRS. She said that she is disabled and
that she receives benefits from the Ontario Disability Support
Program (“ODSP”).

[33] Ms. Forrester is an activist, has written a column in a
newsletter, “Mommy Queerest” (Exhibit 27), was a founding member
of the Trans Day of Pride, and has a website for transsexuals at
www.ctffr.org. The National Post interviewed her a few years ago
concerning her custody issues.

[34] Ms. Forrester testified that because of ongoing difficulties
with her former common-law spouse, a number of complaints were
made about her, causing the respondent to question, arrest and
detain her repeatedly and perform the contentious strip-searches.

[35] Ms. Forrester testified that during the arrest of May 29,
1999, in an effort to accommodate her request for a female
officer to strip-search her, during the first search that day,
the respondent provided her with a “split search,” thus a male
officer searched her from the waist down and a female officer
from the waist up. She confirmed the information contained in a
police email that said she had advised them she was “half-way
through a sex change” and also confirmed the information in that
police email that at the time of the search, she was wearing a
sweatshirt with a bra underneath it (Exhibit 10). She cooperated
but felt humiliated to be seen by male officers, and testified
that she cried. She recalled being searched from the waist up by
a female officer that someone referred to as “Sergeant.”

[36] Now that the respondent has admitted liability and itself
proposes that only female officers search female transsexuals,
with the caveat that a replacement female officer be permitted
where one is available should the first female officer feel
uncomfortable, the Tribunal does not need to make any findings of
credibility about whether or not Ms. Forrester had actually
agreed to the split search at the time, since it is now of no
consequence, nor does it need to make a finding of credibility
about whether or not Ms. Forrester had barricaded herself inside
the store in which she worked at the time of this arrest, which
was a further factual issue originally in dispute.

[37] Ms. Forrester testified that the second search conducted on
May 29, 1999, occurred at the (then) Clarence Street Court
(Provincial Division), Brampton,1 later that same day. She said
that this search was conducted by all male officers even though
she asked for a female officer to perform it and said that she
had had a female officer search her earlier. She stated that she
was searched by four male officers, and that they had to take her
top off because she refused to remove her clothes.

[38] She said that they stood back, stared and snickered. Ms.
Forrester testified that one of the officers said, “So what are
you?” She said another officer made a comment about
“transvestites.” She said that one of the officers told her,
“Well, you’d better get used to it, because it’s going to happen
again today.” She felt despondent and her voice broke when she
testified that, “I felt like ending it.” Again, the Tribunal no
longer needs to assess the credibility of the parties, who gave
very different accounts of the manner in which she was treated by
the respondent, and whether or not she agreed to the split search
she was given.

[39] Fortunately, her bail hearing took place, and she was
released to her former doctor’s custody. When asked how she felt
about this incident, she said that it made her feel like she had
been “raped, sexually assaulted,” and added that she felt, “like
a freak in a zoo so they could stand there and go, ooh, ooh.”

[40] During the third relevant strip-search conducted prior to a
scheduled remand date at court in order to change her surety from
her former doctor, which occurred on August 12, 1999, only male
officers conducted her strip-search. Ms. Forrester testified that
the six male officers made demeaning comments to her, such as,
“oh, you liked it last time, you didn’t mind last time,” and “you
still have a dick so we can still search you.” She said that the
male officers had to take her clothes off her in order to search
her, and that they slammed her against a wall. She said that when
the search was finished, she was put in a cell, and that the
officers did not offer her any lunch when they fed the others.
She testified that she broke down in her cell, feeling
“completely done in.”

[41] During cross-examination, it became quite apparent that the
reason why Ms. Forrester’s former doctor had asked to be relieved
as her surety was not due to her retirement, as originally
described by Ms. Forrester, but because her former doctor had
lost confidence in her. Her former doctor did not testify. This
evidence was clearly very painful for Ms. Forrester to provide.

[42] There were also some inconsistencies in her testimony
concerning the number of officers who performed the strip-search,
varying in number from six in her testimony in chief, to four to
five during cross-examination, and two to three in her amended
complaint, dated October 6, 2003 (Exhibit 18 at para. 10). The
Tribunal also observed some unexplained silences or
inconsistencies in her description of the manner in which the
officers removed her clothing during the strip-searches. In
particular, the Commission’s Case Profile (Exhibit 19), provided
the following under “description of contact”:

... On March 9, 2001, C., a transsexual woman, was arrested by
the police. At the courthouse, C. was strip-searched by 3 male
guards. C. requested that a woman perform the search, but the
police refused to have a woman perform the search.

[43] When asked why the Case Profile failed to mention her
allegations that the police tore her clothing off and bruised
her, she could not explain why. Ms. Forrester attributes all of
these inconsistencies to not having read her amended complaint
(Exhibit 18) and not having her old notes with her while
testifying.

[44] Ms. Forrester was arrested again on March 8, 2001, at 5:00
a.m., for breach of the court order not to molest, harass or
annoy her former spouse or child (Exhibit 23). She said that she
was taken to 11 Division and held for a bail hearing. At that
time, she said that male officers searched her, despite her
request for a female officer. She said that four or five officers
slammed her against the wall and tore off her top, bruising her
in the process. She said that her mother posted bail.

[45] She was released by a Justice of the Peace, on conditions,
including a prohibition on contact with her former spouse. She
identified a motion record filed by her former spouse seeking a
variation of the custody and access provisions of a previous
court order, based on these allegations (Exhibit 24). She said
that her (then) fiancée picked her up, and that out of fear, she
went into hiding.

[46] She testified that she “turned myself in” accompanied by her
lawyer on March 18th, at which time she was given a split search,
arranged by her lawyer. She said that more derogatory comments
were made by the officers, such as “hey, that’s a guy,” and that
the male officers said to the female officer conducting part of
the search, “I guess you drew the short straw.” She said that the
charges against her were withdrawn and that the Crown counsel was
apologetic.

[47] Counsel for the respondent checked their records, and
confirmed Ms. Forrester’s evidence that there were two charges of
May 29, 1999. One was withdrawn, on the condition that she enter
into a §810 peace bond under the Criminal Code, supra, done
without any admission of liability or guilt, and the second
charge against her was also withdrawn, and so she was found not
guilty. She had to appear in court on August 12, 1999, only to
replace her surety; it was an appearance only and no charges had
been laid.

[48] Presciently, Ms. Forrester testified that when she went to
the hospital in May 2004 with a ruptured appendix, she had a
positive experience at the hospital in terms of their
“professional” approach to her transsexuality, and she wished
that the police would adopt such an approach as well. To their
great credit, after hearing all of the evidence, the police and
the Friend did indeed adopt a progressive outlook without being
ordered to do so.

Dr. Steele

[49] Dr. Steele graduated from McMaster University’s Faculty of
Medicine and obtained her Ph.D. from the University of Toronto’s
Faculty of Health Policy and Management, Clinical Epidemiology.
She was awarded a post-doctoral Fellowship in Health Systems
Research, from the Centre for Addiction and Mental Health, and
other prestigious training grants in health care research
(Exhibit 11 is her Curriculum Vitae).

[50] After being examined and cross-examined on her professional
qualifications and on the nature of her practice, the Tribunal
accepted Dr. Steele as an expert on health issues faced by
transsexuals.

[51] Dr. Steele was Ms. Forrester’s family physician from June
2000 until July 2004, when she ended her clinical practice as a
staff physician at the 410 Sherbourne Street Health Centre
(“Sherbourne Centre”) in Toronto, at which time she transferred
Ms. Forrester to another physician at that clinic. The Sherbourne
Centre is affiliated with St. Michael’s Hospital, and it is one
of two key medical centres for transsexuals.

[52] While she was at the Sherbourne Centre, she treated about
twenty-five to thirty transsexual patients as a primary care
giver. She now spends three-quarters of her time conducting
research and teaching on “inter-city issues” such as “access to
mental health care for marginalized populations,” particularly
“lesbian health issues and other sexual minorities,” at the
Centre for Addiction and Mental Health (“CAMH”), formerly the
Clarke Institute, and one-quarter of her time practising medicine
at Sioux Lookout and Manitoulin Island.

[53] She reviewed her clinical notes (Exhibit 13), and testified
that Ms. Forrester came to see her on March 12, 2001. She had
been having “a really good three days” and then was arrested for
violating a court order. She reported to Dr. Steele that she had
been “roughed up” by the police and forcibly searched by three
male officers. She presented a bruise on her left deltoid muscle
on her shoulder, which Dr. Steele testified she saw and said was
about two centimetres by four centimetres in size, and turning
yellow. Ms. Forrester’s depression had been doing well, but this
was a situational crisis, and Dr. Steele asked her to follow up
with her in a week, because she told Dr. Steele that she was
worried that she would harm herself. Ms. Forrester told Dr.
Steele that she would surround herself with friends and family
and agreed to call Dr. Steele if she became worse.

[54] She returned on March 19, 2001, and Dr. Steele testified
that Ms. Forrester was letting go of her anger and was no longer
depressed and suicidal. She explained that Ms. Forrester was
“compounded with anxieties” and had “worry that she’d be harassed
or killed by the police.”

[55] Dr. Steele testified that she was aware of Ms. Forrester’s
previous suicide attempts. At one point, Ms. Forrester’s
depression was not adequately treated and she was self-medicating
with alcohol, although Dr. Steele said that this was no longer an
issue, stating, “she responded very well to anti-depressants
within four to six weeks.” Dr. Steele testified that she referred
Ms. Forrester to Dr. Toplack for psychotherapy.

[56] During the four years she was Ms. Forrester’s physician, she
testified that she saw Ms. Forrester about once or twice per
month. Her focus of treatment was on Ms. Forrester’s
transsexuality and GID, which had been previously diagnosed, i.e.
maintaining her hormone therapy, chronic pain, insomnia, and
referred to a therapist for her mood disorder (which includes her
depression) and her social anxiety. It was clear from Dr.
Steele’s evidence that Ms. Forrester’s social anxiety disorder
includes a particular fear of the police, of going back to court,
a fear of transphobia generally, and a fear of being assaulted
while riding on the Toronto Transit Commission (“TTC”).

[57] In particular, Dr. Steele made a note on March 19, 2001,
that stated, “fear of police compounding social anxiety.” In
particular, her anxiety about going outside was made worse
because of her fear of the police. Many of her transsexual
patients experience transphobia, which is similar to homophobia,
meaning that they are shunned or even assaulted. As a result,
their social functioning becomes difficult. They are often
socially isolated, and may feel different or rejected by others,
which extends to feelings of stigmatization and a higher rate of
suicide. Dr. Steele also said that they may develop different
coping mechanisms, which include fighting back or feeling
defeated.

[58] Dr. Steele testified that she is familiar with the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, published by the American Psychiatric Association
(“DSM-IV”), and identified an excerpt from it regarding Gender
Identity Disorder (“GID”) (Exhibit 12). She reviewed the major
criteria for a diagnosis of GID, which are set out at p. 581 of
the DSM-IV:

a) A strong and persistent cross-gender identification (not
merely a desire for any perceived cultural advantages of being
the other sex).

b) Persistent discomfort with his or her sex or sense of
inappropriateness in the gender role of that sex.

c) The disturbance is not concurrent with a physical intersex
condition.

d) The disturbance causes clinically significant distress or
impairment in social, occupational, or other important areas of
functioning.

[59] In her evidence, Dr. Steele explained why, in her view as a
clinician, Ms. Forrester meets the criteria for GID, as follows:
she has a strong and persistent identification as a woman; she
has a persistent view that the male role is inappropriate for
her; she is not intersexed; her condition causes her great
distress and has markedly affected her social relationships.

[60] The terms “transsexual” and “GID” are often used
interchangeably; however, Dr. Steele explained that a person
could identify as being transsexual and not have GID, because
being transsexual does not cause him or her significant distress
or impairment. As she put it, “everyone with GID is transsexual,
but not all transsexuals have GID.”

[61] Dr. Steele stated her view that there is a great deal of
distrust in the trans community because of the history of
stigmatization that sexual minorities face and what she terms as
the “pathologizing of their reality by the psychiatric
community.”

[62] Dr. Steele testified that Ms. Forrester feels real distress
about her body, since it does not represent her gender to her.
Dr. Steele explained that this is the hallmark of GID, since
persons with GID have discomfort with their biological sex, and
feel it is very inappropriate for their gender. They often report
disgust with their genitalia, and have a strong desire to have it
removed. This strong feeling of discomfort with their biological
sex and negative body image are persistent throughout their
lives.

[63] It is sufficiently serious that when Dr. Steele needs to
give a trans patient a routine physical examination, she weighs
the need for a full examination against the risks associated with
very major distress. For example, she said that male-to-female
transsexuals require prostate examinations to be performed after
a certain age, and female-to-male transsexuals require pap smears
and breast examinations, but to perform such examinations causes
“great distress across the board, and this is true ninety-five
percent of the time.” Prior to conducting such examinations, she
gives them a great deal of counselling about the benefits of the
examination, gives them a lot of support, and it is done with
great sensitivity. Often, she does not do the entire examination.

[64] Although she is Ms. Forrester’s family physician, she does
not believe she has ever examined Ms. Forrester’s genitalia,
since it is a major area of discomfort to her, so Dr. Steele said
that she “deferred it indefinitely.”

[65] She testified that when she performs a physical examination
on a transsexual patient, she does so with “great sensitivity”
since they are “more at risk for psychological trauma when they
expose their genitals. “

[66] On this point, Dr. Steele referred to an article published
in the July 2003/Volume 86 issue of Minnesota Medicine by the
Minnesota Medical Association, entitled, “Transgender Health”
(Exhibit 14). She testified that this publication is a
lesser-known peer-reviewed journal that appears in Index Medicus.
She quoted extensively from pp. 2 and 3, and highlighted the
questions suggested for the medical profession as useful for the
police when conducting strip-searches of transsexuals, which
state:

The social stigmatization of transgender identity and behavior
leads many transgender individuals to maintain a traditional
gender role while keeping their transgender identity closeted.
Individuals may be uncomfortable with their bodies and lack
access to sensitive and knowledgeable providers; this can result
in their avoiding medical care. Many do not have a primary care
physician or access to preventive health services ... 

The transgender patient may present in a variety of ways. The
“closeted” transgender patient may reveal cross-dressing behavior
or avoidance of elements of the physical exam, such as pelvic or
testicular exams. A diagnosis of gender identity disorder (GID)
may be appropriate in patients who exhibit distress regarding
their bodies, particularly about primary or secondary sex
characteristics. GID is characterized by a strong and persistent
cross-gender identification, accompanied by persistent discomfort
with their sex or sense of inappropriateness in the gender role
of that sex ... 

Patients best explore transgender issues in a setting of respect
and trust. This requires using the appropriate names and
pronouns, reassuring the patient about confidentiality, educating
clinic staff and colleagues regarding transgender issues, and
respecting the patient’s wishes, whenever possible, regarding
potentially sensitive physical exams and tests (such as pelvic
ultrasounds or mammograms). With most patients, open and caring
communication is all that is required ... 

Transsexuals and other transgender persons often utilize hormonal
or surgical interventions to bring their bodies into greater
congruence with their gender identity. Thus, a thorough history
of transgender-specific interventions is essential. (For many
nontranssexual transgender patients, hormones and surgery are
less of a concern, and the portions of the history related to
hormone use will be brief.) Elements of a transgender-specific
history should include the following questions:

1. Have you undergone sex reassignment surgery or other
feminizing/masculinizing procedures? If not, do you plan to
pursue surgery in the future?

2. Are you currently on cross-gender hormones? Which ones and for
how long? Have you had any complications or concerns? Have you
used hormones in the past? If not, do you plan to pursue hormone
therapy in the future?

3. Are you seeing a therapist? Does she or he specialize in
gender and/or sexual health issues?

[67] In her opinion, transsexuals should be given a choice of the
sex of the person who examines them, and such examinations should
be done in a setting of respect. She added that because of the
high levels of sexual abuse and assault that they suffer,
transsexuals often feel less threatened if women search them.

[68] Dr. Steele testified that in terms of police searches,
although split searches are conducted with good intentions, they
do not solve the problem of the major distress at having to
expose one’s genitals, especially if pre-surgical. Dr. Steele
believes that transsexuals who are given a choice are better able
to preserve their dignity. Prior to testifying, Dr. Steele asked
her colleagues who regularly treat transsexuals what they
thought. She said that her colleagues thought that, in most
cases, both male-to-female and female-to-male transsexuals would
prefer to be strip-searched by a woman.

[69] When asked how a lay person is to know if someone is a
transsexual or not, Dr. Steele suggested three ways to know if
the person does not “pass,” being: (1) if he or she looks like a
transsexual, ask questions to confirm that status; (2) have the
person disclose his/her status to you; (3) respectfully ask and
obtain an answer. Dr. Steele said that other than asking him or
her, there is no way to independently verify the information. She
added that many transsexuals may not have had sex reassignment
surgery, and in fact added, that the vast majority of
female-to-male transsexuals do not have the lower surgery.

[70] Dr. Steele explained that a transvestite, now referred to as
a cross-dresser, is not a transsexual, because he is a man who
dresses up and does not intend to transition. She noted that the
term “transgendered” is more of an umbrella term, encompassing
transsexuals, cross-dressers and intersex persons, and added that
it “is not unreasonable to want transsexuals to self-disclose if
the police want to apply a policy to transsexuals and not to
others who are a sexual or gender minority.”

[71] Dr. Steele testified that the police should ask them how
they identify and what sex officer would they prefer for the
strip-search. She would not suggest split searches, because she
believes they pose a risk of inordinate psychological harm. She
believes that if Ms. Forrester requested the split search, it is
because to her “it would be the lesser of two evils.”

Dr. Toplack

[72] Dr. Andrew Joseph Toplack also testified as an expert
witness on this matter. He studied medicine at the University of
Western Ontario and graduated in 1975. He completed his training
in psychotherapy in 1985. He has worked exclusively as a family
doctor/psychotherapist for twenty-two years, and devotes his
practice to providing therapy to his patients (Exhibit 15 is his
Curriculum Vitae). He wrote a book review on “Transgender
Emergence” for a journal, Transgender Tapestry, which is read
extensively by members of the trans community. He has provided
therapy to five to ten trans patients for about twelve years, and
testified that he has worked with more trans patients than most
psychotherapists.

[73] Dr. Toplack has read extensively on mental health issues
facing transgender and transsexual persons. He testified that the
literature on transsexuality is quite recent, and said that, “the
situation in terms of knowledge is improving, but there is an
appalling lack of knowledge and experience” available. He said
that knowledge of transsexuality outside of the medical community
is even less.

[74] He testified that Ms. Forrester has been seeing him about
once every two to four weeks since September 2000. His role is
predominantly supportive and that he is a “sympathetic listener.”
He has provided her with psychotherapy to help her cope with
anxiety issues surrounding her transition. Dr. Steele had
prescribed Ms. Forrester with Zoloft prior to her referral, and
so Dr. Toplack “left prescribing in her hands. “ He testified
that anxiety issues are very frequent in trans patients
undergoing their transitions.

[75] Counsel for the respondent was prepared to accept Dr.
Toplack as an expert, subject to some limitations she might have,
and the Tribunal qualified him as an expert on the mental health
issues facing transsexual persons.

[76] Dr. Toplack explained that the term “transgender” refers to
those persons who feel they have some question about where they
fit within the gender continuum, when they feel they do not fit
neatly into the male or female categories. The term “gender”
refers to the societal construct whereby through behavioural,
social, and psychological means a person is determined to be male
or female, or someplace in between or other. While gender is a
societal construct, since gender roles are determined by society,
a person’s gender identity is a personal feeling about where one
fits in, based on one’s personal experience, and whether the
person is male or female, somewhere in between, or other.
“Sexuality” refers to who someone wants to have sex with, i.e.
the sex of the desired person or object. Whereas the term “sex”
refers to the biological classification based on external
genitalia, which includes persons who are clearly male or female
or intersex, since the latter are between the two sexes, intersex
is a physical manifestation, of having both anatomical features,
e.g., both ovarian and testicular tissue, for example. Intersex
is different than transsexual. A transsexual is a person whose
inner experience is at odds with his anatomical sex. The medical
term for transsexuality is Gender Identity Disorder.

[77] Dr. Toplack is very familiar with GID as described in the
DSM-IV (Exhibit 12), and testified that he has confirmed the
diagnosis of GID for Ms. Forrester. In his evidence, he explained
that she meets the criteria for GID “very well,” since she has a
strong and persistent cross-gender identification; a strong
desire to live as the opposite sex; a persistent discomfort with
her sex and her genitalia; and she has expressed significant
distress over it.

[78] Dr. Toplack first began counselling Ms. Forrester in
September 2000, approximately once or twice per month. His
clinical notes and records were entered into evidence (Exhibits
16 and 17). His focus has been to provide her with support
through a difficult time over the last four and one-half years.
She has trouble with anxiety issues, especially being in public,
and also suffers from depression.

[79] When Ms. Forrester first started seeing Dr. Toplack, trust
was a “very big issue.” He testified that she was not doing well
going new places, had “experienced a worsening of social
isolation” and had been through two suicide attempts. During
their September 14, 2000, session, it was clear to Dr. Toplack
that Ms. Forrester feels paranoid because she thinks people are
laughing at her, especially on the TTC, is anxious around
teenagers, dislikes or hates men, and feels uncomfortable when
they sit beside her.

[80] During their September 14, 2000, session, she told him about
the six male officers who took her clothes off. She had been
arrested by the police because of charges from her former spouse,
and Ms. Forrester had told Dr. Toplack that six male officers
took her clothes off, which made her feel very “uncomfortable
around men.”

[81] Dr. Toplack’s clinical notes from March 12, 2001, March 22,
2001, and April 23, 2001, all reflect Ms. Forrester’s “paranoia”
(first notation of this was in his notes on September 14, 2000,
when Ms. Forrester diagnosed herself correctly and said, “I
become paranoid ... “); and at times, “severe anxiety,” about the
police after she was arrested for breaching her recognizance and
for a while, lost the ability to see her daughter, the latter
being traumatic for Ms. Forrester. In his notes, Ms. Forrester
had told him that, “I knew I was a target for the police.”

[82] It was clear from his clinical notes that Ms. Forrester’s
relationship with her former spouse was a major factor in her
emotional turmoil and difficulties with the police. Dr. Toplack
described how Ms. Forrester suppresses her feelings and avoids
discussing what happened with the police. During her May 20,
2002, session, Ms. Forrester was depressed and having suicidal
thoughts, and described the police as being her former spouse’s
“private army.”

[83] In terms of how transsexuals feel about their bodies
generally, Dr. Toplack testified that while there is variation
between individuals, they are consistently very self-conscious.
While they are transitioning to the bodies and appearance they
desire, they are “very, very frightened and anxious in public
situations and have bouts of severe depression.”

[84] Dr. Toplack explained that while most people grow up to be
the gender we feel inside ourselves, and learn all the myriad of
details along the way, transsexuals “learn it all as adults and
without a net,” in a society that is “generally not terribly
understanding, compassionate or sympathetic” and that they
“experience quite a bit of criticism and anger on the part of
other people.”

[85] Dr. Toplack testified that their feelings about their
genitalia are on a spectrum. At one end, they feel their genitals
are inappropriate for them, and at the other end, they have
feelings of extreme hatred and disgust for that part of their
bodies. Dr. Toplack suggested that transsexuals be strip-searched
only when “absolutely necessary because they are extremely
self-conscious” about their transition, and asked that it be done
with “a lot of care.” He thought that transsexuals should be
offered their preference of the gender of the officer doing the
search. He admitted that he has no experience with police
strip-searches, and that he has no knowledge of them, “other than
what the name implies.” He was unaware that the respondent had
offered Ms. Forrester a choice at one point, stating that he was
“not aware either way.” His other transsexual patients have not
been strip-searched. He based his opinion as a psychotherapist
attending transsexual patients who are going through transition.
He agreed that he was not familiar with the concerns of police
officers who conduct strip-searches.

[86] When asked to compare the level of self-consciousness of
transsexuals to non-transsexuals, he said he was not even certain
he could compare them, and described them as “apples and
oranges,” because the level for transsexuals is “dramatically
higher,” because the “risks they are taking in our society are
huge.” They are very aware of their bodies, and during
transition, are very concerned about their “fit in society” and
“whether they pass or not.”

[87] In his view, being strip-searched by a male officer is just
as traumatic, if not more so, for a transsexual woman compared
with a genetic woman. Dr. Toplack explained that for transsexual
women, it would be “shaming and degrading,” because of their
“discomfort with all aspects of their bodies that have not
transitioned.” Thus, he reiterated his recommendation that
transsexuals be asked their preference of the sex of the officers
who strip-search them. He suggested that the safety requirements
that the police face, for example, the risk that the prisoner may
have a weapon, be balanced with sensitivity, hence his view that
transsexuals should be given a choice of the sex of the officer
who strip-searches them. He referred to his notes where Ms.
Forrester said that she had felt like a “guinea pig” in terms of
the strip-searching conducted by the police. Dr. Toplack rejected
the notion of a split strip-search as being objectively
equitable, pointing out that the “most important reality is the
gender identity and not the external genitalia,” so a split
strip-search is not equal treatment “from that point of view.” He
added, “to treat transsexuals with equality, we have to listen to
their gender identity because otherwise we get lost in what we
see physically.”

[88] In terms of how the police could verify that someone is
transsexual, Dr. Toplack recommended that the police allow
transsexuals to identify themselves, or he suggested that the
police bring in a clinician to diagnose the individual. He said
that it was “not a good idea” for the police to make the
diagnosis. He also suggested that a transsexual could carry a
signed doctor’s note, explaining the diagnosis of GID, to show
the police and others where necessary. He acknowledged that there
could be times when the police might have to make an assessment
and a judgment about the truth of a person’s self-declaration as
a transsexual, noting that it is a rare condition and that there
are not many transsexuals in society for the police to encounter.
He added that self-identifying as transsexual is “a label I don’t
think many people who are non-transsexual would choose.” Dr.
Toplack noted that an officer could objectively determine if
someone is transitioning because of the external development of
breasts.

[89] Dr. Toplack explained the difference between a cross-dresser
and a transsexual. He said that “classically speaking,” a
cross-dresser dons clothes of the opposite sex for sexual
pleasure, a feeling of comfort, as a short-term experience with
no inclination of changing his or her anatomical sex at all. In
contrast, a transsexual is someone who has a strong inner sense
and conviction of being a certain sex, and wants the external
body to be in sync with the inner gender identity. A
cross-dresser does not have the same extreme self-consciousness
of the body to which he or she has been born.

[90] Dr. Toplack also commented that he believes that Ms.
Forrester has been “quite honest” with him during her sessions.
During cross-examination, he explained that as a therapist, he
does question what patients tell him, examines issues from
different angles, and if he had disbelieved her, he would have
considered confronting her.

[91] Dr. Toplack testified that there is a great deal of “not
knowing ... and prejudice” in society, including the medical
profession, about transsexuality. He believes that “the way we
feel about gender as a society ... we want to believe ... it is
black and white, so gender variant people break down that image
and bring it into question, which causes fear and discomfort in
most people.”

Cynthia Cousens

[92] Cynthia Cousens was one of the Commission’s witnesses, whom
the Tribunal qualified as an expert on best practices with
respect to police procedures as they relate to transsexual
persons. She is a retired Metro Toronto police officer, who had
twenty-eight years of service that included several promotions,
and twenty-six commendations including the Chief of Police Award
for Community Service. Her résumé is impressive (Exhibit 32). She
chose to opt for early retirement in September 1999 when her
pension plan had a surplus.

[93] Ms. Cousens has worked as both a Station Operator and as a
Platoon, and testified that while she was an active police
officer, she performed strip-searches as part of her duties. She
estimates that about one-third of the prisoners were
strip-searched, and estimates that she has strip-searched
hundreds of people in the course of her duties.

[94] Ms. Cousens testified that she was diagnosed with GID in
July 1999. When she was planning to attend a retirement function
in November 1999, she advised her former employer that her
identity had changed, that she was no longer Peter, and that she
would appear as a woman, which she did. In February 2000, she
legally changed her name from Peter Anthony to Cynthia Amy. She
has been able to change her Ontario driver’s licence, but could
not change her Quebec licence until she had completed sex
reassignment surgery. She noted, as a former officer, that this
leaves a transsexual driver in an impossible situation, and puts
the officer in a difficult situation, because driving without a
valid licence is an offence.

[95] Ms. Cousens testified that she was approached by the Deputy
Chief of the Ottawa Police Service, Larry Hill, and asked to
participate in that force’s Lesbian Gay Bisexual and
Transgendered (“LGBT”) Community Liaison Committee, because he
had read a newspaper article about her and her partner, Sylvia
Durand, and he asked her to provide them with assistance. They
sought her because of her unique knowledge. She was elected
Committee Chair in 2001.

[96] From 1993–1994, the Ottawa Police Service relinquished
control of the LGBT Committee from the police force to the
community. Thus, she said that no future Chief of Police could
cancel or terminate this Committee. It will continue to advocate
on areas of mutual interest together, such as the inclusion of
gays and lesbians in Bill C-250, which is hate crime legislation.
This is an issue where both the community and the police want to
see charges laid. The Ottawa Police Service set up its own hate
crime unit, the “Hate Bias Unit” in 1993.

[97] She said that the Ottawa Police Service’s Chief has been
recognized by the federal Human Rights Commissioner for
establishing the Hate Bias Unit. She added that Keith Norton,
(then) Chief Commissioner of the Ontario Human Rights Commission,
referred to the work of the Ottawa Police Service in the
Commission’s Gender Identity paper. Much progress has been made
between the police force and the community, and a relationship
that “used to be filled with strife has been turned into a very
effective and productive dialogue” and that “leaders have formed
important friendships.”

[98] She urges officers to look at ways of solving problems with
“flexibility,” which includes addressing someone in a way that is
not humiliating, using a person’s new name, rather than a birth
name, for example. She explains the medical protocols that
transsexuals undergo, and encourages officers to accept
transsexuals in the “identity that they now live in.” She added
that once she has taught the course, many officers have told her
that her approach, “sounds fair and makes sense.” They routinely
thank her for the opportunity to be better informed.

[99] She has taught “GID Advocacy” at numerous colleges and she
and Ms. Durand have provided training to the Ontario Provincial
Police (“OPP”), the Royal Canadian Mounted Police (“RCMP”), the
Ontario Fire College, and to First Nations. Ms. Cousens explained
that it is easier for the police officers she teaches to
understand GID issues when she teaches, because she can explain
it to them from her own life experiences, and has credibility
with them because she is their peer. She provided the Tribunal
with copies of her teaching materials developed for officers, “A
Police Officer’s Guide to Understanding Transsexuality in
Ontario” (Exhibit 33) and her matching power-point presentation
(Exhibit 34).

[100] Ms. Cousens testified that when she was a police officer,
there were three circumstances in which the police conducted
strip-searches: evidence that drugs were present or concealed;
knowledge of the person’s history of violence led to a search for
weapons; and previous knowledge or information that the person
might try to escape.

[101] She said that the sex of the officer performing the search
was supposed to match the prisoner’s driver’s licence or other
identification documents, such as a birth certificate, or, if the
person had no identification documents, it was based on the
biological sex of the person, determined by sexual genitalia. She
recalled these standards as being based on legislation.

[102] Ms. Cousens testified that identification documents are not
necessarily sufficient for a transsexual person’s assessment, and
suggested that when an officer takes a prisoner into the booking
room to discuss whether or not the prisoner requires any
medications, which is standard, the officer should also respect
the transsexual person’s new identity, if the prisoner identifies
himself or herself to the officer.

[103] Ms. Cousens described her own transition in detail, to
explain why a transsexual person requires such an accommodation
from the police during an arrest.

[104] When she was first diagnosed with GID in the fall of 1998,
she underwent psychiatric help so that she could understand her
motivation to cross-dress on her days off. She was treated in
accordance with the Harry Benjamin Standards of Care, by a
psychiatrist and an internationally accredited endocrinologist
and psychologist, who won the order of Canada. She commuted
between Toronto and Ottawa to receive this care. She began living
in the opposite gender role on her days off. After accepting that
she was a transgendered person, the next step was sex
reassignment surgery. She had to divorce her spouse of twenty-six
years, undergo the full-time “real life” experience for two years
of living as the other gender and presenting herself publicly
this way, and she had to undergo very extensive hormone
treatment.

[105] Ms. Cousens explained that she was given a prescription for
Androcure, a drug given to rapists and child molesters, that
destroys the testes, sexual motivation and the sexual psyche of a
male. She said that after taking this drug, she would never
function as a male again, because it destroys the male
reproductive system within two months of taking it. After the
male system was destroyed, she was given female hormones, at a
dosage six times the normal female level of estrogen. Thus, she
said that her breasts developed, her hips changed, and that she
underwent bodily and psychological changes as a result. She said
that her transitioning had been under way for two and one-half
years before her doctors gave her letters recommending her for
sex reassignment surgery.

[106] She said that at every aspect of the transition, she had to
tell everyone she knew her new name, her medical status and why,
whether they were friends, family, and even bank employees where
she banked. She was required to be socially active and employed
while transitioning. She encountered many great losses, including
family, other relationships and experienced some total rejection.
She explained that before doctors will provide the letters
necessary to obtain sex reassignment surgery, they must believe
that the patient is stable enough to deal with these pressures.
She added that six to eight months after her surgery, she was
able to change all of her identification documents.

[107] Based on her own life experiences, she said that the
practice of officers relying on the appearance of genitals to
determine sex was “not at all” sufficient for transsexuals. As
she explained, once she began her treatment, the medical
protocols required her to be in the female domain, as she put it,
“in depth in a feminine world.” Although she still had some male
genitalia, this “appendage was no longer functional” and was
going to be surgically altered and reconstructed in the female
form. She said, “for the patient to be treated as a male again is
something that is abhorrent because not part of the male domain
anymore.” While someone “may have male genitalia, it doesn’t work
anymore. You are female now. You are a woman and live as a woman,
completely in-depth in the female role.”

[108] She testified that during her work as a police officer,
beginning in the early 1970s at which time there were “many
rooming house fires,” she has seen victims, both male and female,
“exposed.” She has also seen victims, male and female, “partially
clad” due to traffic accidents, suicides and homicides and stated
that police officers will encounter nudity, amongst their duties.

[109] Ms. Cousens has also performed strip-searches on the spot
where the male in custody had pulled out a knife and it took
several officers to restrain the prisoner and take the weapon.
Given the urgency of the matter, all the attending officers saw
the strip-search, including female officers, and she said that
the female officers did not think this event was a “big deal.”
Ms. Cousens testified that since there have been more female
officers since the late 1970s and early 1980s, that “there is no
doubt in my mind that female officers see things that were
formerly only seen by an all male force.”

[110] In terms of the individuals in custody, Ms. Cousens
testified that there may be instances where those people are
violent, drugged, drunk, mentally ill, suicidal, intimidating to
the officers or manipulative. She said that, “if force was used
and it was a violent arrest, then eighty percent would be
strip-searched.” In her experience, typically a third of arrests
resulted in strip-searches.

[111] She once had a person in custody, who was a bisexual man
who impersonated a female, and who was also HIV positive. He was
initially searched by two female officers when the police thought
he was female, and then male officers became involved when they
realized the individual was male. He began yelling that, “I’ve
got AIDS and I’ll take you with me.” In this instance, the
booking room was “locked down,” because of the violent behaviour
involved and he was quickly searched by male officers with the
female officers remaining present. They all reviewed the
videotape later on, and Ms. Cousens believes that witnessing the
strip-search did not bother the female officers who were present.
She said that this event was the “only instance in my career”
where both male and female officers were present for a
strip-search.

[112] Typically, Ms. Cousens said that she performed
strip-searches of individuals in a private room, after they had
been booked in the booking room, but in dangerous situations, she
had to perform strip-searches “there,” and then put them
“straight to a cell” especially if she found “blades concealed”
or if the person had a “history of escapes.”

[113] Ms. Cousens testified that in the transgender spectrum,
there are six key variations: transvestites, cross-dressers, drag
queens, bisexuals, transgendered persons who have not had
surgery, and Two-Spirited individuals from the Native community.
She said that it is important to understand these variations,
because one is “a social issue, gender expression, while the
other, transsexuality, is a medical condition.”

[114] She urges officers to ask appropriate questions for
verification at or after the time of booking, and recommends that
they respect the person’s new gender whether the individual is
pre-operative or post-operative. She also suggests acknowledging
this transition. Typically during a booking, a Staff Sergeant or
other officer in charge will ask the individual if he or she has
any medical condition that the police should be aware of; is the
individual taking any prescription drugs; and does the individual
require any medical care. It is then up to the individual to
respond to the police. She admitted that if an individual said
that he was HIV positive, for example, that this medical
condition would not be immediately verified unless the individual
has had previous convictions that were in the police force’s
computer system, but it would give the officers a chance to take
some health and safety precautions.

[115] If the police are concerned that the individual is falsely
identifying as a transsexual, then she recommends asking a series
of questions for verification purposes. For an individual who is
biologically male and cross-dresses as a female, she suggested
that the police could take fingerprints and a photograph of the
individual in a wig and female attire and take a second
photograph of the person in the male identity, recording both the
female and male aliases/names. She began this initiative herself
in 1997 when working on front desk complaints.

[116] Ms. Cousens said that in Quebec, some transgendered
individuals carry letters from their doctors so that they “can
avoid controversy.” Once Ms. Cousens had had sex reassignment
surgery, she received an affidavit from the surgeon verifying
that the surgery had taken place, stating this affidavit is very
important because it is recognized as legal proof that she is now
a woman. She believes that a transsexual prisoner would be more
likely to want cooperation from the police. If the prisoner is
unknown to the police and uncooperative, refusing to answer, then
Ms. Cousens believes that the police have followed a reasonable
operational procedure and should continue in the normal course.
She said that if the person does not disclose his or her status
and does not seek any kind of accommodation, she would not
provide any.

[117] Her recommended questions for police officers in these
circumstances are as follows:

1. Are you seeing a psychologist or psychiatrist for your GID?

2. Have you had the Sex Reassignment Surgery?

3. Have you seen an endocrinologist and been put on a hormone
replacement program?

4. What are the names of these doctors?

5. Have you received or are you intending to receive letters of
recommendation for surgery?

6. Have you changed your identification documents to date, and
have you registered a new male/female name?

7. How many people have you disclosed your intentions to?

[118] Ms. Cousens said that in her view, if a person claims to be
transsexual, but is not in a medical program, then the police
should proceed in the normal course based on the relevant
legislation. She said that the name change issue is covered under
legislation. She also referred to the Public Safety Act, 2002,
S.C. 2004, c. 15. She said that otherwise, they are not protected
under medical protocols. She added that male cross-dressers or
bisexual male prostitutes, for example, would be unable to answer
these questions because they are not transsexuals. She recommends
that they be strip-searched by male officers and put into male
incarceration.

[119] Likewise, Ms. Cousens recommends that when the police
encounter individuals “who are as they say they are,” they should
be offered a choice of a male or female officer for the
strip-search, and that the officers need to “honour the medical
aspects of their confidentiality and their dignity.” She also
testified that it is important not to humiliate someone,
particularly if the person is pre-operative. She explained that
it is the “humiliation of saying you’re not quite a whole human
being.”

[120] If she were personally confronted with a “take it or leave
it” choice of either a male strip-search or a “split”
strip-search, she said, “if it were the only choice I had, I’d
pick the split search just to keep some respectability.” While
she believes that officers cannot refuse service, she recognizes
that there needs to be more sensitivity to officers who have
experienced trauma.

[121] Ms. Cousens said that she has received positive feedback
from the Ottawa Police Service that this new approach has been
working for transsexuals during lock-up and has been well
received by the Deputy Chiefs of Police. She said that the Ottawa
Police Service has not yet formalized the recommendations,
because a sub-committee continues to work on them and other best
practices. However, she sees real progress being made overall
with the National Capital Region’s police and the input they are
receiving.

[122] In response to Ms. Forrester’s question about
progressiveness within police forces generally, Ms. Cousens
replied that, “Transsexuality is where gays and lesbians were ten
to fifteen years ago. Back then, it was a criminal offence to be
gay or lesbian until it was changed by the Charter.” And in
response to a question posed during cross-examination, Ms.
Cousens said that she is aware of two instructors who donate
twenty hours of their time to teach new recruits LGBT issues at
the Ontario Police College. To date, she is aware of the Ottawa
Police Service and the Ontario Police College’s work on these
issues, and believes that awareness within police services
generally is “escalating and growing.” She added that she knows
of some efforts in Peel, but that she did not have knowledge of
the extent of these efforts.

[123] Ms. Cousens wisely commented that, “it is not just about
formulating policies, it is about working together on good
relations.” She said that the “police and the community both have
to change,” calling it a “bipartisan approach” and adding that it
is “not always up to the police” to do so.

[124] Ms. Cousens testified that Ms. Durand is the world’s first
soldier to transition while serving. The Canadian Armed Forces
recognized Ms. Durand’s needs, and allowed her to go “overnight
from wearing a male uniform to a female uniform,” because she was
in transition and “everything changed.” However, she said that a
male cross-dresser in the Canadian Armed Forces must wear the
uniform of his biological sex, because they have determined that
this is social behaviour, not a medical condition. The officer
can wear female clothing in his free time.

Sylvia Durand

[125] Ms. Durand lives in Quebec. She served with the Canadian
Armed Forces for twenty-five years and received several
promotions, including one following her transition, most recently
serving as a Warrant Officer.

[126] She was diagnosed with GID on January 20, 1998, and
transitioned while serving in the Canadian military, with the
full support of the Department of National Defense. She was the
first soldier in the world to do so.

[127] She is proud of her Huron-Wendat First Nations ancestry,
and went through another journey to become a Medicine Woman, in
recognition of her “Two-Spirited” status. She has attained the
honour and responsibility of a white eagle feather, meaning that
she is higher in rank than an Elder. She regularly teaches and
lectures a wide variety of groups, from law enforcement agencies
to religious groups and medical students, who seek her knowledge
on transsexuality. Ms. Durand was qualified as an expert in
training organizations to understand issues relating to
transsexuality.

[128] When Ms. Durand was diagnosed with GID, she bravely
approached her military supervisors “one at a time,” as she said,
going up “the chain of command,” and explained the “entire
meaning of what I was and what I needed” in the short, medium and
long term. She also told her immediate co-workers.

[129] Her commanding officer, Major Frances Allan, told her that
that they valued her, not her “outside shell,” and that they
“respected her decisions and that would not change.” Her military
superiors were all supportive. The Director-General asked her to
build a timetable from the time diagnosed to surgery so that they
could understand what changes were unfolding, and told her that
they were “one hundred percent behind you.” She testified that
General Romeo Dallaire said that he viewed her situation not as a
medical issue but a political issue, went to the Ministry of
Defence, and had her case elevated to the House of Commons. The
Ministry of Defence agreed that she should receive the support
she needed and remain in the military. Today, she said that other
countries in NATO are following Canada’s example and also
accepting transsexuals in military service.

[130] A “town hall” meeting was organized, and everyone who
worked in her building received an email inviting them to attend.
It was held on June 15, 1998, in the cafeteria, and 130 people
were present. Her commanding officer introduced her, and she
“explained it all and got a standing ovation.” She said that many
of her fellow officers told her how courageous she was to do this
in the Armed Forces. She became a full-time female soldier on
July 1, 1998, changing her military identification on July 3,
1998, and underwent sex-reassignment surgery on August 31, 1999.
The military has its own healthcare regime, and her
sex-reassignment surgery (“SRS”) was covered by the Defence
Health Care Plan. The Armed Forces changed her military ID prior
to her SRS. She said that a few others have since transitioned
while serving in the Armed Forces.

[131] She has provided training to the Canadian Human Rights
Commission on transgenderism and transsexuality. In April 2000,
she joined the Ottawa Police Service Liaison Committee as a
member, where she provides expertise on gender issues and sexual
identity. She was also the moderator at Health Canada’s
Conference on Diversity in May 2001. She continues to be a member
of the Defence Committee Advisory Group, for women in the Armed
Forces and the Aboriginal Advisory Group.

[132] She has provided outreach training to the OPP on sexual
identity, and blessed them as a Medicine Woman. She and Ms.
Cousens assist the Ottawa Police Service by speaking to new
officers, and discussing how to be “professional and ethical with
LGBT people.” She also teaches the “social aspect of things” to
colleges, to promote being “more connected to them as humans.”
She has also been a lecturer to medical students and pharmacists
in May 2004.

[133] In December 2004, she was awarded a Certificate of
Appreciation from the Ontario Association of Chiefs of Police,
and the Ontario Police College, for her valued contributions
during the Diversity and Anti-Discrimination Issues in Policing
Forum, Service Excellence in a Changing Demographics conference.
In partnership with Ms. Cousens, they provided an overview on GID
to all the attending police representatives.

[134] Ms. Durand explained that in contrast to the Canadian
experience, the American military has a policy known as “Don’t
Ask, Don’t Tell,” which means that “gay members of the military
cannot tell anyone about their sexual identity,” and that if the
information is leaked, they will be discharged no matter what
their rank or years of service. She said that between 900 and
1,500 American soldiers are released per year because “they are
gay or are perceived as such.” She added that the issue of gender
expression is not dealt with by the American military, unlike the
Canadian military.

[135] Ms. Durand believes that when organizations, such as the
Canadian military, have adopted a set of policies that clearly
indicate that they have zero tolerance for discrimination and
harassment, it is possible for individuals to transition. She was
the first soldier in the world who transitioned in a military
organization. She said that from the moment she was diagnosed,
her military colleagues treated her as a person and recognized
her “as a female and started dealing with me as such.” She
described the Canadian military’s response as “an amazing
reaction,” and said that it was both “positive and opening.” The
Canadian Armed Forces is a vast employer, with over 100,000
employees in total, and they changed their policies because of
Ms. Durand’s courage and leadership. It was clear from her
testimony that the military changed its policy, as she put it,
“from the highest level down and not from the bottom up.”

[136] She has an interesting perspective on training groups. She
said that she does not view the “issue of ethics the same way
anymore.” She urges everyone to recognize that “being human is an
extremely complex thing, and should be taken care of with
respect.” Later on in her testimony, when she was asked about
treating her colleagues with respect and receiving it back, she
agreed, stating, “Life is a two-way street ... if you help
someone with something difficult, in Aboriginal belief, it comes
back to you ten-fold.”

[137] When she began transitioning and found out that someone had
been speaking of it inappropriately, she went to speak to them in
a polite manner, and without forcing the issue, assisted them in
“realizing they had made a mistake.” Moreover, when her military
friends were told anything the least bit disparaging, they asked
these would-be critics if they knew her, if they knew how hard
she was trying to make the world a better place, and if they knew
the hardships that she had suffered. They were unable to answer
and realized that it takes courage to go forward alone. It was
clear throughout her testimony that this is her approach to life,
and that she imparts it successfully in her training of military
and police personnel.

Jennifer Jewell

[138] Ms. Jewell testified on behalf of Ms. Forrester, describing
her as “one of my two best friends.” They met in 1998 at the
weekly Meal-Trans Program at The 519 Church Street Community
Centre (“The 519”), a Toronto community centre for the LGBT
Community. She testified that she has only ever known Ms.
Forrester as a woman, and that she does not socialize with many
men. She described her friendship with Ms. Forrester as having
the “same dynamic” as her friendships with other women who are
not transsexual.

[139] Ms. Jewell was able to confirm Ms. Forrester’s arrest and
search on May 29, 1999, and the emotional turmoil that it caused
her, including her suicidal thoughts that she had expressed to
Ms. Jewell. She did not tell Ms. Jewell that she believed that
she was sexually assaulted by the police right away, and Ms.
Jewell cannot say when Ms. Forrester related that information to
her. She was unable to confirm the arrest of August 12, 1999. She
described seeing Ms. Forrester the day before her arrest on March
8, 2001, and how after she was arrested, she became so afraid
that she stayed with Ms. Jewell because “she needed someplace to
hide.” Ms. Jewell testified that Ms. Forrester had bruises on her
shoulders, which Ms. Forrester had told her were the result of
the arrest. Ms. Jewell noted that both she and Ms. Forrester live
far apart, both are disabled and that Ms. Jewell sometimes has
trouble going down the stairs where she lives, so they often keep
contact by telephone.

[140] Ms. Jewell provided the Tribunal with other evidence, as
well, but it is not relevant to the matters remaining to be
determined.

Summary of the Police Officers’ Testimony

[141] Given that the issues surrounding liability have been
resolved and that the only issues remaining involve public
interest remedies, there is no need to sift through the stark
differences in the accounts of Ms. Forrester’s repeated arrests
from the respondent’s perspective. Suffice it to say that their
accounts of the amount of force used, the manner in which her
clothing was removed, and the tone of these exchanges differs
greatly from Ms. Forrester’s evidence, but that these are issues
the Tribunal no longer needs to weigh. Nevertheless, many of
their exchanges with Ms. Forrester, from either their perspective
or hers, illustrate society’s lack of knowledge about
transsexuality and highlight the need for redress of the
outstanding public interest issues involved.

Mark Fischer

[142] Officer Mark Fischer testified that he arrested Ms.
Forrester on May 29, 1999, because he had investigated a
complaint made by Ms. Forrester’s former spouse, who had
complained that Ms. Forrester had left her too many telephone
messages. He listened to four of those messages, and while they
were not of a threatening nature, Ms. Forrester did say it “would
get ugly” and added, “good luck in finding me.”

[143] Officer Fischer had attended at Ms. Forrester’s place of
employment and spoke to the supervisor, asking that his message
to contact him be relayed to Ms. Forrester. He had been told by
Ms. Forrester’s former spouse that he was looking for “Howard
Forrester” and that Ms. Forrester was undergoing a gender change
and using the name Rosalyn Leslie. He did a driver’s licence
check and while there was no information recorded for Rosalyn
Forrester, there was information recorded for Howard Forrester.

[144] Ms. Forrester did not respond to Officer Fischer’s message,
and Officer Fischer continued to look for her both at her home
address and at her workplace. From his review of his notes, based
on his conversations with Ms. Forrester’s former spouse, this
appeared to be a domestic situation with its own history, and the
family court case was scheduled to begin on June 18, 1999, with
Ms. Forrester’s former spouse seeking full custody. Ms.
Forrester’s former spouse had complained about receiving three
telephone messages referring to the custody dispute. Ms.
Forrester’s former spouse had told him that Ms. Forrester had no
telephone number, had no employment and had had three suicide
attempts. Her former spouse made allegations of a note being left
on her car inside a locked garage immediately following an
interim custody order in her favour that said, “it’s started.”
Her former spouse alleged that when she changed her telephone
number, she received a voice mail from Ms. Forrester that said,
“gotcha.” Ms. Forrester’s former spouse told Officer Fischer that
she was afraid for her safety and for her daughter’s safety and
that she felt “emotionally controlled.”

[145] Officer Fischer was sufficiently concerned about this
“domestic” situation that he arranged for a Video-taped Statement
Synopsis (Exhibit 8) from Ms. Forrester’s former spouse, with a
view to giving it to the Crown prosecutor at a later time.

[146] On the night of May 25, 1999, Officer Fischer went to Ms.
Forrester’s residence, and heard footsteps inside, but no one
answered the door. He notified his Duty Sergeant, who also
attended at the door of the residence and received no response.
In the beginning, Officer Fischer said he only wanted to speak to
Ms. Forrester as a “person of interest.”

[147] In 1999, Officer Fischer testified that he had an
individual discretion whether or not to lay a charge in
circumstances such as this one, but that today, it would be
considered a “domestic” and no discretion would be given if there
were reasonable and probable grounds to lay a charge.

[148] Officer Fischer testified that, “I’d attempted at great
length to contact Ms. Forrester ... with negative results ...
never received any telephone call back despite my numerous
attempts.” He told the Tribunal that based on the information he
had been given by Ms. Forrester’s former spouse, he had formed
the conclusion that there was reasonable and probable grounds to
lay the charge of criminal harassment, contrary to the Criminal
Code. He prepared a “warrant package” while he worked on the
night shift (Exhibit 38), so that another officer could appear
before a Justice of the Peace during the day shift to obtain a
warrant. He had no further dealings with Ms. Forrester until the
court appearance.

[149] Officer Fischer identified a document dated August 19,
1999, Notice of Trial/Disposition (Exhibit 39), which was
prepared by Peel Police Court services and indicated that the
charge of criminal harassment under §264(2) of the Criminal Code
had been withdrawn, and a §810 peace bond entered. He confirmed
that the description within this document matched his notes.
After the peace bond was signed, he had no further dealings with
Ms. Forrester or her former spouse.

[150] Officer Fischer testified that while he received a
supervisor’s all-day, “general course” on diversity in December
2004 during his training, he believes that transsexuality was
mentioned, but was not certain. He said that he had never been
specifically trained on strip-searching transsexuals, but that he
had been trained on strip-searches generally, meaning both “pat
down and full search.” He is aware of the Peel Regional Police
directive, but has not been trained on it (Exhibit 40). All
officers carry a copy of the directives at all times. He
explained that new directives replace old directives, and that
the revised directive (Exhibit 41) replaced the earlier one
(Exhibit 40). He was not present when Ms. Forrester was searched.

Kevin Willson

[151] Constable Kevin Willson testified that he attempted to
execute the arrest warrant of Constable Fischer, by attending at
Ms. Forrester’s place of employment. Rather than answer the door
when he knocked, Ms. Forrester, who matched the warrant,
indicated that she needed to make a few phone calls and walked
away. Willson testified, “I had someone cover the back because I
was not sure if I was going to have a foot-chase.”

[152] Constable Willson testified that he waited twenty-seven
minutes for Ms. Forrester to come out of the store, at which
point he put her under arrest. He said, “the party appeared to be
male,” and he said that he “got a little resistance attitude
wise.” He also said that Ms. Forrester wanted to know why he was
there, and then he distinctly recalls her saying, “obviously you
know about my situation.” Constable Willson did not, at the time,
understand the reference, and thought Ms. Forrester meant the
investigation and the warrant to be executed, rather than her
gender transition. Constable Willson said, “up until that point,
I had no idea.”

[153] He performed a cursory “pat down” search of Ms. Forrester,
which meant that he put her in handcuffs, checked her pockets for
weapons and contraband, and put her in the cruiser. He said he
used “minimal force” on Ms. Forrester and that he does not
transport anyone without first putting handcuffs on him or her.
He described her as having “a bit of attitude about the
background but was very compliant otherwise.” He took Ms.
Forrester back to the station, and arranged for her to speak to
duty counsel, as she requested. She was lodged in the cells. He
testified that she was processed at 11 Division by Constable
Hodgson and (then) Staff Sergeant Rocha, who were both on duty at
the time.

[154] Constable Willson said that Ms. Forrester, “made me aware
of the gender transition she was going through.” He added, “I had
never dealt with that on the street, and I was attempting to
determine how far along she was,” in order to determine whether
to put her in a male cell or a female cell, and which bathroom
would be appropriate. Ms. Forrester told him that she was female,
that she should use a female bathroom, and as he put it, “that
everything was in the female context.” Ms. Forrester “corrected
me a few times” because “I did refer to her as ‘he’ a few times.”
When he identified his own notes (Exhibit 43), he acknowledged
that the references to Ms. Forrester all began with male
pronouns. During his cross-examination, he apologized to Ms.
Forrester for his use of male pronouns in his notes, for which
she thanked him.

[155] While Constable Hodgson was taking down her information,
Constable Willson pulled his (then) Staff Sergeant aside and
explained the situation to her.

Marcella Rocha

[156] Detective Sergeant, formerly Staff Sergeant, Marcella
Rocha, testified. She joined the Peel Regional Police in 1974,
and has over thirty years’ experience as an officer. When she
began, there were very few women officers, and they were given
mostly radar duties. She has received a series of promotions
throughout her career, and was promoted to the full rank of
Sergeant in 1989. Today, she is in charge of five units, with a
total staff of thirty-six people.

[157] She was on duty when Ms. Forrester was arrested. She
testified that she was approached by Officer Fischer while she
was on parade. She directed Officer Fischer to give this warrant
to Officer Willson, and it was Officer Willson who brought in Ms.
Forrester. She said that it was Officer Willson who explained
that Howard Forrester was Rosalyn Forrester. At first, she did
not understand and asked him if they had the same person. Then
she asked if this involved a sex change, and Officer Willson said
“yes.” She asked how far along Ms. Forrester was, because no
search had been done yet.

[158] Detective Sergeant Rocha explained that they have
restrictions on putting prisoners together. They have four
categories, separating men from women and adults from youth. She
arranged for Ms. Forrester to be put in a female cell. She also
spoke to Ms. Forrester’s lawyer, who asked that his client be
booked as Rosalyn Leslie and not as Howard. Detective Sergeant
Rocha said that they complied with this request, and gave Ms.
Forrester as much respect and dignity as they could. She arranged
for another female prisoner to be taken to 12 Division, so that
Ms. Forrester did not have to have anyone else with her. She
admitted during cross-examination that she had a concern putting
Ms. Forrester in a cell with another female prisoner.

[159] She said that Officer Hodgson began entering the cell sheet
for Ms. Forrester, also known as the Prisoner’s Log (Exhibit 45).

[160] Detective Sergeant Rocha asked Ms. Forrester if she was on
any medication, and told her that she would be searched. She
asked her if she was “going through a sex change operation,” and
said that “she seemed a little perturbed by the question.” She
told her that, “prior to being lodged in a cell, you have to be
searched.” Detective Sergeant Rocha asked Ms. Forrester if she
was “male from the waist down” to which she replied, “yes,” and
if “female from the waist up” to which she also replied, “yes.”
Detective Sergeant Rocha directed Officer Hodgson to search Ms.
Forrester from the waist down and when this was complete, she
would search her from the waist up. Detective Sergeant Rocha is
adamant that Ms. Forrester never requested an all-female
strip-search, stating that it “never happened.”

[161] Detective Sergeant Rocha added that Ms. Forrester “looks
quite different today than then. Today, she looks quite feminine,
but then she did not ... she resembled more of a male. She is
certainly more attractive now. She looks pretty today.” Ms.
Forrester smiled and thanked her for the compliment, and
Detective Sergeant Rocha replied that she was welcome.

[162] Detective Sergeant Rocha described how prisoners can easily
conceal razor blades and other weapons in the flap of their
underwear, or under their breasts and under their bras.

[163] She said that she sent Officer Hodgson to a private room,
made of block walls with a single door and no windows,
immediately adjacent to the booking area, to search Ms.
Forrester. She said Officer Hodgson was in the room less than one
minute. Once he left the room, she went in immediately, and
searched her upper body. Ms. Forrester was wearing a bra under
her sweatshirt, which she lifted herself during the search. She
described Ms. Forrester, as being:

... very cooperative, but seemed to be unhappy. I did everything
I could to please her but nothing I did pleased her. It must have
been an awkward situation for her, it certainly was for us.

[164] Detective Sergeant Rocha testified that in her thirty-year
career, Ms. Forrester was the only transsexual person she had
ever dealt with. The split search was her idea, stating:

I thought it would be reasonable to have a male officer search
where the male genitalia was and a female search where the
breasts were.

[165] Once the search was complete, she said that she asked Ms.
Forrester to exit the room and sit on the bench again and that
she complied. Her doctor arrived and Ms. Forrester spoke to her
lawyer from the booking room. She denies that any snickering
occurred. She arranged for Ms. Forrester to be transported in a
cruiser rather than the paddy-wagon, with two escorts, one male
and one female, being Officers Gordon and Mormile to the
courthouse. Detective Sergeant Rocha believed it was likely
Clarence Court, but was not certain. She had no further dealings
with Ms. Forrester.

[166] In terms of diversity training, she said that their Race
and Ethnic Relations Bureau does training at the recruiting
level, and that there are also a few senior level courses and
lectures available. The diversity training is aimed at
entry-level officers and includes ethnicity, religion and
homosexuality. There are no specific programs on transsexuals.
Detective Sergeant Rocha said that she took it upon herself to
sit in on the diversity lecture, because the lecture is under her
command. They have a LGBT outreach program, but nothing further.

[167] A bulletin on strip-searches was issued in 2002, and she
testified that it was “because of the Golden ruling.” It included
a split search for transsexuals.

[168] When asked how she would feel if she were required to
perform a strip-search on a female transsexual, she said:

I’d be extremely uncomfortable with it. I wouldn’t want to be
searched by a male or search a male. It is just a comfort level
... I’ve had male prisoners come in drunk who wanted me to search
them and I didn’t do it. I would be uncomfortable actually. I
would feel that my integrity is breached and I wouldn’t feel
respected.

[169] She was clear that she did not want to strip-search either
male prisoners or female transsexuals who have male genitalia
below the waist. She said that:

For over thirty years, I’ve tried to show people a high level of
respect and show them that. In that context, I wouldn’t feel
viewing male genitalia, or searching a male – I wouldn’t feel
comfortable with that. I would feel I was not giving them respect
and not feel respected myself.

[170] She testified that even if she were shown evidence that a
transsexual woman would feel traumatized to be searched by a male
officer, she would not be able to change her feelings of modesty,
“because I’m still left with my feelings of being uncomfortable.”
She said that if the transsexual woman was post-operative, she
would not have these feelings of discomfort. For her, the only
difference is the genitalia. Hypothetically, she said that she
would prefer to split search an intersex individual as well,
regardless of that person’s preference, adding that she has not
had any dealings with intersex prisoners during her career.

Jay Hodgson

[171] Constable Jay Hodgson testified that he completed part of
the Prisoner Log (Exhibit 45). He was working the night shift
when he was somehow notified by Officer Willson on May 29, 1999,
that they had a prisoner in the cells who needed booking, which
was his primary responsibility. He said that the time to ask
prisoners some standard questions is at the time of booking.

[172] He entered the cell area with (then) Staff Sergeant Rocha.
He said that Staff Sergeant Rocha and Constable Willson had a
conversation, stating, “I believe it was a sexual orientation
change operation.”

[173] Constable Hodgson was directed to conduct the rest of his
duty as cell officer, which meant that he asked Ms. Forrester to
empty her pockets, take off her belt, earrings, and jewellery. He
asked her for all of her paperwork, such as passports, social
insurance card, and any other personal property. She politely
complied and he put it all in a prisoner’s envelope. The name on
the Prisoner’s Property Envelope Record was “Forrester, Howard
(Rosalyn)” (Exhibit 46). He was also instructed to search her
from the waist down, and Staff Sergeant Rocha searched her from
the waist up. He said that the search was “very quick,” roughly
thirty to sixty seconds, that she followed his verbal commands,
and added, “she didn’t give me a hard time.” He testified, “I had
zero interaction with Ms. Forrester other than booking and
questions pertaining to paperwork.”

[174] He said that the search of prisoners going into cells was
standard procedure for an arrested person at that time, and that
there was “no option.” Ms. Forrester was searched in a private
room. Once Staff Sergeant Rocha had completed the upper half of
the strip-search of Ms. Forrester, Constable Hodgson completed
the paperwork and placed Ms. Forrester in “female cell” number 6
(Exhibit 45). He cannot recall why she was housed in a female
cell. He continued to monitor her by video, but had no further
contact with her.

[175] In terms of the diversity training he received, he could
not recall any concerning transsexuals.

Terry Magill

[176] Special Constable Terry Magill testified regarding the
events of May 29, 1999. At the time, he was a prison escort
officer for the respondent. He recalls his interaction with Ms.
Forrester.

[177] He said that on Saturday mornings, bail hearings were
routinely heard at the Clarence Court, but not trials. He was
given a cell sheet that indicated there was a prisoner who needed
to be transported to bail court for a hearing. He said that
everyone who came into custody had to be strip-searched before
being lodged in the cell area at this time.

[178] He recalls that Ms. Forrester was strip-searched, but
cannot recall who performed the search. He described the
strip-search as involving the prisoner facing up against the wall
of the cell, and being required to remove one piece of clothing
at a time, including underwear, until the prisoner is “standing
there naked.” The second officer logs each piece of clothing
while the first officer watches the prisoner remove it. Once the
prisoner is completely naked, the prisoner is asked to turn
around and face the wall. The prisoner is then asked to bend
over, to “expose the buttocks area, to confirm there is no
contraband” in his or her bodily cavity.

[179] If the inmate refuses to cooperate, Special Constable
Magill said that the inmate would be given several chances to
cooperate, but if he will not remove his clothing, the officers
will do it.

[180] When Ms. Forrester arrived at the courthouse from the
division, he recalled that her cell sheet that they received from
11 Division stated that she was a “transvestite” and that her
name was “Forrester, Howard.” Special Constable Magill’s own
notes referred to Ms. Forrester as a “transvestite” (Exhibit 47).

[181] Special Constable Magill recalled that Ms. Forrester was
“very aggressive with us,” stating “that they [sic] weren’t going
to be searched.” Special Constable Magill testified, “they [sic]
said we had no right to do what we were doing and it was against
their [sic] rights to be searched.”

[182] He recalled that he and Special Constable Huxtable were
attempting to search her, and when she refused to remove her top
as part of the strip-search, they called their Supervisor, Barry
Dale. The three officers strip-searched Ms. Forrester, but
Special Constable Magill does not have a particularly good
recollection of it. He recalls that Ms. Forrester protested
because she told them that she had already been searched. He
said, “they [sic] were passive-aggressive, because they didn’t
want to be searched again period. The person had already been
searched and felt it was unnecessary.” He said that the “search
went out of order” because “the person protested so much we left
the top to the last, which was a deviation from the regular
search.” He denies that it was anything other than routine, and
denies that anyone made any derogatory comments at her expense,
as alleged in her amended complaint. When asked to describe how
Ms. Forrester reacted to being searched below the waist, he said,
“I wouldn’t say no objection, but the person complied.” He had no
other interaction with Ms. Forrester. She was searched in a
search room, and put in a different cell away from the “regular
population,” because he was cognizant of her breasts and the fact
that she wore earrings.

[183] Special Constable Magill said that he has not received any
diversity training with respect to transsexuals.

Garth Huxtable

[184] Special Constable Huxtable testified that he had no
recollection of the May 29, 1999, incident. He confirmed that he
assisted in Ms. Forrester’s strip-search on August 12, 1999, and
said that Ms. Forrester had to be “physically strip-searched”
because she had refused to cooperate (his notes were marked as
Exhibit 49). He said, “I had to hold one of Ms. Forrester’s arms,
and someone had to hold the other one. My supervisor, Brian
Barrett, removed her bra.” He said that the level of force used
was “firm” and that there was “no violent struggle.” Her
resistance was described as “passive.” The only other
recollection that he had of Ms. Forrester is that she is Black.
When asked during cross-examination by his own counsel if he
understood at the time that Ms. Forrester was a “she” he said, he
did not think so, but shrugged and added, “I believe she is a she
now.”

Barry Dale

[185] Supervisor Barry Dale testified about his role as
supervisor vis-a-vis the search conducted on Ms. Forrester on May
29, 1999, at Clarence Street Court. He advised the Tribunal that
this court building was torn down in September 2000 and replaced.
He identified a diagram of it (Exhibit 50).

[186] Part of the male cell area was designated for those males
in protective custody, which he said included individuals with
medical problems and those charged with sex crimes. There were
two protective custody rooms.

[187] He recalled being called by Special Constable Magill on May
29, 1999. He said that when he came down the hallway, Special
Constable Magill explained that he had a male person being
searched who “refused to have his top searched and removed, and
that the person was undergoing a sex change process and this
person was giving him a hard time during the search.” Supervisor
Dale agreed to go down and see the inmate.

[188] Supervisor Dale said that his observation at the time was
that the inmate appeared to be male. Ms. Forrester explained to
him that she was undergoing a transition to female. Supervisor
Dale explained to her that they had to strip-search all
individuals coming into custody. At this time, there was no
policy on transitioning, and the police had been finding many
small concealed weapons and drugs within the prison population,
which is why they had begun strip-searching all prisoners as they
went into custody.

[189] Supervisor Dale testified that he had received a memo,
dated June 12, 1992, from Inspector Allen, who was in charge of
court services, advising all staff that due to an increase in the
volume of drugs and weapons in the courthouse, all individuals
had to be strip-searched coming to the courthouse from other
police divisions, other courts or other police forces (Exhibit
51).

[190] Supervisor Dale said that Ms. Forrester was upset, but that
he explained to her that he had to “search everybody.” He said
that by the time he was talking to Ms. Forrester, the other
officers had already conducted a search of her below the waist.
He said that she was fully clothed when he was speaking to her.
He told her that he needed to look under her top, and Ms.
Forrester complied. He could not recall how long he had to
negotiate with her before she lifted her top and “did a 360,” but
she kept saying that the police “shouldn’t be doing this” and
made a reference to how she felt the police did not help her when
her child was missing. He could not recall if she had asked for a
female officer to perform the strip-search.

[191] At one point during his testimony, Supervisor Dale realized
that he kept referring to Ms. Forrester with the male pronoun
“he” and apologized, saying that he did not want to be “ignorant
to anybody.”

[192] Supervisor Dale testified that he did not witness anyone
making any jokes at Ms. Forrester’s expense and said that he
would not have tolerated it.

[193] Supervisor Dale showed the Tribunal examples of actual
weapons found on prisoners’ bodies from strip-searches at the old
courthouse, which included: safety-pins; combs; keys; plastic
ties that can be whittled down into sharp objects; hydro-wire;
metal wire; a crucifix charm that concealed a small blade on the
reverse side; hypodermic needles; steel pins attached to cans of
processed meat and to fire-extinguishers; blades; plastic bags
(one of which was used by a prisoner to commit suicide); and a
collection of knives, often concealed in the prisoners’ boots.
The Tribunal was surprised at the large size and dangerous
appearance of some of the knives concealed on prisoners’ bodies
or in their boots, and considers them to be lethal weapons.

[194] Supervisor Dale was clear that no contraband was found on
Ms. Forrester.

[195] Today, Supervisor Dale said that the new courthouse has
x-ray equipment, similar to what is used at airports to check the
contents of what individuals are carrying; and that the officers
have metal detectors that individuals must walk through, as well
as scanning wands. Because of the Golden decision, they no longer
search people randomly. They only perform strip-searches if they
have reasonable and probable grounds, and a supervisor must
approve it.

[196] Supervisor Dale recalls another transsexual prisoner who
was transitioning from being biologically male to female, and he
ordered her to have a split search. It was clear from his
evidence that the key question used to determine whether or not
she should be offered a split search was whether or not she still
had a penis.

George Brian Barrett

[197] Supervisor George Brian Barrett of the Prison Escort Bureau
who was involved with the August 12, 1999, search of Ms.
Forrester also testified. He identified the Prisoner Escort
Manual (Exhibit 52), which went into effect in October 1998. At
that time, the Manual required a minimum of two officers of the
same sex as the prisoner to conduct the strip-search. The sex of
the prisoner was determined by the presence of either a vagina or
a penis.

[198] As a result of the Golden, supra, decision, Supervisor
Barrett said that he received an email from his supervisor, John
Christian, Staff Sergeant of the Bureau, dated August 1, 2002,
explaining that strip-searches were no longer routine, that they
required the approval of a supervisor based on certain criteria,
and attached a training bulletin (Exhibit 42) to the email. His
email indicated that in order to ensure officer safety, all
persons entering their custody and control would still receive a
“proper and thorough ‘pat down’ search.” The training bulletin
stressed the importance of the pat-down search and included a
provision for the strip-searching of transsexuals.

[199] He identified his own notes from August 12, 1999 (Exhibit
31), which he used to refresh his memory. The entry concerning
Ms. Forrester, which he read out, stated:

0925 – had to physically strip-search Forrester, Howard, 4 Nov 62
transvestite. Said he will not be searched by male officers. He
has male genitals and was told he would be searched. He did not
resist.

1500 – off duty

[200] He identified his interview statement given to the
Commission, and agreed that he had described her as a
“transsexual with male genitals.” When asked why he wrote down in
his notebook that she was a “transvestite” he said that “at the
time, I wasn’t sure of the terminology.” He added that, “at the
time, I didn’t understand the difference between the two terms.”

[201] When he went to the cell, he recalled seeing Special
Constable Magill, Special Constable Huxtable and Special
Constable Charles Boersma, and believes that Ms. Forrester was
dressed when he entered the cell, but said he did not have a
clear recollection.

[202] He thought that Ms. Forrester appeared to be physically
more male, given her size, which he said was a “minimum six feet”
in height, and her features. He agreed with the suggestion that
the defining characteristic used by the police was the fact that
she still had a penis.

[203] He said that when he asked her what the problem was, she
“explained to me that she was going through a process of change
and did not want to be searched by male officers.” He said that
he understood that this meant that she wanted to be searched by a
female officer, but he did not offer this to her as an option. He
explained the process to her, and offered to have only one
officer perform the search with himself outside of the door if
she would cooperate, “to lessen the impact.” He said that he made
this offer to Ms. Forrester “several times” and that when she
declined, he had two male officers take hold of Ms. Forrester’s
arms. He recalled that her shirt or sweater was removed, but
cannot say how.

[204] He went behind Ms. Forrester while she was being restrained
and unhooked her bra. The other officers let go of her arms, and
he is not certain if they helped the bra off or if it slipped
down. Ms. Forrester’s bra was completely removed from her body.
He could not recall whether Ms. Forrester was totally naked in
front of him, as Officer Barrett had testified.

[205] Ms. Forrester appeared genuinely distressed to the Tribunal
when listening to this evidence, and repeatedly turned around to
sob quietly when the evidence given by different witnesses
concerned the removal of her bra.

[206] He said that Ms. Forrester was put into protective custody,
for her own safety from the other prisoners.

[207] He denied that any inappropriate comments were made to Ms.
Forrester by any of the officers, that anyone stood and stared at
her, and also denied her allegation that they withheld giving her
lunch when they fed the other prisoners. He said that there is “a
lot of emotion in a cell-block” and that the prisoners are often
“livid” after hearing the allegations made by Crown counsel
against them in the courtroom. He said that there “is enough
emotion in flux already, and that an officer would face serious
trouble if he provoked an altercation with an inmate.” He
believes that if something inappropriate had been said, someone
would have told him.

[208] He said that he has received diversity training during the
Frontline Supervisor Course, taught at the Police College, but
that this training did not include transsexual or transgender
issues, and that much of the focus of the course had been on
race. He is a member of the Peel Mental Health Committee, made up
of doctors, lawyers and judges, and that the focus is on dealing
with the mental health issues of prisoners in court.

Mark Gordon

[209] Police Constable Mark Gordon testified. He was the special
escort given to Ms. Forrester by (then) Staff Sergeant Rocha to
go to her bail hearing. He referred to his notes when he
testified (Exhibit 55).

[210] He said that he transported Ms. Forrester along with Police
Constable Jennifer Mormile to Clarence Court for a bail hearing.
Although normally a prison escort van would transport prisoners
for a “bail run,” with the male prisoners transported separately
from the female prisoners, in Ms. Forrester’s case, because she
is a transsexual, she was transported separately with two
officers, one male and one female. Nothing happened that was
eventful.

[211] When asked about the diversity training that he has
received, he said that he received such training at the Ontario
Police College in 1998, and that it included race, religion and
sexual orientation. He believes it included transsexuality. He
also said that Peel has a diverse population, with many racial
and ethnic groups, and that they are aware of diversity within
the community they serve.

Jennifer Mormile

[212] Police Constable Mormile also testified, and she also
recalled Ms. Forrester. From her review of her notes (Exhibit
56), she said that to the best of her knowledge, prisoner escorts
usually do “not take females with males or young males,” but that
she had received a radio call from dispatch advising her to
return to the station “to conduct this special circumstance.” She
had been advised that Ms. Forrester was in the “process of having
a change done” which was the reason for the special bail run
being provided.

[213] She testified that there was no discussion with Ms.
Forrester and that nothing unusual happened during the bail run.

[214] In terms of diversity training prior to May 29, 1999, she
said that she had taken an introductory course on race relations
for two weeks at the County Court facility with the Peel Police,
prior to going to Police College, and that she had received other
diversity training at Police College. She showed the Tribunal her
Police College report card (Exhibit 57), where she took Policing
in Contemporary Society. She could not recall if that course
included transsexuality, nor could she recall if the two-week
course she took prior to Police College included transsexuality.
She added that she had received “lots of training and videos”
while working for the respondent, although she does not recall
any of them dealing with transsexuality. She said that it is a
requirement to “watch training videos and sign off on them.” She
said that they also receive special bulletins, and new training
information while “on parade.” She also said they receive monthly
“hot sheets,” a type of bulletin, which cover events and crimes,
and that any new direction they are given is provided to them by
the Staff Sergeant.

[215] She testified that she was trained on conducting all types
of searches by the respondent, by the Police College and by a
coach officer. After she graduated in July 1998, she had a coach
officer from August to September 1998. Her coach officer provided
her with the policy on searching prisoners, which includes
transsexuals. She said that after arrest, a suspect is given a
“pat down” search, which includes going through the person’s
pockets to ensure there are no weapons. At the police facility,
she said that a more “methodical search” is conducted. When she
asked her coach officer how a transsexual would be
strip-searched, she was advised that it would be “up to the
officer in charge of the station.”

[216] By 1999, she believes that she had conducted about five
strip-searches herself. Whether or not an officer needs to speak
to a Staff Sergeant about whether or not to conduct a
strip-search depends on what unit he or she works in. Because she
works in the investigative bureau that is responsible for
investigating stolen automobiles, and deals in high-risk repeat
offenders, she does not have to speak to her Staff Sergeant about
strip-searches. She testified that two female officers would
strip-search a female accused, for example. When asked if she was
trained on how to strip-search a transsexual, she said she had
not been trained on this procedure.

[217] When asked if she would be willing to strip-search a
female, pre-operative transsexual, she said that she did not feel
comfortable with that, and does not feel comfortable performing a
pat-down search on a male if no male officer is available to do
it. Although she has seen some graphic images, such as traffic
accidents and suicides, she has not seen anyone unclothed.

[218] She explained that any new directives must be put into each
officer’s own copy of the Policy and Procedures Field Manual,
which she takes with her “on the road” along with a copy of the
Criminal Code, supra, and the Highway Traffic Act, R.S.O. 1990,
c. H.8. She said that she uses the Manual to refresh her memory
before she puts herself in a situation.

[219] She said that Peel is a diverse community in terms of
ethnicity and religion, and that they have a policy and procedure
on diversity. She makes a point of treating everyone she
encounters with respect.

Chuck Boersma

[220] Special Constable Charles “Chuck” Boersma testified. He
worked as a Prison Escort Officer for over fifteen years with
Peel prior to becoming a Special Constable. Part of his
responsibilities as a Prison Escort Officer was to take prisoners
from jail to what was then Clarence Court, and then bring them
back to jail again. In 1999, part of his job was to conduct
strip-searches. Those persons taken into custody at jails were
strip-searched, and those who were at correctional facilities,
such as Metro West, Metro East and the Toronto Jail, were
“randomly” strip-searched when they arrived at Clarence Court
House. He identified a diagram of Clarence Court House (Exhibit
54), and testified at length about the location of various cells.
Female prisoners were typically searched in the female bullpen
when it was empty, and then housed in female cells. There was
also a small adjoining cell for young offenders or females who do
not get along well with other females. He said that Clarence
Court could hold as many as ninety prisoners, male, female and
young offender, at any given time.

[221] He said that he had encountered some problems with
prisoners not wanting to be strip-searched.

[222] He recalled Ms. Forrester, testified that he had an
independent memory of her, and identified his notes of August
12th that he used to refresh his memory (Exhibit 58). In his
notes, he recorded returning from Maplehurst at 9:01 a.m. with a
“load,” meaning a group of prisoners from a correctional facility
in Milton. At 9:13 a.m. in his notes, he referred to Ms.
Forrester as “he/she,” which he wrote in quotation marks.

[223] He said that at the time, he had been told by someone that
they had a prisoner who had both male and female genitalia. He
said that the lower half of the strip-search had been completed,
and that the issue was the “top part” of the strip-search. He
added, “I don’t want to justify what I put, but unsure what to
put, so for brevity, or whatever the reason, I put ‘he/she’ to
indicate a person in transition.” This was his first direct
encounter with a transsexual, although he has encountered others
since then. However, in his subsequent dealings, he has not been
involved in searching them.

[224] He believes that Ms. Forrester had been at their facility
on two other occasions. He cannot recall why he was asked to
assist in the strip-search performed on Ms. Forrester. He recalls
her standing “somewhere in the middle of the bullpen,” and that
she was “wearing a white bra,” and added later that “her hair was
long and straight.” He said that his supervisor, Brian Barrett,
was there. He said that he was on Ms. Forrester’s left-hand side.
He cannot recall if there were any other officers present or
other prisoners, but said that if there had been other prisoners
present, then Ms. Forrester would have been put in a cell. Some
“negotiation” with Ms. Forrester took place, because two male
officers were present. He said that his supervisor talked to her
for about five minutes, but that the other officers did not
speak. His notes also indicated that Ms. Forrester engaged in
“passive resistance.” When asked why, he replied, “She didn’t
feel male officers should be involved. I believe she asked for
female officers to be involved for the top half, basically.”

[225] He recalled that he held Ms. Forrester by her left arm, and
that another officer had her right arm, and that her bra was
unclipped from behind by his supervisor, it fell into Ms.
Forrester’s hands, it was scanned visually, and that someone
said, “it’s over,” and that it is possible someone told her she
could get “dressed now” and that the officers closed the cell
door and left the room. He said there was no struggle and that he
did not need to hold her tightly. He admitted that he did not
have a good recollection of who was in the cell, and that it was
possible that more officers were there at the time.

[226] He also thinks that they may have offered her an incentive
to co-operate, such as reducing the number of officers involved
to two officers and the supervisor, but that she declined that
option. In the normal course of a strip-search, it would have
been performed by two officers without a supervisor, and no
extended explanations would have been offered. Because this was a
“special case it was given special handling,” by which he meant
“negotiation.” However, he confirmed that the only option given
to Ms. Forrester was a strip-search performed by male officers.
He said that the mood was “subdued” and that, “I was relieved it
was over without any physical struggle.” He cannot recall another
transsexual there that day, but thought he might have seen some
subsequent document to that effect. After the strip-search was
completed, she would have been placed in “an isolated cell by
herself in the back” for the rest of the day, because the cell
they used for the search would have been needed for other
prisoners from Metro West.

[227] Prior to 1999, he testified that he had had no formal
training in diversity, but that he had received training on the
job from a training officer after he began in 1990. He added that
every five years, he attends a one-week refresher course, and he
believes they may have included some discussions about diversity.
He has also received “use of force” training, which is a single,
two-week course, and an annual day or half-day session. He
explained that he is not a police officer, he is a court officer,
and so the course he takes on use of force is really “tailored to
the police force.” Part of the in-class training in the use of
force course is a circle that indicates various levels of force
used, from the lowest form, which is communication, to the
highest level, which is lethal force. Much of the focus of this
circular chart is on the use of an open hand, a closed hand,
since “99% are compliant or passively resistant people.” He noted
that court officers do not carry firearms, and that their focus
is on “voice and communication.” He said that they communicate
with those individuals they are strip-searching so that they
“know what we want.” He said that they successfully use
communication techniques “99% of the time” to avoid situations
“resulting in violence.” In the rare instances where they are not
compliant for a strip-search, they could be “rolled on the floor
and pepper spray could have been an option.”

[228] Special Constable Boersma had no independent recollection
of the cell location sheet for Ms. Forrester’s strip-search. He
said that the cell location sheet would normally be completed by
the key person, and kept for three to five years then destroyed.
He said that the pink sheet from the prisoner’s log is usually
given to the officer, and identified the one used in this case
(Exhibit 45).

[229] When asked why he had identified Ms. Forrester as being a
person of both genders, a “he/she,” he responded that she had
male genitalia and breasts, but added that he “did not want to
justify it today.” Today, he said that he “would’ve been more
sensitive to the fact that these are just my notes,” and that if
he had known they would be “subject to court or tribunal
scrutiny” would have said “transsexual and not the abbreviation I
did use.”

[230] He said that at the time of Ms. Forrester’s search, he had
knowledge that Metro West Detention Centre kept transsexuals
isolated while they were in jail.

[231] He testified that he recalled Ms. Forrester saying that she
did not want to be searched by males but by females. He also said
that she was not given the option of being searched by female
officers, because “that call was made by the Supervisor,” which
was based on a “determination based on genitalia below the belt.”
When asked if there had been a female officer present that day if
that would have changed the outcome, he was doubtful. He said
that while he cannot speak for his supervisor, he did not believe
that this was the issue. Certainly, what Supervisor Brian Barrett
explained to Ms. Forrester at the time was that gender was
determined by what was below the waist, and therefore male
officers were required to search above the waist as well. He
believes that Supervisor Barrett said something to the effect of
“we don’t have a choice” to Ms. Forrester, which he assumes was
because of the policy in place at the time.

[232] He confirmed that he has had no training with respect to
transsexuality. The training that he has received has had to do
with ethnic diversity.

[233] Over the last four years, he said that, “there has been an
awareness of transsexuals coming into the court system and a need
to address that situation with some sensitivity.” For example,
they now use female officers in split strip-searches of
transsexuals, which indicates a policy change. He said that all
dealings with prisoners should be on a professional level, and
that the force had a policy of non-tolerance for inappropriate
behaviour, touching, jokes or comments.

Andrew Wyatt

[234] Police Constable Andrew Wyatt testified, as the officer who
signed the releasing form when Ms. Forrester was released on May
29, 1999. He referred to his notes when he testified (Exhibit
59). Officer Wyatt is a first class police constable, who joined
the force in April 1997, after graduating Police College in
September 1997.

[235] During the relevant period of May 1999, he was assigned to
the front desk at 11 Division. Part of his duties included
uniform patrol and working at the front desk as a cell officer.
As a cell officer, he held the keys to the cell, and was
responsible for the safety of the prisoners and would assist in
searches and lodge prisoners in cells. As a releasing officer, he
would remove the individual from the place where he or she had
been housed, give them back their property from the locker, sign
off on their property and discharge them.

[236] He identified the Prisoner’s Log for Ms. Forrester (Exhibit
45) and the Prisoner’s Property Envelope (Exhibit 46).
Interestingly, he indicated to the Tribunal that the Prisoner’s
Log is the cell sheet.

[237] He testified that he commenced his shift at 0600 hours and
relieved Constable Hodgson of his duties as cell officer. He said
that he checked on Ms. Forrester on four occasions, three of
which were visual checks, which took place at 0600, 0630 and 0700
hours. The last check was electronic using the monitor linked to
the camera in the cell area. He released Ms. Forrester at 0800
hours. He said he would have made a record in his notebook if
anything out of the ordinary had transpired while he was the cell
officer, and by that he meant “injury or assault.” He said that
his shift ended uneventfully.

[238] He has no recollection of meeting Ms. Forrester, or of
Constable Mormile and Gordon being on duty on Saturday, May 29,
1999. He also cannot recall if he was told by Constable Hodgson
that Ms. Forrester was a transsexual. However, he does recall her
being housed in cell no. 6, a female cell, which was a unique
situation, and believes he would have been told why by whomever
was leaving.

[239] He received diversity training at both Police College and
from Peel, but he has no recollection of any specific training on
transsexuality. He said that he also receives informal,
day-to-day instructions from a senior officer, typically a senior
constable showing a junior officer how to do part of his or her
job. He also noted that he receives updates for the Policy and
Procedure Manual from time to time to put in his own personal
copy of the Manual, a copy of which is also kept at the front
desk. He has never performed a strip-search on a transsexual.

Steven Paiva

[240] Court Liaison Officer Steven Paiva also testified. He was a
prisoner escort officer when Ms. Forrester was strip-searched in
August 1999. He joined the force in 1992, and worked as a prison
escort officer from 1994 until 2004, at which time he became a
court liaison officer. He said that the main duties of a prison
escort officer are to provide safe and secure transportation from
the jails to the courthouse, provide security for the courthouse,
including checking the metal detectors, and to provide security
for the people in custody. Part of this role involves searching
people, cataloguing them and itemizing their property.

[241] When he first started, prior to the requirement that
officers needed to have reasonable and probable grounds,
strip-searches were the blanket policy and everyone who came in
was strip-searched. The police were looking for weapons and also
for items that the prisoners could use to hurt themselves, since
some are suicidal.

[242] He said that the usual procedure for conducting a full
strip-search was that two officers of the same gender as the
prisoner would perform the search. One officer would take notes
and catalogue all the items, and the other would check the
prisoner’s clothing and perform the strip-search. He said that he
always used the same routine, which consisted of engaging them in
some conversation, removing their articles of clothing and
starting from the top down, have them take off their shoes and
socks and pants and hand him the articles of clothing. He said he
would check the seams as well as the items themselves for
contraband, and then ask them to lower their underpants and turn
around.

[243] From time to time, he encountered resistance, particularly
if people were hesitant to remove their undergarments because
they were embarrassed. He would say that he was also embarrassed
and tell them that they only had himself and the other officer
there, no cameras were in use, and that they would do the search
as quickly as possible. In his ten years of performing searches,
he said that, “I’ve had incidents of more verbal discussion but
never had to remove someone’s clothes.” He has, however, seen
altercations break out prior to the removal of clothing, and
usually they have been resolved when the prisoner is handcuffed
and put on the ground. There have been instances where the
officer has been assaulted, but no charges were laid. That
prisoner was put in a separate cell to cool off.

[244] He has completed use of force training and said that he
believes that he uses it every time he comes into contact with a
member of the public, particularly the tactical communication
portion.

[245] He has an independent recollection of his dealings with Ms.
Forrester, but also referred to his own notes (Exhibit 60). His
notes indicate that at 9:15 a.m., he searched a female with
another officer whom he believes was Garth Huxtable, based on the
badge number he recorded. The prisoner had to be forcibly
searched by Chuck Boersma and Brian Barrett. His notes indicate,
“he is a transvestite and had male genitals and refused to be
searched.” He testified that the search took place in the female
bullpen, but could not recall why. He said that he recalls only
Brian Barrett, himself and Ms. Forrester present but that his
notes indicate “Garth and Chuck were there” but could not recall
why.

[246] He recalls Brian Barrett having a conversation with Ms.
Forrester and asking for her to remove her top, and once she did,
she did not want to take off her bra. He said that Brian Barrett
and Ms. Forrester had a conversation and that he cannot recall
the details of it. His notes indicate that Ms. Forrester was
“forcibly searched” by male officers, although he has no
recollection of that. He recalled that Ms. Forrester was
uncomfortable and that she covered her upper body.

[247] His notes also indicate that Ms. Forrester had male
genitals. In his notes, he referred to Ms. Forrester as a
“transvestite.” When asked why, he said, “at the time, I didn’t
know any difference between transgender, transvestite and
transsexual,” and added honestly, “even now, I’m not sure I’d get
them right.” He added that he intended “no derogatory meaning” to
the term he used in his notes.

[248] Prior to Ms. Forrester, he had never encountered a
transsexual before, although he has had some dealings with
transsexuals since then.

[249] His notes indicate that a “transvestite” was also brought
in that day, who may have been a transsexual. He said another
officer and he did the paperwork on this other person’s property,
but that he had no other dealings with her. This other
individual’s surname appeared on Exhibit 60, but at the request
of the respondent, no objection from the Commission or Ms.
Forrester, was struck from the record to protect her privacy, and
the Tribunal substituted the pseudonym “W.”

[250] He said that his diversity training included “race,
handicap, and hearing impairment,” but that he could not recall
anything else being included in the program. He has also received
a half-day course on diversity, and routinely receives updates to
the field manual.

Jodi Dawson

[251] Police Constable Jodi Dawson also testified. She was one of
the arresting officers in March 2001. She is a police constable,
first class rank, who joined the Peel Regional Police in February
2002, after graduating in May 2002. Her first assignment after
Police College was uniform patrol at 11 Division.

[252] She independently recalls the arrest of Ms. Forrester, and
also referred to notes she made at the time (Exhibit 61). She
said she was on shift on March 8, 2001, having reported for duty
at 2200 hours on March 7, 2001.

[253] She met with Constable Sveda, who briefed her on the
investigation and asked for her assistance. She had received his
message through the mobile data terminal in her car. He explained
that he was conducting an investigation involving a transsexual,
based on a complaint made by her ex-fiancée. The individual was
already in recognizance not to annoy or harass her ex-fiancée or
child. As a result of his investigation, there were reasonable
and probable grounds that the person was in breach of that
recognizance. The person was identified as “Forrester” and a date
of birth was given. She met with Constable Sveda at the
residential address he provided for Ms. Forrester.

[254] Both officers attended at the apartment, and Ms.
Forrester’s teenage daughter answered the door and said that Ms.
Forrester was not home. They agreed they would return to the
apartment at the end of their shift and attempt to locate Ms.
Forrester. They each went in their own cars and arrived at 4:42
p.m. They waited for five minutes and a person matching Ms.
Forrester’s description arrived home in a taxi at 4:50 p.m.
Constable Sveda approached the suspect who identified herself as
Rosalyn Forrester. Constable Sveda put her under arrest for
harassing telephone calls and breach of her recognizance. Ms.
Forrester was wearing her hair in a short afro style, was wearing
make-up, and was carrying a purse.

[255] Constable Dawson said that Ms. Forrester was “not happy to
see us” and was “argumentative about it” when told about the
allegations. She did not resist arrest nor did she use any
physical resistance, but was insistent that the officers hear her
side of the story.

[256] After Ms. Forrester was escorted back to Constable Sveda’s
cruiser, Constable Dawson said she performed a cursory search for
weapons and placed Ms. Forrester in the back of the cruiser. No
force was required to perform the cursory search or to place her
in the back of the cruiser. She had no further contact with Ms.
Forrester.

[257] Constable Dawson testified that she took diversity training
at Police College which included “human rights” and that she also
received diversity training from Peel, based on culture and
ethnicity. She said that they also receive various training
blocks during parades. She does not recall any specific training
on transsexuality prior to this incident. She said that she did
receive some training on the new policy concerning the
strip-searching of transsexuals, but could not recall the date.

[258] She said that only female officers strip-search female
prisoners. She noted that a strip-search may be invasive to the
person searched. She confirmed that since the policy had changed
to require reasonable and probable grounds before performing a
strip-search, the police relied more on metal detectors to
determine if a prisoner had any weapons. She has had some
incidents of female prisoners refusing to remove their clothing
and said that she has had “shoes and bras thrown at me.” However,
she has never had to restrain a prisoner in order to strip-search
her. She uses tactical communication to allow them to vent before
continuing on with the strip-search, in order to “de-escalate”
the situation.

[259] When asked if she would be uncomfortable strip-searching a
transsexual woman who still had male genitals, she replied, “no,
if it were part of my duties, I wouldn’t have a problem with
that.”

Ralph Jeanty

[260] Ontario Provincial Police Officer Ralph Jeanty testified,
and referred to his notes (Exhibit 62). He worked as a police
escort officer at Peel from late 2000 until 2002. During that
time, he would pick up prisoners in the morning from different
institutions, such as Maplehurst and Metro East, and bring them
back to the courthouse. He said that his duties involved
attending to their basic needs. Part of his duties also involved
conducting strip-searches on every prisoner who came into the
holding area. He said that two officers would conduct the search
for officer safety reasons.

[261] Officer Jeanty said that he had taken use of force
training, and that while the use of force wheel does not exist
anymore, it still provides officers with guidance on stages. He
said he uses his hands to restrain an accused, known as the empty
hand technique, so that the accused does not injure him – or
herself or the officer. Pepper spray and a baton may also be used
if the situation escalates.

[262] He testified that he has an independent recollection of Ms.
Forrester. He recalls that “Mr. Forrester was brought in to the
search area” and that “another officer entered the room with him”
Throughout Officer Jeanty’s testimony, he referred to Ms.
Forrester using only male pronouns, until he realized that Ms.
Forrester is a transsexual, and then changed to female pronouns
for the latter part of his testimony. The other officer who
entered the room with Ms. Forrester was Constable Vercholuk. In
Officer Jeanty’s notes, it indicates that Ms. Forrester would not
comply with the strip-search, and so he called Supervisor
Bricknell.

[263] Officer Jeanty testified that after asking Ms. Forrester to
undress, who “repeatedly refused,” Officer Jeanty said that he
had “no other alternative but to restrain him to remove his
clothing,” and used an empty hand technique to restrain Ms.
Forrester’s arms in order to do so, removing both Ms. Forrester’s
pants and top along with Officer Vercholuk. He said that it took
both himself and Supervisor Bricknell to remove her top, and that
the prisoner was “verbally abusive throughout the whole
procedure.” He added that Ms. Forrester became “less compliant as
he took off his clothing,” and that once all the garments were
removed, the “prisoner has to be completely naked so to ensure
that the prisoner is not hiding any contraband on the body,” and
that this was the practice with all prisoners at the time.

[264] He was not aware of her suffering any bruising in the
process of resisting and is certain that he did not do anything
that would have caused bruising nor is he aware of any “situation
like that” involving Officer Vercholuk, but agreed that it was
possible this occurred, although he did not see any.

[265] Officer Jeanty testified that he received diversity
training in 2000 at the Ontario Police Academy, in a course
entitled, “Dealing with Diversity.” This course did not include
transsexuality, nor did Peel offer him any training on
transsexuality.

[266] Officer Jeanty had not encountered a transsexual prior to
meeting Ms. Forrester in March 2001. Moreover, he did not know
that Ms. Forrester was a transsexual, stating that he determined
Ms. Forrester’s gender by referring to “his official papers,”
since “according to the papers, he came in as a male.” He was not
advised that Ms. Forrester was a transsexual nor that she was
transitioning.

[267] When shown the Prisoner Location Sheet, Cells Copy of
paperwork for Ms. Forrester (Exhibit 63), it states that her sex
was typed as “0” and overtop, handwritten as “M.” Officer Jeanty
said “M” stood for “male,” but could not answer what “0” stood
for, nor could he say who wrote these comments. In the bottom
right-hand corner of this document, it indicates in handwriting
that Ms. Forrester was “in the process of a sex change from male
to female,” but Officer Jeanty does not know who wrote this.

[268] Officer Jeanty identified the Prisoner Disposition Sheet
(Exhibit 64), and confirmed the information contained in the
Prisoner Location Sheet (Exhibit 65) that described Ms. Forrester
as a “male adult” and indicated that she was alone in cell no.
11, whereas all the other prisoners were housed together in
either cell no. 8 or cell no. 9. He also identified the Prisoner
Docket Court Listing, which stated that Ms. Forrester’s sex was
“M” but added, “in process of sex change M to F.”

Paul Bricknell

[269] Special Constable Paul Bricknell testified. He was a prison
escort officer with Peel at the relevant time. In March 2001, he
worked at the Davis Court. Part of his duties prior to the policy
changing was to conduct strip-searches.

[270] He said that at the relevant time, the usual procedure for
strip-searches was to ask the prisoner to strip, and to check his
ears, mouth, both sides of his hands, and feet. Some prisoners
have been found to have drugs taped to the soles of their feet or
between their shoulder blades on their backs. Others try to tape
things to the bottom of their shoes. If the prisoner had long
hair, he would make him run his fingers through his hair to check
for concealed items. He said that prisoners often put things in
their mouths, contained in foil, between their lips and teeth.
During the strip-search, he said he would make them “spread their
cheeks when they turn around because they can smuggle things in
the crack of the behind and tape things to genitals, so I’d get
them to lift them up.” He added that the prison escort officers
do not have any contact with the prisoners, they just watch while
the prisoners “did all the procedures.”

[271] Once in a while, prisoners would resist, especially if they
had been in before, but he said that this was often because they
were smuggling drugs and weapons. He also said that “manic
depressives and schizophrenics” often refused as well, or people
who felt nervous. His strategy was to keep talking to prisoners
explaining that they do not want them or others harmed.

[272] He did not have an independent recollection of Ms.
Forrester on March 8, 2001, but did have a record of the incident
in his notes (Exhibit 67). He was one of four acting supervisors
that day, and began his shift at 0700 hours. At 1010 hours, they
received six female prisoners and one male prisoner. At 1105
hours, he was called into the search room and the prison escort
informed him that Ms. Forrester did not want to be searched. They
used a little force and took off Ms. Forrester’s top, and
“inferred he is a male.” He was unable to identify the writing on
the Prisoner Location Sheet, Cells Copy (Exhibit 63) which
stated, “in process of sex change M to F.” While he was a
supervisor, he was not the key person that day and testified that
he did not know who wrote it.

[273] According to his notes, he had said to Ms. Forrester at the
time, “I informed him he is a male,” and thus would be searched
by male officers. He was unable to recall during his testimony if
he had actually said this to Ms. Forrester, and could not recall
her search. During his testimony, he said, “I believe from my
notes, believe that a male came in – just search it like a male.”
He added, “now that the policy has changed, they get a female for
the top half and just a pat down.” He also gave a recent example
of a young female transsexual prisoner, undergoing a transition,
who is now searched by a female officer for her “top” and a male
officer does a pat down search of her “bottom.”

[274] In terms of training, he could not recall being trained on
transsexuality.

[275] The next witness that the respondent proposed to call was
Caroline Molyneaux, the Detective responsible for the Race and
Ethnic Relations Bureau, to explain Peel’s policies and practices
with respect to diversity. Commission counsel objected to her
testifying, since she had been present for the evidence of all
the other witnesses, and the Tribunal had made an order at the
beginning of the hearing, excluding witnesses.

[276] Counsel for the respondent accepted that strictly speaking,
she had been present and that counsel for the Commission was
correct that she should not have been present, but that this
issue had “snuck up on us” because she had nothing to do with the
incidents per se, and did not have any issues with respect to her
credibility. Peel was proposing to call her strictly to give
general evidence about diversity training, and to explain the
overall framework, not to contradict any of the evidence given,
since one of the remedies the Commission was seeking involved
additional training. Peel wanted the Tribunal to understand the
context of what it was already doing and its mechanisms, in order
to consider what is appropriate to propose and what might be the
most effective means of training. Ms. Dinnert admitted that there
is no dispute that there is nothing in the training provided to
officers to date that include transsexuality.

[277] Prior to ruling, the Tribunal asked Ms. Dinnert to
determine if there was anyone else who worked for the respondent,
who had not been present during the testimony of the witnesses,
who could offer this evidence instead of Ms. Molyneaux. She
advised that Constable Dennis Edwards is the assistant to Ms.
Molyneaux, and that he could provide this evidence instead. The
Tribunal directed that he be called in her place on July 5, 2005,
and further directed that the respondent not discuss the specific
evidence heard with him, and counsel agreed.

Sue Watson

[278] Detective Sergeant Sue Watson testified next. She said that
she has been a police officer for about thirty years and was a
Staff Sergeant with Peel Regional Police for about eight years.
She has since been promoted to Detective Sergeant. During her
tenure, she has seen many changes.

[279] She was the Staff Sergeant in charge of 11 Division when
Ms. Forrester was brought in for booking on March 8, 2001. She
testified that she does not have an independent recollection of
the events, but that she brought her notes with her to refresh
her memory (Exhibit 68).

[280] Based on her notes, she testified that she came on duty at
6:00 a.m., on a shift that lasted until 4:00 p.m. on March 8,
2001. She said that Ms. Forrester had already arrived at the
Division but had not yet been seen by the on-duty Staff Sergeant.
She was present when Ms. Forrester was lodged in the cell area.
She testified that Ms. Forrester had been strip-searched by a
female officer who was present. Ms. Forrester was not transported
in the van with the other prisoners to court for bail processing
during the regular morning trip because of the lack of
facilities. She explained that young offenders and female
prisoners are transported separately from male prisoners.

[281] While Staff Sergeant Watson attended at the Quarter Master
stores, having left the Division to do so at 9:35 a.m., the
release data indicates that Ms. Forrester was transported to her
bail hearing at 10:30 a.m. The Prisoner’s Log (Exhibit 69)
indicates that Ms. Forrester was released to Officers Perkins and
Ball, who would have escorted her separately.

[282] Staff Sergeant Watson identified the Confidential
Instructions for Crown Counsel document that she signed as
supervisor prior to Ms. Forrester’s court attendance (Exhibit
70). Similarly, she identified the other documents that form the
“court package” from the police for use by the Crown, prepared
for Ms. Forrester, which she reviewed and authorized prior to Ms.
Forrester’s court appearance (Exhibits 71–76).

[283] To the best of her recollection, she has only encountered a
transsexual once prior to Ms. Forrester, which was ten years
before, at a different Division.

[284] She testified that she has performed strip-searches as part
of her duties, although not normally the duty of a Staff
Sergeant. When asked if female officers should be responsible for
strip-searching pre-operative transsexuals, meaning those with
male genitals, she replied, “I’ve never been expected to
strip-search anyone with male genitals in the thirty years I’ve
been a police officer.” When asked if that would be a “problem
for you personally,” she replied affirmatively that it would.
When asked why, she said, .” . . because I don’t believe I should
be searching someone of the opposite gender. Male officers search
male prisoners and female officers search female prisoners.”

[285] When asked why Ms. Forrester’s sex was marked as “0” on a
document (Exhibit 75), she said that she assumed it meant “other”
but did not know definitely what it meant. She confirmed that “M”
stood for “male.”

[286] She was not present when Ms. Forrester was strip-searched
and while she believed that the search was done by a female
officer, she did not know how it was ascertained that this was
Ms. Forrester’s preference. She confirmed that Ms. Forrester was
segregated from the other prisoners and was not treated as a male
prisoner. She also confirmed that Ms. Forrester’s personal
property logged by the bookings officer (Exhibit 76) included
earrings and a purse.

[287] In her previous experience with a transsexual, that
individual requested and received a female officer to perform the
strip-search.

[288] She outlined the training she has received on diversity
over the last thirty years, which includes classroom instruction
and written materials, bulletins, training summaries and the
Field Policy Manual, but none of it included transsexuality.
However, she was aware when the policy changed concerning the
strip-searching of transsexuals, and confirmed that when any
policy changes, all officers receive a copy of it for their
manuals. She explained that Peel has a special unit that deals
with race and diversity issues, called “Race Relations.” She said
that this unit was first created to deal with racial diversity,
and now deals with cultural issues, too. There is no separate
unit to deal with sexuality or transsexuality, and she is not
certain who sets the policy on those issues.

Kyle Binkley

[289] Constable Kyle Binkley testified. Today he is a first-class
constable, and believes that he was a second-class constable at
the time of the incident. He graduated from Police College in
January 1999 and has been with Peel for almost eight years,
having been hired by Peel in August 1998. He received diversity
training from Peel.

[290] Constable Binkley was a cells officer on March 8, 2001, and
part of his duties was to observe and log the prisoners every
half hour. He has an independent recollection of Ms. Forrester
that day, and used his notes to refresh his memory. He identified
his notes (Exhibit 77), which were recorded from 5:30 until 10:30
a.m.

[291] He noted that he saw Ms. Forrester in person at 9:00 a.m.,
and that she was in cell no. 5, which was a cell for female
prisoners. He believes the decision to put Ms. Forrester in a
female cell was made the night before by Police Constable
Denreyer, who was on shift prior to Constable Binkley. Ms.
Forrester asked permission to make a telephone call, which he
permitted, and she called Violet Forrester.

[292] Constable Binkley testified that he has an independent
recollection of Ms. Forrester as “very loud, crying and
screaming” in the cell, and that it “stuck out in my mind.” In
his notes, he wrote that a “female crying loud advising she was
not guilty and falsely arrested.” It is not common for someone
arrested to be loud, he said, and found that most individuals
calm down within half an hour of being arrested.

[293] While it was not particularly common to allow prisoners to
make telephone calls, he allowed her to do so in the hope that it
would “calm her down or at least somewhat satisfy her.” He said
that the transportation services arrive at 9:00 a.m. normally,
but that he thought she was there until at least 10:30 a.m.,
because her paperwork was not ready, and court services will not
transport someone until the paperwork is completed, and also
because the transportation was not accommodating for females at
the time. He said that typically, it is the arresting officer who
prepares the paperwork that accompanies a prisoner to the
courthouse, which in this case, would have likely been Officer
Sveda, the arresting officer. He said that Ms. Forrester was
transferred from the cell by Police Constables Perkins and Ball
(Exhibit 69) for transfer to the courthouse. He believes he
indicated Ms. Forrester’s status as a female to the cell escort
officers, since it is customary to identify issues that they
should be aware of.

[294] He described his diversity training and confirmed that he
had not received any specific training on transsexuality.

Stephanie Perkins

[295] Constable Perkins testified. She was an escorting officer
on March 8, 2001, as noted in the Prisoner’s Log. She has been
with Peel since December 1998, and graduated from Police College
in the spring of 1999. She testified that she has an independent
recollection of Ms. Forrester, and that she was using her notes
to refresh her memory (Exhibit 78).

[296] She testified that on March 9, 2001, she was working in
uniform capacity in the City of Mississauga, when she received a
request at 10:14 a.m. to attend the Division to pick up someone
in custody and transport the person to the Brampton courthouse.
She was given Ms. Forrester’s name, date of birth and the charge,
breach of recognizance. She noted that she picked up Ms.
Forrester at 10:34 a.m. and arrived at the courthouse at 10:54
a.m. She had an independent recollection of having no
difficulties with Ms. Forrester, but described her as “not happy
at the time,” and made only a “few mutterings.” She said that Ms.
Forrester appeared “very similar to what she looks like today.”
At 11:05 a.m., she turned Ms. Forrester and the package of
documents over to the courthouse.

[297] She testified that she is currently on traffic services for
the duration of her pregnancy, but that she has worked “on the
road” as an officer, and has performed strip-searches. When asked
how she handles performing strip-searches, she replied
matter-of-factly that she does them “professionally and
standardized” and that with “all bodies, you do them the same
way.” She said it is “uncomfortable for all concerned,” including
the officers. She said that she tells the individual what she is
going to do, and then what is expected, and added, “I start from
the top and go to the bottom unless they volunteer to take it all
off.” She “standardize(s) it,” so that after the person has taken
the top off, she has them put it back on, and then does the
bottom. She does “safety checks” such as looking for
needle-marks. She inspects what she has removed and places it in
a locker, showing it to them. A few times, individuals have
refused, but she has never had to use force; she has obtained
their compliance through discussion.

[298] Prior to joining the police force, she worked at Maplehurst
as a correctional officer, from 1995–97. She was responsible for
the care and custody of inmates at that facility, and performed
strip-searches on female prisoners, and on male prisoners if no
other officers were available. She said that the holding cells at
11 Division are “a lot more relaxed than at a detention centre.”
She attributes this to the fact that 11 Division does not keep
prisoners for the long term. At detention centres, officers are
not given any “use of force options,” which range from pepper
spray to a gun, and will all jump on a prisoner if “something
goes very wrong.”

[299] She testified that she was told by someone in the cell area
that Ms. Forrester was a “transsexual, whether that is fair or
not.” When asked what she meant, she said, “I don’t know what a
transsexual is, or not, to tell the truth.” She said, “I didn’t
put in my notes that Rosalyn Forrester was a transsexual woman,
it means very little to me. She’s a body, a person, treat her the
same way as anyone else in the car. Pretty straightforward.”

[300] When asked if she would have a problem with strip-searching
a transsexual woman who was in transition and had male genitalia,
she responded, “I have no problem with it. It’s just a body. I do
my job. I standardize. It might be uncomfortable, but that is
part of it as well. I don’t think it is an uncontrollable thing.”
She then added, “When I standardize it, people relax more. I
can’t control how they feel or me ... as long as standardized,
there is no problem with who we strip-search, when or where.”

[301] She testified that she checks her gun in the gun locker
before she enters the cell area, so when she strip-searches a
prisoner in the police station cell area she is unarmed.

[302] She described her diversity training and said that it did
not include transsexuality.

Aaron Sveda

[303] Constable Aaron Sveda testified. He joined Peel in December
1998, and graduated Police College in March 1999.

[304] He recalls Ms. Forrester’s arrest of March 8, 2001, and
also referred to his notes to refresh his memory (Exhibit 79). He
said that he received a radio call on March 7, 2001, at 10:28
p.m. from a residence in Mississauga, from a male complainant who
said that they had received harassing and threatening telephone
calls from his fiancée’s ex-boyfriend, and that he had taped
these calls. The caller said that they had had earlier problems
with Ms. Forrester. The caller also advised Constable Sveda that
Ms. Forrester is a transsexual. When he attended at their
residence for about one hour, they also complained that Ms.
Forrester attended their young child’s school, Ms. Forrester
being the child’s other parent (his witness statements of former
spouse and her fiancée, Exhibits 80 and 81). When he entered Ms.
Forrester’s name on the computer system, he realized that she was
on a recognizance not to contact her former partner. He left
their residence at 12:09 a.m. on March 8, 2001.

[305] He said that at 12:30 a.m., he spoke to Constable Dawson
and advised her to meet him at the residence of Ms. Forrester. At
12:41 a.m., he arrived at the location, spoke to Ms. Forrester’s
child, and left his card with her, asking that Ms. Forrester
contact him. He said that he deliberately asked Constable Dawson
to attend, because he wanted one male and one female officer
present, since he was uncertain of Ms. Forrester’s circumstances
and wanted to “respect any wishes” that she might have.

[306] On March 8, 2001, at 4:25 a.m. he received a telephone call
indicating that Ms. Forrester was on her way home. He arrived at
the scene at 4:50 a.m., and saw a taxi enter the complex at 4:55
a.m., and saw a Black female exiting the cab who matched the
description. In his notes (Exhibit 79), he described Ms.
Forrester as “believe to be him/her.” He told Constable Dawson he
was heading back to her residence and asked her to meet him
there. He arrested Ms. Forrester at 5:00 a.m., and said that she
had been consuming alcohol, had slurred speech and that she
“swore and was belligerent.”

[307] He and Constable Dawson placed her in the cruiser, although
he could not recall whether it was his car or Constable Dawson’s
and took her back to 11 Division. He confirmed that Constable
Dawson gave Ms. Forrester a pat-down search. He gave Ms.
Forrester to the female cells officer, Constable Denreyer, and
left that area. He testified that he had input into the computer
system much of the data outlining the incident that ultimately
was included as a synopsis in the court package. He did not know
that the charges against Ms. Forrester were withdrawn (Exhibit
71), and was not prepared to speculate why when asked.

[308] Constable Sveda described his training on diversity and
said that he did not recall any specific training on
transsexuality, although it was possibly discussed on parade.

Dennis Edwards

[309] Constable Dennis Edwards testified. He works in the Race
and Ethnic Relations Bureau of Peel Regional Police. Ms. Dinnert
explained that he was providing the evidence that Detective
Molyneaux would have given, as set out in her will-say, with some
modifications, since the Tribunal had ruled she could not
testify. None of his evidence was meant to impact anyone’s
credibility; rather, it was meant to explain the respondent’s
education and diversity training, in the context of the remedies
sought by the Commission. The Tribunal accepted him as a witness
and ruled that if hearsay evidence became an issue, the Tribunal
would deal with it by having that go to weight, which Commission
counsel advised resolved his concern.

[310] He testified that he has been with Peel Regional Police for
over fourteen years, beginning in uniform patrol for six years,
then working in the school liaison office for two years, and
working with the Race and Ethnic Relations Bureau since December
2003.

[311] He explained that the Bureau began in 1976 as a two-person
unit, Detective Carolyn Molyneaux and himself. They worked in a
variety of different race relations and diversity issues, and
have done all the internal and some external training. They also
monitor hate-motivated offences, do crisis-intervention and try
to enhance the relationship between a diverse community of over
one million people and Peel Regional Police. He said that based
on their statistical research through Statistics Canada,
Mississauga and Brampton are 42 percent diverse, which closely
compared with Toronto, which is 47 percent diverse.

[312] He said that he and Detective Molyneaux have been working
to build relationships with various communities, and have also
worked with various police services’ networks across the Greater
Toronto Area to develop these relationships.

[313] He testified that Detective Molyneaux has been working on
building a relationship with the (“LGBT”) community for over one
and one-half years, and that they now have contact with a group
called Peel Pride, which meets with them monthly. Peel Pride is
separate from the respondent. He attended a Peel Pride Picnic in
July 2004, and will attend another one in July 2005.

[314] The Peel Community Race Relations Committee was formed in
1989 to enhance the relationship between the diverse community
and Peel Police. It represents over 100 different ethnic groups,
has twenty-five members from the community, three of whom are
from Peel Pride, and it meets monthly. It does not have any
formal sub-committees, but smaller groups form from time to time
to work on an issue and report back to the full committee. He
said their work on diversity and youth was very successful, and
that they worked with the Board of Education and had 120 students
attend their seminar. The respondent does not have a separate
LGBT committee. Ms. Forrester noted that she had been a member of
Peel Pride in 2000, and is interested in attending its picnic.

[315] Part of their bureau’s mandate is education and training.
He said that they train all new personnel, both in uniform and
civilian, with regards to diversity issues for the respondent.
They do this through practical exercises, and power-point
presentations, which new recruits receive prior to attending
Police College. In 2004, he said they taught about four hundred
people through their presentations. They use the same one and
one-half hour power-point presentation materials for their
civilian employees, who include court officers, prison escort
officers, victim services staff, volunteers and counsellors. It
is called “Managing Diversity” (Exhibit 82). They find that it is
an opportunity to share, learn from peers, and to dispel myths
and misconceptions. They then cover the hate crimes presentation
(Exhibit 83). Both presentations together constitute between four
and five hours of training. They also provide an internal
training program for officers on Workplace Harassment, which is
meant to focus on their own internal conduct. They are trying to
decrease what is taught at Police College by covering these
sessions at Peel.

[316] During his testimony, he admitted that the respondent does
not have any connection to the transsexual community in Peel per
se.

[317] He said that he and Detective Molyneaux also provide a
presentation to front line supervisors, usually at the first rank
of detective or sergeant. They disseminate this information by
training direct supervisors. Names are put forward and they are
chosen from the list.

[318] The “Frontline Supervisors Course” (Exhibit 84) is
generally given at Police College, but Peel gives it to front
line supervisors, e.g., those newly promoted to the rank of
sergeant or detective. He said the materials for this course were
created by the Police College, not by his department.

[319] They also participate in the Council of Police Against
Racism (“COPAR”), which is a province-wide police committee that
meets to share experiences and to offer training on diversity and
race relations. COPAR organized two diversity conferences, and
has been recently renamed the Diversity Race Relations Policing
Network (“DRRPN”). Both COPAR and RRP originated to deal with
race relations issues. Detective Molyneaux represented the
respondent on COPAR and both Detective Molyneaux and he represent
the respondent on DRRPN and attend its conferences.

[320] He testified that although he was not present, he knows
that in December 2004, an instructor from the Police College
included GLBTT issues in that three-day conference and that
Cynthia Cousens participated. He said that about 130 people
attended that conference, and that it was “very, very
well-received.” Ms. Cousens also participated in a January 2003
conference, which he attended.

[321] He described the logistics of trying to train a police
force of 1,700 by way of face-to-face training. He said that it
would take twenty to twenty-five officers to do all of the
training and that they would have to hold seventy-five sessions
to have all the uniformed officers trained, and closer to 100
sessions to cover everyone. There are many emerging issues that
require training, and he said that they use other vehicles to
accomplish this objective, such as a quarterly knowledge-based
newsletter called “Hot Sheet,” which includes various police
issues and general knowledge articles, and may include recent
case law. From time to time, they issue training bulletins. They
also take issues out on parade and provide short videos.

[322] Changes to policies are contained in directives, which are
given to supervisors such as detectives and sergeants. directives
are used to address specific changes, and are reviewed with an
entire shift of officers during a parade. Once the shift of
officers have attended the parade and been advised of the
directive, each officer signs a sign-off sheet to say that he or
she has been given the directive and was present when it was
explained. He identified a directive on race relations and
anti-discrimination that was formulated by his office and which
identified the Race and Ethnic Relations Bureau on its cover as
the source (Exhibit 85). This directive indicated that a policy
that was already in place was being replaced. He explained that
policies are reviewed from time to time. Normally when this
occurs, the revised policies are given to supervisors for
discussion on parade, and may be also included in Hot Sheets.

[323] He said that Detective Molyneaux has dealings with the
Ontario Association of Chiefs of Police, which provides an
overall network across the province on diversity and race
relations officers, similar to COPAR and DRRPN, only it is an
expanded version, which is about to begin its work.

[324] He testified that Detective Molyneaux has, over the last
few months, contacted eighteen different police services,
including Australia, Vancouver and Texas, to determine how they
strip-search transsexual prisoners. He has not been a part of
this research but was aware that she had been contacting them and
gathering some policies.

[325] He confirmed what training officers receive, in the order
in which they receive it, is as follows: Managing Diversity
Course while a new recruit, with no material in it on
transsexuality; diversity training at Police College, and he
could not recall if it included transsexuality; a hate crime and
community panel session for new recruits, that does not deal with
transsexuality; the Frontline Supervisors Course, normally
offered at Police College, but that the respondent has taught,
which focuses on ethnocentricity, racial profiling and cultural
competence but contains no information on transsexuality; and
more recently, conferences offered at Police College, which Ms.
Cousens helped teach, which do include transsexuality.

[326] He said that the respondent produced a Hate Crime
Presentation based on sexual orientation (Exhibit 83), but it
does not include transgender or transsexual individuals in its
analysis, either. He also referred to a diversity calendar,
available at parade since January 2005, which provides officers
on the road with the dates of all holidays and other significant
events.

[327] At the end of the respondent’s case, Ms. Dinnert provided
the Tribunal with stipulations regarding the lack of testimony
and missing notes of Catherine Denreyer (Exhibit 89), the lack of
testimony of Ryan Ball with his notes attached (Exhibit 90), and
the lack of testimony and notes of Allan Vercholuk (Exhibit 91).
Ms. Dinnert made a stipulation that each of them had left Peel
Regional Police, and further, that each of them had little if any
independent recollection of what occurred.

[328] Mr. Vercholuk’s notes were the most detailed. He was a
Prison Escort Officer on duty on March 8, 2001, at Davis Court.
He carried out the strip-search of Ms. Forrester on that date
with Officer Jeanty, under the supervision of Paul Bricknell. Ms.
Dinnert made a stipulation to the Tribunal that Mr. Vercholuk has
no independent recollection of the events, except that he did
search a transsexual person. Mr. Hadibhai requested that the
Tribunal compare his notes to the last two sentences of Officer
Denreyer’s notes (Exhibit 89). The Tribunal accepted the notes
and held that it would determine what weight to give Mr.
Vercholuk’s notes, if any, since he did not testify. Mr.
Vercholuk’s notes, dated “Thursday, March 09/01” state:

1110 SEARCH PRISONER FORRESTER, LESLIE WITH OFFICER SIOC.
PRISONER FORRESTER REFUSED TO BE SEARCHED BY MALE OFFICERS,
REQUESTED FEMALE OFFICERS CLAIMING HE IS A WOMAN BECAUSE HE HAS
BREASTS. EXPLAINED TO PRISONER FORRESTER THAT HE WOULD BE
SEARCHED BY THIS OFFICER & OFFICER JEANTY. PRISONER FORRESTER
REMOVED ALL OF HIS CLOTHING EXCEPT HIS SHIRT & BRA – REFUSING TO
REMOVE REMAINDER OF CLOTHING UNTIL FEMALE OFFICER PRESENT.
INFORMED THE PRISONER THAT FORCE COULD BE USED TO CONDUCT A
SEARCH, INSTRUCTED HIM TO REMOVE REMAINDER OF CLOTHING & REFUSED
AGAIN.

AT THIS TIME MYSELF & OFFICER JEANTY WITH SUPERVISOR BRICKNELL
PRESENT REMOVED THE REMAINING CLOTHING & COMPLETED THE SEARCH
WITHOUT FURTHER INCIDENT.

[329] The Tribunal is prepared to give the notes of Mr. Vercholuk
some limited weight, since they demonstrate Ms. Forrester did
assert herself as a woman on March 9, 2001.

[330] Ms. Dinnert also chose to file with the Tribunal the
Section 36 Case Analysis Report (Exhibit 92), even though the
investigator who prepared it did not testify. Again, the Tribunal
accepted the document and ruled that it would determine what
weight to give it later, if any. Again, the Tribunal has
determined that it is fair to give it some limited weight,
although nothing hinges on it.

[331] The Commission and complainant chose not to call any
evidence in reply. Since all the issues as framed were before the
Tribunal at this time, it permitted all the parties to have some
time to file their final written closing submissions and also
permitted them the opportunity to make oral closing submissions
on October 27, 2005.

FINAL WRITTEN SUBMISSIONS

[332] In its written final submissions, the Commission argued
that Ms. Forrester is a woman and that the use of male officers,
even in part, to strip-search her was discriminatory and violated
her rights under the Code. As a result of this alleged
infringement, the Commission requested that the Tribunal order
the respondent to amend their practice of deciding whether male
or female police officers conduct a strip-search based on the
genitalia of a detainee. Instead, the Commission submitted that
individuals who self-identify as transsexual, regardless of
whether or not sex reassignment surgery has been completed, be
given the choice of the gender of the officer who conducts the
search. It submitted that a split search imposed without a choice
does not rectify the sex discrimination. In terms of public
interest remedies, the Commission asked that beyond a revised
policy, the respondent should be ordered to provide all of its
officers with a mandatory workshop on the implementation of any
revised policy, since it was clear from the evidence of the
officers that they have had little, if any, training about issues
involving transsexuality.

[333] In Ms. Forrester’s final written submissions, she
highlighted the expert testimony provided by Ms. Cousens, Dr.
Steele and Dr. Toplack about the need to treat transsexuals “in
the gender they know themselves to be.” Further, she referred to
the testimony of Dr. Toplack when asked about the likelihood of a
non-transsexual, such as a cross-dresser, asking to be searched
by a female officer and claiming to be transsexual, where he
indicated that, as she put it, “it’s incredibly hard for a
transsexual person to want to share such person [sic] information
about themselves, it would be even less likely that a
non-transsexual person would make that claim.” Moreover, she made
the point that a transsexual person should always be given the
choice of the gender of the person who searches him or her,
since, depending on their stage of transition, he or she may not
wish to “out” him – or herself. She urged the policy to be based
on self-disclosure, since this is how the police find out about
health or religious issues from detainees.

[334] Ms. Forrester also urged the Tribunal to require full
training of officers with the complete support and communication
of the transsexual and intersex community. She applauded the fact
that Ms. Cousens had been offering training to some police forces
and urged the Tribunal to require the training to be conducted by
either a member of the trans community or by a[n] intersex person
or by a medical specialist.

[335] The final written submissions from the respondent were
filed last, and indicated that a settlement had been reached on
all issues except whether the respondent should be ordered to
adopt and implement a certain policy, and if so, the appropriate
form of policy and implementation.

[336] In its efforts to “take a lead on the treatment of
transsexuals by Police,” it offered the Tribunal a new policy to
review, attached as Schedule “A,” and an implementation plan,
attached as Schedule “B,” which it was prepared to voluntarily
undertake. However, they submitted that the strip-searches
performed on Ms. Forrester, “in the context of the time, was not
discriminatory, and if technically discriminatory, was not such
as should attract punitive sanctions by way of ordering them to
adopt a specific policy and training program.” It submitted that
the new policy and implementation plan proposed were “eminently
reasonable” and urged the Tribunal not to “dictate the finer
points of a policy form and implementation.” It urged the
Tribunal to be cognizant of how little was known about
transsexuality in 1999, even by the experts who testified, and
that Vancouver Rape Relief Society v. Nixon (No. 2) (2005), CHRR
Doc. 05-706 [reported 55 C.H.R.R. D/67] (B.C.C.A.); appeal from
(2003), 48 C.H.R.R. D/123 (B.C.S.C.); reversing (2002), 42
C.H.R.R. D/20 (B.C.H.R.T.) was decided after these events
occurred.

FINAL ORAL SUBMISSIONS

[337] There were some additional modifications made during the
final oral submissions from the written submissions filed, which
are worth noting for the sake of completeness.

[338] Commission counsel confirmed that neither the Commission
nor Ms. Forrester would be seeking any monetary award, and that
the only issues remaining were related to public interest
remedies.

[339] He argued that Ms. Forrester was strip-searched by male
officers, except for one search by a female officer at Ms.
Forrester’s request on March 8, 2001, at 11 Division, and that
this was the only time when she was properly and fully
accommodated. He noted that in para. 7 of the respondent’s final
submission, it admits that this would have been upsetting to Ms.
Forrester.

[340] Commission counsel submitted that the evidence showed that
the respondent’s strip-search policy depended entirely on whether
or not a trans woman still had a penis, and if it had been
surgically removed, then the problem was resolved.

[341] He submitted that it is trite law that the infringement of
the Code does not need to be intentional, and since the Code
prohibits sex discrimination, the argument that the respondent
could not have known better in 1999 or 2001 is immaterial. He
urged the Tribunal to look at the effect on the complainant and
not the intention of the respondent, arguing that the Code is a
remedial statute, as per Ontario Human Rights Commission and
O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 [7 C.H.R.R.
D/3102] (“O’Malley”). He also urged the Tribunal to make an order
on public interest remedies, in a remedial and non-punitive
manner, rather than adopt the respondent’s call for voluntary
action.

[342] He cited a number of authorities dealing with
transsexuality as a form of sex discrimination and noted that in
none of these cases, did the decision-maker refuse to grant
orders based on the newness of this area of law. Moreover, if the
Tribunal finds that the respondent discriminated against Ms.
Forrester on the basis of sex, then he suggested that the Code
requires a finding of remedy, and that the appropriate remedy is
for transsexuals to be given a choice about the sex of the
officers who search them, because this choice is critical to them
and as detainees, as they are in a vulnerable position. He also
called for the respondent to be ordered to provide training
workshops on issues of transsexuality to all of its officers,
because a revised policy, without training, would be ineffective,
and suggested that three months would be a reasonable time-period
to fulfill such an order.

[343] Commission counsel referred to the Model Protocols on the
Treatment of Transgender Persons by San Francisco County Jail,
which he put in his final brief, to which the respondent also
referred. It provides that strip-searches of transsexuals ought
to be conducted by two persons of the sex requested. Commission
counsel also noted that the respondent’s proposed new directive
includes a choice for transsexual and intersex persons, and while
intersex persons are not part of this complaint, he appreciated
the inclusion of them and thanked the respondent.

[344] In terms of the respondent’s proposed new policy where it
calls for verification, he asked rhetorically who should make the
final call when in doubt, should it be the transsexual detainee
or the Officer-in-Charge? While the respondent would like the
Officer-in-Charge to be able to make the final call, the
Commission believes that the benefit of any doubt should be
accorded to the detainee, because the consequences of an error to
the well-being of a transsexual outweigh the need to prevent
false claims of transsexuality. He added that there has been no
evidence of false claims of transsexuality. Moreover, he said
that the respondent accepts the information provided from a
detainee about a medical condition or a need for prescription
drugs. There has been evidence that it is difficult to admit to
being a transsexual, and urged the Tribunal not to assume that a
large number of false claims will be made.

[345] Commission counsel also commented on the Friend’s
submission that if an officer is extremely uncomfortable and
another officer of the same sex is available, that the second
officer should perform the strip-search and the first officer be
allowed to opt out, on the basis that the transsexual detainee
would still receive the strip-search from the officer of the sex
chosen. He submitted that this was a dangerous precedent, and
would not be allowed for a clerk who refused to serve someone
because of his or her nationality, for example. He referred to
the distinction in Trinity Western University v. British Columbia
College of Teachers, [2001] 1 S.C.R. 772 [39 C.H.R.R. D/357]
(“Trinity Western”) between the freedom to hold beliefs and the
freedom to act upon them, and said that for the opt-out to be the
correct answer, it would need to be linked to a protected ground
under the Code or Charter. He submitted that distaste for
transsexuality is not a protected ground. However, he said that
it could be a valid request if a female officer had been the
victim of male sexual violence, for example, since she would feel
trauma above the level of personal discomfort. He urged the
Tribunal not to create a blanket opt-out clause for human rights
cases based only on preferences.

[346] Commission counsel also referred to the respondent’s tab B
– Policy and Training Roll-Out. He suggested that the Tribunal
might want to include parts of it in its order, because it
suggests a way to provide training, by training all the new
officers and providing existing officers with hot sheets and
parades. He suggested that officers would benefit from hearing
from an expert like Ms. Durand, because it would change
attitudes. In terms of the reference to the roll-out in
materials, he suggested that the term “cross-dressers” be
substituted for “transvestites.”

[347] Commission counsel noted that the inclusion of experts was
partly covered by the respondent’s submission, but he is
concerned that Ms. Cousens might be busy, and he asked the
Tribunal to make an order so that other experts in the field, not
just Ms. Cousens, could provide expert training.

[348] Commission counsel also suggested that while it was a good
thought to include Ms. Forrester in their community outreach,
there was no reason to limit it to her, and others in the trans
community might want to participate.

[349] Commission counsel made two final submissions, the first
being that the law is settled that intention is not the issue,
the issue is the effect of what has occurred on Ms. Forrester,
and secondly, urged the Tribunal to make an order that deals with
the outstanding public policy issues so that other police forces
can review the decision and hopefully determine that they ought
to match whatever Peel is doing. While there remain some points
of serious disagreement, he sincerely thanked the respondent and
its counsel for saying that they will voluntarily provide
transsexual detainees with a choice of the sex of the officer who
should conduct strip-searches.

[350] Ms. Forrester asked the Tribunal to realize that she is a
woman, and that as such, she requested to be searched by female
officers, and in all the incidents under review, only once was
this request respected.

[351] She rejects the submission of the respondent that since no
policy was in place in 1999, it was acceptable to treat someone
[the] way she was treated. She said that if the issue were
disability, instead of transsexuality, there would be no issue
that the individual should be treated with respect and dignity.
Moreover, she disputes the assertion that the respondent did not
know she was a transsexual, and referred to the notes of Officer
Fischer, which said that she was involved in a “sex change.” She
maintains that she experienced negative behaviour on the part of
some of the officers due to her transsexuality.

[352] She submitted that Ms. Durand was correct that a person
ought to be treated as he or she self-identifies, and urged the
police to review the medical literature that has documented the
history of transsexuality at least since Christine Jorgensen in
1952. Moreover, she believes that other police forces around the
world began looking at the issue in the mid-1980s.

[353] She disputes the assertion of the respondent that she was
in the early stages of transition at the time of these incidents,
and asserts instead that she was in the second-year of her
transition.

[354] Ms. Forrester was adamant that without an order indicating
that split searches are a violation of the Code, that another
transsexual woman might be traumatized the same way she was. She
finds it difficult to discuss the impact of what she felt, and
said that on their part, it was “just an act of ... ignorance.”
She added, “no other woman would be forced to remove their
clothing, no other woman would have their clothing forcibly
removed.” While she appreciates that the respondent is finally
putting together a policy, she believes it should have occurred
much sooner, to “protect trans and intersex people.”

[355] She commented that the definition offered in the
respondent’s new policy of intersex may be lacking, and suggested
that the respondent needs more community input, because not all
intersex people are identified at birth, for example. Similarly,
she maintains that a true trans person is someone who has
self-identified, and eventually sought medical help. She is
concerned that the new definition, as proposed, is too focused on
a diagnosis of GID as a way of defining who is a transsexual.

[356] Ms. Forrester also objects to the notion that a detainee
should be required to answer questions posed by a police officer,
stating that if someone else claims to be Sikh, the police do not
question him or her. It is “good enough” for someone to state
that he or she is Sikh to be treated as such. She believes that
this distinction is “sexual apartheid” and added that, “public
space should be home space as much as possible.”

[357] She noted that at the time of her arrest, her name on her
identification documents was female. However, she said that many
transsexuals are impecunious and lack the resources to change all
of their documentation, and so she believes that this is an
unfair question to pose. As well, she said that disclosing one’s
transsexuality to all of one’s family and friends is “scary” and
so she believes that self-identification to a police officer
already shows that the individual has “taken one hell of a big
step demonstrating being that way.” She also stated that some
individuals cannot take hormones or have sex reassignment
surgery, or it is against his or her belief system to do so, and
as such, this should not be asked, either.

[358] She applauded the voluntary move of the respondent to
include a choice for trans and intersex people, and said that it
mirrored the evidence given by Dr. Steele and Dr. Toplack that
transsexuals need to be given a choice about the sex of the
officer who strip-searches them. She believes that in the United
Kingdom, both the transsexual person and the officer must sign a
document indicating that such a choice was offered and made,
adding that it protects them both.

[359] Ms. Forrester echoed the remarks made by Commission counsel
that the back-up officers to the officers performing the search
should be consistent in number with any other search.

[360] She expressed her willingness to participate in a community
outreach program with Detective Molyneaux, but said that others
should be afforded the same opportunity. She knows of ten to
fifteen other community members living in Peel who might be
willing to participate. While she was uncertain if she wanted to
participate in a training program, she said that she “absolutely”
was willing to be a resource.

[361] She wanted to explain, “wrapping everything up,” how she
felt from this experience, as follows:

I found myself forced to do this whole route. As a woman, I
wasn’t being respected as a woman, and was being told I wasn’t a
woman, or in some documents my sex was “zero” – what does that
mean, I’m a thing? It’s horrendous to be – I don’t know how to
describe how I felt, completely put out there, so everybody could
see how I felt about what happened to me. As much as I need to
move on and can go on with my life, and I don’t feel like getting
off trains and buses when a man sits beside me ... I guess the
best word I can come up with is “brutalized.”

[362] She reiterated what she has said previously in testimony
about the impact of these events on her psyche, stating that she
felt as if she had been “raped.” She said that she “did not want
to come forward,” but felt that it was the only way to “change it
so that no one else has to go through this – is to come here,”
adding that she had not dealt with these feelings in counselling
yet.

[363] Ms. Dinnert provided the Tribunal with the respondent’s
closing submissions. She noted that she agreed with Mr. Hadibhai
that the issue properly boils down to a question of how
transsexuals should be strip-searched, but unfortunately, that
was not the way the case began.

[364] Because of the way in which the amended complaints were
framed, she said that numerous aspects of every encounter Ms.
Forrester had with the respondent were brought before the
Tribunal, and framed as deliberate acts of harassment.
Allegations were also made that the police had used Ms.
Forrester’s family issues as a means to harass her (Exhibits 21
and 9). At one point, Ms. Forrester had told her doctor that the
police were her former spouse’s “private army.”

[365] Ms. Dinnert expressed the concern that all of the
difficulties that Ms. Forrester faced, whether family problems or
related to her transition, were laid at the feet of the police.
It was portrayed as if the police were at fault for arresting
her, when in fact, it was because of the repeated, serious
complaints of her former spouse. Such wide-ranging and extensive
complaints were not reasonable and “distracted from the core
issues, which were legitimate.” She said that it is a distortion
for the Commission to say that it took a hearing for the police
to come to the point that it reached today, when much of the
hearing was taken up by extensive, unfounded and unfair
complaints. She maintained that if the issue had been distilled
earlier, if the expression was made on behalf of transsexuals as
it was in the evidence provided by Ms. Cousens and Ms. Durand,
then it would have been resolved a long time ago.

[366] Ms. Dinnert said that there is medical evidence that Ms.
Forrester went through a very emotional and turbulent time, and
that she suffers from paranoia and social phobia, and suggested
that the Tribunal weigh this evidence when it considers what Ms.
Dinnert characterized as the “wrongs done on both sides” and
asked the Tribunal to “look for a reconciliation on both sides
and in the interests of going forward and in light of the larger
community interests apart from the specific parties here.”

[367] She said that the respondent is prepared to go forward with
the new policy as submitted, and that it is prepared to accept
the choice requested in the manner in which strip-searches are
conducted on the transsexual community.

[368] Ms. Dinnert maintained that in terms of the core issues in
this case, the police never deemed Ms. Forrester to be a
transsexual in transition on the occasions in question. She
submitted that, perhaps in a clumsy way, the police had made an
attempt, in varying degrees, to accommodate her. The split search
policy was a good-faith effort to accommodate transsexuals, which
the respondent believed was acceptable as a compromise at that
time. She invited the Tribunal to review Exhibits 5, 18, 20, 7
and 22, to determine if, in fact, Ms. Forrester had wanted split
searches at the time. Having made that point, Ms. Dinnert said
that if the transsexual community wants a choice and not a split
search, the respondent is willing to provide that choice.
Moreover, she submits that the whole concept of gender identity
as something different from sex was just emerging during that
time period, medically, legally and even in the transsexual
community.

[369] She urged the Tribunal to recognize that the respondent did
not intend to discriminate, and while she acknowledged the
caselaw, such as Golden, supra, and R. v. Mattis, [1998] O.J. No.
4332 (Ont. Prov.Ct.) (“Mattis”) she asked that the remedy reflect
this unintentional discrimination and asked that the remedy not
be punitive in terms of the level of detail imposed or the
intrusion into police practices, but rather give the respondent
some credit for its efforts.

[370] Ms. Dinnert asked the Tribunal to recall the evidence given
by a number of officers that they use their best efforts to
secure cooperation from detainees rather than invite conflict.
Generally, it is in the best interest of the police to accept
self-identification. However, she urged the Tribunal to consider
the difficulty faced by the police, who may be dealing with
difficult people. As Ms. Cousens testified, the police may
encounter people who misrepresent and manipulate in order to
intimidate them, and that the police have a legitimate concern
with officer safety.

[371] She submitted that, in an exceptional case, where an
officer exercising his or her judgment, in good faith, has a
doubt about the self-identification offered by the detainee, then
the officer should be able to defer to the Officer-in-Charge for
a final determination of the matter. The proposed new policy is
explicit: if the officer has some doubt, he or she must record
the reasons for this doubt, and then defer to the
officer-in-charge, only after asking the questions outlined, as
proposed in the evidence of Ms. Cousens. Ms. Dinnert said that
Ms. Cousens was quite clear about the distinction between a
transsexual and a cross-dresser and her evidence was that those
persons who are not transsexuals should not be accorded the
treatment proposed. For the record, Ms. Dinnert is willing to
change any references to the word “tranvestite” to
“cross-dresser” in their proposed new directive.

[372] Ms. Dinnert also submitted that if a detainee states a
medical condition and the need for prescription drugs, the police
do not automatically provide the drugs without asking further
questions, to prove there is a prescription, the name and contact
information of the doctor who prescribed them, just as Detective
Sergeant Rocha did in this case in order to obtain Ms.
Forrester’s prescription drugs from Ms. Forrester’s doctor. While
there may not be a “ton of false claims” as Ms. Forrester put it,
there needs to be a way to cover the exceptional case, as Ms.
Durand had said, and asked the Tribunal to find that concern
legitimate. In this way, transsexuals are offered a choice, but
the police have a way of screening out manipulative detainees who
misrepresent themselves. The purpose of a strip-search is to
intercept weapons and drugs, it is no longer used for the
ordinary processing of prisoners, and so the consequences of a
manipulation could be very serious, for the safety of officers
and other prisoners.

[373] In terms of the number of back-up officers, Ms. Dinnert
said that the proposed policy would require the same number of
back-up officers whether the strip-search was for a transsexual
person or any other person, no distinction was made, the police
standard would be the same.

[374] With respect to the opt-out issue, Ms. Dinnert said that
this was the concern of the Friend, out of respect for the
dignity of their members. In her submission, if there is no
unreasonable prejudice to the transsexual person, then there
should be no reason why the order should not include something to
respect the dignity of individual police officers. She felt that
it was not a dangerous precedent, as argued by Mr. Hadibhai,
because the officers who do not have any feelings of discomfort
would still perform the search, and those who do feel discomfort
should not have to engage in “an act of some intimacy,”
distinguishable, in her view, from service in a store, for
example, and compared it to a female patient who wants a female
physician, because the exchange is one of some intimacy. She
views it as a harmless accommodation for the female officers who
wish to exercise it, and said that it would be relatively
seamless since it is predicated on another female officer who was
willing to perform the search being present. When asked, Ms.
Dinnert advised the Tribunal that this opt-out as described in
the new proposed policy satisfies the concerns of the Friend.

[375] Ms. Dinnert said that it was unreasonable to order the
respondent to undertake a training workshop conducted by a
transsexual or other expert for all its officers, since it has a
force of about 2,000 officers. She urged the Tribunal to consider
the fact that the respondent has competing priorities and that
this would be a large allocation of resources within a timeframe,
when a large percentage of the police force would have no reason
to have any possibility of strip-searching transsexuals, since
the officer would need to have reasonable and probable grounds to
conduct a strip-search, and the evidence in this hearing
demonstrates that transsexuals are an extremely small proportion
of society generally. Many of their officers on the force deal
with issues of audit and fraud in records, and have no need for
this training.

[376] Rather than a long course, Ms. Dinnert suggested an
explanation given at parades. The respondent has also been
considering the development of training videos which could be
shown to existing officers at parades, but had no precise
position on this when asked, except that they would need to be
given some time to produce the videos. She advised that Detective
Molyneaux has been in con[ta]ct with Ms. Cousens to tell her of
this proposal. She said that Ms. Cousens made no direct
commitment, but did “acknowledge acceptance of the vision.”

[377] Just as Ms. Cousens and Ms. Durand had success by giving
credit to their audience, and by taking a balanced approach with
an understanding of police issues, Ms. Dinnert said that it would
be most appropriate and successful for this Tribunal to give
credit to the police, and allow the force to improve and advance
in the manner it proposes.

[378] In reply, Mr. Hadibhai submitted that whatever deeply held
feelings Ms. Forrester has about the police generally, she must
be “allowed to own those” since they are her feelings and she was
repeatedly strip-searched by male officers despite her
objections.

[379] He reiterated the key points from his final submissions and
maintained that the referral was actually narrow, since the core
issue has always been about strip-searching transsexuals. He
pointed out that it took a full hearing for the respondent to
develop a new policy, and maintained that it would be much better
for the Tribunal to make an order on the major issues before it,
but agreed with Ms. Dinnert’s submission that micro-management of
the details was unnecessary.

[380] Ms. Forrester asked that the Tribunal consider that
officers may move internally or have their duties re-designated,
and urged the Tribunal to require training for all officers, even
those in the Fraud Squad.

[381] She was very positive about the testimony of Ms. Cousens
and Ms. Durand, but asked the Tribunal to be cognizant of the
fact that Ms. Durand never had to go before a Tribunal to pursue
her human rights, because she was given complete acceptance by
the Canadian military. Similarly, the Ottawa Police Service
sought out Ms. Cousens and requested her assistance, something
that Ms. Forrester also gave them credit for doing.

[382] She reiterated her earlier submission that the police, like
doctors, do not choose what individuals they are going to see,
and because they are professionals, they are expected to do their
duty. Her submission is that all professionals not be given a
choice of whether or not to treat transsexuals.

[383] She agreed with Ms. Dinnert’s characterization of her as an
activist, and said, “if I don’t stand up for my rights, who is
[sic]?” She views herself as a person who “went through a
horrible ordeal and said no one should have to do that.” She
noted that the earlier directives created by the respondent to
cover strip-searching transsexuals were written without any
community involvement.

[384] In an effort to be helpful, Ms. Forrester suggested that
the respondent also seek advice from the Sherbourne Centre and
The 519, since they have outreach groups that could provide
useful input.

[385] Ms. Forrester said that she would be agreeable to the
police being trained on transsexuality issues with videos, and
said that she understood that one-on-one training of 2,000 people
could be very difficult to achieve.

[386] Finally, she expressed concern with any focus on the
phrase, “committed to transition” since it can take years to know
that about yourself and that it is a “difficult thing.” She
believes that self-identification as a transsexual is sufficient,
and that the person should be taken at his or her word, in the
same way that members of other diverse groups would be.

SUMMARY OF FINDINGS

[387] The following is a summary of the Tribunal’s relevant
findings of fact:

(1) Ms. Forrester both self-identifies as, and has been medically
diagnosed as, a transsexual woman, which is not in dispute. The
Tribunal hereby finds that she is a transsexual woman.

(2) Ms. Forrester was strip-searched by male officers during her
second search on May 29, 1999, and again August 12, 1999, and
given a “split” search performed by male and female officers
during the first search on May 29, 1999, although she had
requested female officers perform these searches.

[388] The following is a summary of the Tribunal’s findings of
law:

(1) Transsexuality falls within the meaning of “sex” under the
Code.

(2) As admitted by the respondent, her right to equal treatment
with respect to services without discrimination based on sex was
unintentionally infringed, contrary to ss. 1 and 9 of the Code.

(3) The ordinary process of strip-searching a detainee conducted
by the respondent, based on a rudimentary, binary notion of sex,
was a significant affront to the dignity of Ms. Forrester.

(4) The split search, which was performed with good intentions to
accommodate Ms. Forrester, was also an affront to her dignity and
personhood.

(5) The Tribunal accepts the submission of respondent’s counsel
that the discrimination was unintentional, that society as a
whole generally lacked knowledge about transsexuality at the time
of her strip-searches, and that the respondent was acting in good
faith when it advised the Tribunal that it plans to improve its
practices.

(6) Nevertheless, it is appropriate to order some public interest
remedies in this case to ensure that with respect to future
practices, the educational needs of police officers are met, and
also, to establish some critical benchmarks that need to be met
in the respondent’s revised directive concerning the
strip-searching of transsexuals.

Transsexuality is Medically Recognized

[389] In her expert testimony on the health issues faced by
transsexuals, Dr. Steele explained what is meant by Gender
Identity Disorder (“GID”). She described in detail how it has
been recognized by the American Psychiatric Association, in its
key publication, the DSM-IV, and what the major criteria are for
a diagnosis of GID. See: §59–62.

[390] Human rights jurisprudence now accepts the DSM-IV’s
criteria as the appropriate medical standard to apply. See:
Sheridan v. Sanctuary Investments Ltd. (No. 3) (1999), 33
C.H.R.R. D/467 at §35 (B.C.H.R.T.); and Canada (Attorney General)
v. Canada (Human Rights Comm.) and Kavanagh (2003), 46 C.H.R.R.
D/196 at §3 (F.C.T.D.). As Adjudicator Humphreys found in
Sheridan, supra, at §92:

The medical profession is more able to address the complexity of
the male-female continuum, perhaps because it is a profession
which deals with human beings as they actually are, with all
their ambiguities and contradictions. Dr. Robinow’s evidence made
it clear that in some individuals there is a lack of congruence
between the various indicators of sex. In the case of
transsexuals, there is a complete disassociation between their
physical sex and their subjective experience of their masculinity
or feminity.

[391] Moreover, Dr. Steele said that while the terms
“transsexual” and “GID” are often used interchangeably, the term
transsexual does not necessarily connote significant distress,
but the term GID does. Thus, as she put it, “everyone with GID is
transsexual, but not all transsexuals have GID.” See: §60.

[392] In Ms. Forrester’s case, both her physicians assess her as
feeling real distress about her body, since it does not represent
her gender to her. Both have applied the major criteria from the
DSM-IV to diagnose Ms. Forrester as having GID. Ms. Forrester’s
own evidence is also consistent with this diagnosis, particularly
when she testified that she dislikes seeing herself nude in the
shower and had torn up her childhood photographs. The Tribunal
finds that Ms. Forrester is a transsexual, and that she has also
been formally diagnosed as having GID. See: §29, 30, 59 and 77.

[393] The article, “Transgender Health,” submitted in evidence by
Dr. Steele, is read with great interest. It is clear from this
article, and from Dr. Steele’s testimony as a clinician, that
transsexual and transgender individuals often avoid routine
medical examinations, avoid going to family physicians, and that
full medical examinations pose the risk of causing “very major
distress.” Dr. Steele said that she weighs the medical benefits
of such examinations against the risk of distress, and offers her
transsexual patients counselling before performing them. This
regrettable outcome is consistent with their strong feelings of
discomfort about their biological sex and their negative body
image. It indicates to the Tribunal that transsexuals have unique
needs with respect to how others, including various
professionals, treat their physical shell that require training
and sensitivity.

Ms. Forrester Was Strip-Searched by the Respondent

[394] Now that the respondent has admitted liability and settled
with Ms. Forrester, there is no need to parse the evidence to
determine the details of the manner in which she was
strip-searched, nor is it helpful to make findings about whether
or not she was mocked or otherwise harmed, intentionally or
otherwise, by any officers. There is also no need to delve into
Ms. Forrester’s overall psychological state, her admission that
she was hiding from the police, nor the repeated complaints that
the police had received about her. In this respect, the Tribunal
is prepared to accept fully the submission by Ms. Dinnert that in
examining the genesis of these incidents, there were “wrongs done
on both sides.”

[395] Suffice it to say that with respect to the matters before
the Tribunal, Ms. Forrester was strip-searched three times. She
was strip-searched by male officers during her second search on
May 29, 1999, and again on August 12, 1999, and given a “split
search,” in a well-meaning, albeit unsuccessful effort, to
accommodate her, during the first search of May 29, 1999. The
first strip-search was a “split search” performed by Contable
Hodgson and Detective Sergeant Rocha. The second strip-search was
performed at Clarence Street Court by Special Constable Magill,
Special Constable Huxtable and Supervisor Dale. The third
strip-search was performed by Supervisor Barrett, Special
Constable Huxtable and Special Constable Boersma, before her
remand at court. Based on the evidence of Ms. Forrester and of
the officers, the Tribunal finds that Ms. Forrester was
humiliated by these strip-searches, because she did not want to
be searched by male officers.

[396] For the purpose of rendering a determination with respect
to the outstanding public interest remedies, a number of findings
of fact are made herein. First, the Tribunal accepts Ms.
Forrester’s evidence that these incidents were profoundly painful
for her because she is a transsexual, and a woman. Secondly, it
also accepts the evidence of Dr. Steele that as a result, Ms.
Forrester had a “situational crisis.” Thirdly, it also accepts
the submission made by counsel for the respondent that it did not
intentionally violate her rights under the Code, and that it
simply performed these strip-searches while she was a detainee in
accordance with its normal practice at the time. However, as will
be discussed below in more detail, the Tribunal finds that most
if not all of the officers who had dealings with Ms. Forrester
were quite unfamiliar with transsexuality. Thus, it finds that
the respondent needs to provide some educational training to its
officers and amend its directive.

“Services” Includes Strip-Searches

[397] The enumerated ground of “services,” established by §1 of
the Code is not defined. See: Braithwaite v. Ontario (Attorney
General) (No. 1) (2005), CHRR Doc. 05-470 [reported 54 C.H.R.R.
D/116] at §20.

[398] Thus, consideration has been given to dictionary
definitions of the terms “service” and “services.”

[399] The New Oxford Dictionary of English (“Oxford Dictionary”),
2d ed. revised, Oxford University Press: 2005, defines “service”
as follows:

Service noun 1. [mass noun] the action of helping or doing work
for someone: millions are involved in voluntary service ... 2. a
system supplying a public need such as transport, communications,
or utilities such as electricity and water: a regular bus
service. 3. a ceremony of religious worship according to a
prescribed form: a funeral service. 4. a periodic routine
inspection and maintenance of a vehicle or other machine: he took
his car in for a service. 5. [with modifier] a set of matching
crockery used for serving a particular meal: a dinner service. 6.
[mass noun] (in tennis and other racket sports) the action or
right of serving to begin play ... 7. [mass noun] Law the formal
delivery of a document such as a writ or summons. verb [with
obj.] 1. perform routine maintenance or repair work on (a vehicle
or machine): ensure that gas appliances are serviced regularly.
Supply and maintain systems for public utilities and transport
and communications in (an area): the village is small and well
serviced. Perform a service or services for (someone): her life
is devoted to servicing others. Pay interest on (a debt):
taxpayers are paying $250 million just to service that debt. 2.
(of a male animal) mate with (a female animal) ... 

-ORIGIN Old English (denoting religious devotion or a form of
liturgy), from Old French servise or Latin servitium ‘slavery,’
from servus ‘slave.’ The early sense of the verb (mid 19th cent.)
was ‘be of service to, provide with a service.’

[400] The Encarta Webster’s Dictionary of the English Language,
2d ed., Bloomsbury Publishing Plc: 2004 (“Webster Dictionary”),
defines “service” as follows:

service n 1. WORK DONE FOR SOMEBODY ELSE work done by somebody
for somebody else as a job, duty, punishment or favor. After 25
years of service to the company, all I got was a watch. 2.
HELPFUL ACTION an action done to help somebody or as a favor to
somebody. Would you do me one small service? 3. WORK FOR
CUSTOMERS work done for the customers of a store, restaurant,
hotel or similar establishment, often with regard to whether it
pleases them or not. The service in this restaurant is lousy. You
can never get any service in this place! 4. HOUSE SERVANT’S WORK
work done as a servant in a private house. 5. USE the use that
can be had from a machine or piece of equipment. Treat it
carefully, and it’ll give you years of good service. 6. USE OR
OPERATION current use or operation. The number you have dialed is
not in service at this time. 7. MECH ENG MAINTENANCE OF MACHINERY
the act of cleaning, checking, adjusting, or making minor repairs
to a piece of machinery, especially in a motor vehicle, to make
sure that it works properly. Take the car in for a service. 8.
MEETING OF PUBLIC NEED a system or organization that provides
people with something that they need, e.g. public transportation
or a utility. The tourist information service. A bus service. 9.
GOVERNMENT AGENCY a body of people who carry out work for the
public benefit within an organization run by local or national
government. The diplomatic service. The police service. 10. ONE
OF ARMED FORCES the armed forces of a country, or one of its
branches. Which branch of the service is your daughter in? 11.
FORM OF PUBLIC WORSHIP ... 12. RELIGIOUS RITUAL ... 13. SET OF
DISHES ... 14. RACKET GAMES same as SERVE ... 15. SERVING OF
LEGAL DOCUMENT TO SOMEBODY ... 16. NAUT. MATERIAL USED TO BIND
ROPE ... 

[401] Both dictionary definitions refer to “a system supplying a
public need” or the “meeting of public need,” the latter
definition specifically including “the police service.” Moreover,
the respondent’s name is “Regional Municipality of Peel – Police
Services Board.”

[402] Further, the jurisprudence on the term “services” within
the meaning of the Code has been very wide-reaching, and
includes, but is certainly not limited to, the following recent
examples: membership in an association (see: Huang v. 1233065
Ontario Inc. (No. 2) (2006), CHRR Doc. 06-041 [reported 55
C.H.R.R. D/216]); education (see: Trinity Western University v.
British Columbia College of Teachers, supra); private club
membership (see: Barclay v. Royal Canadian Legion, Branch 12
(1997), 31 C.H.R.R. D/486) (Ont. Bd.Inq.); organized sports (see:
Blainey v. Ontario Hockey Assn. (1986), 7 C.H.R.R. D/3529 (Ont.
C.A.); a fishing derby (see: Baptiste v. Napanee and Dist. Rod &
Gun Club (1993), 19 C.H.R.R. D/246 (Ont. Bd.Inq.); and the
decision to hold a coroner’s inquest and the inquest itself (see:
Braithwaite, supra).

[403] The Tribunal adopts the reasoning of Mr. Justice Cory in
Braithwaite, supra, at §22, where he held that:

As I stated earlier, “service” must mean something which is of
benefit that is provided by one person to another or to the
public. The Human Rights Code of Ontario is certainly remedial in
its purpose and must therefore have the least restrictive
definition applied to it ... 

Transsexuality Falls Within the Meaning of Sex

[404] The enumerated ground of “sex” is also not defined within
the Code, thus the Tribunal has looked to other sources and
dictionary definitions for guidance.

[405] The Oxford Dictionary, supra, defines “sex” as follows:

sex. noun 1. [mass noun] (chiefly with reference to people)
sexual activity, including specifically sexual intercourse ... 2.
either of the two main categories (male and female) into which
humans and most other living things are divided on the basis of
their reproductive functions: adults of both sexes. [mass noun]
the fact of belonging to one of these categories: direct
discrimination involves treating someone less favourably on the
ground of their sex ... [emphasis of Oxford Dictionary]

[406] The Webster Dictionary, supra, defines “sex” as follows:

n.1. same as sexual intercourse 2. SEXUAL BEHAVIOR sexual
activity, or behavior leading to it 3. MALE OR FEMALE GENDER
either of the two reproductive categories, male or female, of
animals and plants 4. ANAT same as genitals (literary) 5. BIOL
REPRODUCTIVE CHARACTERISTICS the set of characteristics that
determine whether the reproductive role of an animal or plant is
male or female. adj OF SEX relating to sexual matters or to the
sexes. vt (sexed, sex-ing, sex-es) DETERMINE SEX OF SOMETHING to
determine the sex of an animal or plant [14C. Directly or via
French, Latin sexus]

[407] While both definitions of sex focus primarily on sexual
intercourse, they include much broader references to reproductive
characteristics, behaviour, gender, and even to direct
discrimination. Thus, the dictionary definitions of sex mirror
the meanings of the term often applied to it as a statutory
ground of the Code.

[408] While the Code does not offer a definition of
“transsexual,” the Oxford Dictionary does:

transsexual (also transsexual). noun a person born with the
physical characteristics of one sex who emotionally and
psychologically feels that they belong to the opposite sex.

[409] The Webster Dictionary also defines it:

Transsexual n 1. somebody who has undergone treatment to change
his or her anatomical sex. 2. somebody who identifies himself or
herself as a member of the opposite sex.

[410] The Tribunal finds that based on both dictionary
definitions of “transsexual,” that this term clearly falls within
the lexical meaning of its base word, “sex.”

[411] The Commission’s Policy on Discrimination and Harassment
because of Gender Identity, issued on March 30, 2000,
www.ohrc.on.ca/english/publications/gender-identity-policy.shtml,
provides the following guidance under the subheading,
Introduction::

Gender identity is not an enumerated ground in the Code. However,
the existing legal structure in the Code can support a
progressive understanding of the ground of “sex” to include
“gender identity” and protect individuals who are subject to
discrimination or harassment because of gender identity ... 

The right to equal treatment without discrimination or harassment
because of sex extends to all persons. The Commission has taken
the policy position that this protection extends to persons
because of gender identity.

[412] As Mr. Justice McIntyre wrote for the Supreme Court of
Canada in Ontario (Human Rights Commission) and O’Malley v.
Simpsons-Sears Ltd., supra, at §12 [C.H.R.R. §24766], after
reciting in full and considering the significance of the Code’s
Preamble:

... There we find enunciated the broad policy of the Code and it
is the policy which should have effect. It is not, in my view, a
sound approach to say that according to established rules of
construction no broader meaning can be given to the Code than the
narrowest interpretation of the words employed. The accepted
rules of construction are flexible enough to enable the Court to
recognize in the construction of a human rights code the special
nature and purpose of the enactment (see Lamer J. in Insurance
Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R.
145, at pp.157–58 [3 C.H.R.R. D/1163]), and give to it an
interpretation which will advance its broad purposes. Legislation
of this type is of a special nature, not quite constitutional but
certainly more than ordinary – and it is for the courts to seek
out its purpose and give it effect ... 

[413] As the late Mr. Justice Sopinka noted in Zurich Insurance
Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at
339 [16 C.H.R.R. D/255 at §18], human rights law is the “last
protection of the most vulnerable members of society.”
Transsexuals certainly fall within that category and so applying
a substantive interpretation to the definition of “sex,” accords
with the Supreme Court of Canada’s direction that the Code .” . .
be interpreted in a liberal and purposive manner, with a view
towards broadly protecting the human rights of those to whom it
applies,” as per Tranchemontagne, infra, at §33 and B. v. Ontario
(Human Rights Commission), [2002] 3 S.C.R. 403 [44 C.H.R.R. D/1].

[414] The Tribunal also adopts the reasoning of the Quebec Human
Rights Tribunal in Québec (Commission des droits de la personne
et des droits de la jeunesse) v. Maison des jeunes-A-Ma-Baie
inc., [1998] J.T.D.P.Q. No. 31 (QL) [33 C.H.R.R. D/263], which,
after considering the substantive interpretations of sex provided
by the Supreme Court of Canada in Janzen v. Platy Enterprises
Ltd., [1989] 1 S.C.R. 1252 [10 C.H.R.R. D/6205], Brooks v. Canada
Safeway Ltd., [1989] 1 S.C.R. 1219 [10 C.H.R.R. D/6183], and
Miron v. Trudel, [1995] 2 S.C.R. 418, it found at §110 [and] 115:

Whether under the aegis of section 15(1) of the Canadian Charter
or of section 10 of the Quebec Charter of Human Rights and
Freedoms, the term “sex” has much more than a taxonomic value,
and exposes the great discrepancies of the binary model in terms
of a classification that managed to pass for the archetype of the
model itself.

Referring, for the purpose of analogy, once again to the question
posed by Dickson C.J. in Brooks, in respect of pregnancy, we can
affirm that it is not clear how discrimination based on
transsexualism or on the process of transsexualism could
ultimately be anything other than sex-based. [Footnotes omitted.]

[415] As counsel for the respondent noted, the human rights
jurisprudence that recognizes transsexuality as falling within
the meaning of the enumerated ground of sex is also relatively
recent, and the Tribunal finds that those decisions were rendered
either concurrent with or postdated the timing of the
strip-searches of Ms. Forrester. See: Nixon, supra; Sheridan v.
Sanctuary Investments Ltd. (No. 3), supra; Waters v. British
Columbia (Ministry of Health Services) (2003), 46 C.H.R.R. D/139
(B.C.H.R.T.); Montreuil v. National Bank of Canada (No. 2),
[2004] C.H.R.D. 4 (QL) [48 C.H.R.R. D/436]; Ferris v. O.T.E.U.,
Local 15 (1999), 36 C.H.R.R. D/329 (B.C.H.R.T.); Canada (Attorney
General) v. Canada (Human Rights Commission) and Kavanagh, supra;
Mamela v. Vancouver Lesbian Connection (1999), 36 C.H.R.R. D/318;
and Québec (Commission des droits de la personne et droits de la
jeunesse) v. Maison des jeunes-A-Ma-Baie inc., supra.

Discrimination on the Basis of Sex within the Provision of
Services

[416] The Tribunal accepts the uncontraverted evidence that Ms.
Forrester was strip-searched by male officers, except for one
occasion, when she was provided with a split search conducted by
both male and female officers. As admitted by the respondent, the
Tribunal finds that these incidents constitute unintentional
discrimination on the basis of sex within the provision of
services offered by the respondent.

[417] The Tribunal also fully accepts the assertion of the
respondents that at the time of these strip-searches at issue,
the law provided it with little, if any guidance, as how best to
proceed.

REMEDY

The Tribunal’s Discretion to order Public Interest Remedies

[418] The request of the respondent that the Tribunal decline to
make any public interest remedies in favour of their voluntary,
revised directive, filed with their closing submissions, was
contested by both the Commission and Ms. Forrester. Although the
Tribunal accepts that the respondent made this submission in good
faith, the Tribunal declines this request.

[419] Section 41(1) of the Code permits the Tribunal to make
orders, on a discretionary basis, as follows:

Orders of Tribunals

41(1) Where the Tribunal, after a hearing, finds that a right of
the complainant under Part I has been infringed and that the
infringement is a contravention of section 9 by a party to the
proceeding, the Tribunal may, by order,

(a) direct the party to do anything that, in the opinion of the
Tribunal, the party ought to do to achieve compliance with this
Act, both in respect of the complaint and in respect of future
practices; and

(b) direct the party to make restitution, including monetary
compensation, for loss arising out of the infringement, and where
the infringement has been engaged in wilfully or recklessly,
monetary compensation may include an award, not exceeding
$10,000, for mental anguish.

[420] While the power to make an order with respect to “future
practices” is discretionary, this discretion ought to be
exercised in this instance as a practical matter, since the
parties have not agreed as to the specifics of the substance of
the proposed new directive. The lack of agreement on the
specifics is particularly notable with respect to the “opt out”
request made by the respondent, and endorsed by the Friend, a
suggestion that Commission counsel characterized as “a dangerous
precedent” and that Ms. Forrester also opposed.

[421] The Tribunal has held an extensive hearing, at the end of
which the respondent admitted that it unintentionally violated
Ms. Forrester’s right to be free from discrimination, thus
triggering the Tribunal’s discretionary power under §41(1) of the
Code.

[422] Since there is no agreement on the specifics of the future
practices, the Tribunal has concluded that if it adopted the
respondent’s suggestion and declined to make an order, this would
amount to a failure on the part of the Tribunal to dispose of
public interest issues that remain in serious dispute, which
would be a serious defect.

[423] Since this decision is an original order, the Tribunal
would be remiss to issue it knowing that it contained a defect
that could result in several negative outcomes. First, as a
matter of fairness, it would fail to resolve matters in dispute,
which is the Tribunal’s mandate as an administrative law agency.
Secondly, it would not be automatically enforceable by the
Tribunal (although some inherent jurisdiction might remain),
since the terms of the directive would themselves remain
voluntary, whereas orders of the Tribunal are clearly enforceable
and the Tribunal retains jurisdiction over the implementation of
them. See: Ontario (Ministry of Correctional Services) v. Ontario
(Human Rights Comm.) (No. 1) (2001), 39 C.H.R.R. D/308 (Ont.
Sup.Ct.). Thirdly, because the original order would contain a
potentially serious defect, it could trigger the exceptions to
the functus officio principle based on rules of natural justice
or the jurisdiction of the Tribunal, thus potentially requiring
review to determine the validity of the original decision. See:
Macauley and Sprague in Practice and Procedure before
Administrative Tribunals, Carswell (looseleaf), at 27A.4(c)(vi)
“Failure to Dispose of Issue” – 27A.4(c)(vii) “Who Determines
Integrity of Original Order.”

[424] These are all potentially very regrettable outcomes as a
matter of administrative law and practice, with little upside,
except for the convenience of the respondent, which could then
easily amend its directive as it felt inclined to do so.

[425] Although the respondent is now prepared to give transsexual
and intersex detainees the choice of the sex of the officer who
performs the strip-search, or the choice of a split search,
rather than a mandatory split search, which the Tribunal
acknowledges is a major concession to make to the other parties
herein, there ought to be some certainty attached to the details
contained in this important promise, and the best way to achieve
that certainty is to include it in an order.

[426] The law is settled that an administrative agency’s
overriding concern is to protect the interests of the public over
the interests of the immediate parties. See: Macaulay and
Sprague, supra, at p. 8-7, and see: C.T.C. Dealer Holdings Ltd.
v. Ontario Securities Commission (1987), 59 O.R. (2d) 79
(Div.Ct.); leave to appeal to Ont. C.A. refused (1987), 35 B.L.R.
xx (note) (S.C.C.).

Sex of the Officer Performing the Strip-Search on a Transsexual
Detainee

[427] As submitted by Ms. Dinnert in her oral closing argument,
set out in §369, the respondent is willing to provide a
transsexual or intersex person with a choice.

[428] In the respondent’s closing submission, at tab A – Strip
Searching of Transsexual and Intersexed Persons, the respondent
sets out its proposed new directive to establish procedures for
conducting strip-searches on transsexual females, transsexual
males and intersexed persons. Under Part F, Right to Choice of
Process, the respondent is prepared to offer a transsexual or
intersex detainee the choice of three options:

(i) Male officer(s) only; or

(ii) Female officer(s) only; or

(iii) A split search.

[429] The respondent proposes to offer all three options will be
offered [sic] to a detainee who “has been satisfactorily
identified” as a transsexual or intersex male or female. The
respondent also proposes that the officer will explain the
process, take notes prior to conducting the search, including the
choice made by such a detainee, and notify the Officer-in-Charge
who will authorize the strip-search.

[430] The spirit of Part F of the proposed new directive is
acceptable to the Tribunal. However, Part F is predicated on Part
E – Gender Determination, which shall be discussed below.

Determination of the Status of a Transsexual Detainee

[431] The respondent proposes under Part E of its new directive
that an individual may self-identify as a transsexual or intersex
male or female. They add, under para. 1:

In most cases, it will likely be possible to recognize or accept
a transsexual on self-identification, particularly if doing so
will secure the detainee’s cooperation.

[432] The respondent adds that a cross-dresser is not a
transsexual or intersex person, and should be treated as a male
detainee. The expert evidence heard by the Tribunal supports that
contention, and neither the Commission nor Ms. Forrester were
opposed to this submission.

[433] However, there is serious contention between the parties
about the respondent’s request to test the self-identification of
the detainee when in doubt. Ms. Forrester finds it offensive, and
argues that detainees who claim religious practices or medical
conditions are not equally tested, although Ms. Dinnert refutes
that.

[434] Commission counsel similarly argues that it is problematic,
and that any doubt should fall in favour of the detainee, since
it is the detainee’s dignity that is at stake. Commission
counsel’s position is actually different from the testimony of
some of his expert witnesses. Ms. Cousens believes it is
reasonable to test the assertion when in doubt, but Dr. Toplack
and Dr. Steele were concerned about traumatizing a transsexual
detainee.

[435] On this point, the Tribunal agrees that Ms. Dinnert is
correct. From all the evidence heard, it is clear that officers
routinely ask follow-up questions once a detainee has
self-identified his or her religious or medical requirements, and
further, that the police also routinely ask questions initiating
such discussions. There is no compelling evidence before the
Tribunal that such practices are discriminatory.

[436] The respondent’s proposal in this regard is reproduced
below from §3 and 4 of Part E, verbatim:

3. If an officer has reason to doubt the detainee’s self
identification as a transsexual female, a transsexual male, or an
intersexed person:

(a) the officer shall make notes as to the reasons for that
doubt; and

(b) the officer may ask that individual a series of questions, as
follows, that should assist in removing doubt. While no one
question is determinative, answers to any or all of these
questions should assist the officer in determining the gender
identity of the detainee;

Note: The below-identified questions that are asked, and answers
to those questions asked, shall be recorded in the officer’s
notebook.

(i) What name appears on your identity documents?

(ii) Have you disclosed your identity to your friends and/or
family?

(iii) Have you sought or are you seeking medical or professional
guidance from a qualified professional? If so, can you give the
name(s) of these people and their professional designations?

(iv) What steps are you taking to live full-time in a manner
consistent with your gender identity? How can you demonstrate
that you are living full-time in your gender identity?

(v) What is your gender identity and what medical steps, if any,
have you taken to help your body match your gender identity?

4. In the circumstance where the officer continues to have reason
to doubt the detainee’s self identification, the officer shall
defer to the Officer-in-Charge of the Division for a final
determination.

[437] In Weatherall v. Canada (Attorney General), [1993] 2 S.C.R.
872, Mr. Justice La Forest, for the Supreme Court of Canada,
dismissed an appeal from the Federal Court of Appeal, concerning
frisk searches and surveillance of cells in male prisons by
female guards based on alleged infringements of ss. 7, 8 and 15
of the Canadian Charter of Rights and Freedoms.

[438] In Weatherall, supra, it found that male prisoners being
frisked or seen by female guards had no reasonable expectation of
privacy under these circumstances, as set out below (at §5–6):

Imprisonment necessarily entails surveillance, searching and
scrutiny. A prison cell is expected to be exposed and to require
observation. The frisk search, the count and the wind are all
practices necessary in a penitentiary for the security of the
institution, the public and indeed the prisoners themselves. A
substantially reduced level of privacy is present in this setting
and a prisoner thus cannot hold a reasonable expectation of
privacy with respect to these practices. This conclusion is
unaffected by the fact that the practices at times may be
conducted by female guards. There being no reasonable expectation
of privacy, §8 of the Charter is not called into play; nor is §7
implicated.

It is also doubtful that §15(1) is violated. In arguing that the
impugned practices result in discriminatory treatment of male
inmates, the appellant points to the fact that female
penitentiary inmates are not similarly subject to cross-gender
frisk searches and surveillance. The jurisprudence of this Court
is clear: equality does not necessarily connote identical
treatment and, in fact, different treatment may be called for in
certain cases to promote equality. Given the historical,
biological and sociological differences between men and women,
equality does not demand that practices which are forbidden where
male officers guard female inmates must also be banned where
female officers guard male inmates. The reality of the
relationship between the sexes is such that the historical trend
of violence perpetuated by men against women is not matched by a
comparable trend pursuant to which men are the victims and women
the aggressors. Biologically, a frisk search or surveillance of a
man’s chest area conducted by a female guard does not implicate
the same concerns as the same practice by a male guard in
relation to a female inmate. Moreover, women generally occupy a
disadvantaged position in society in relation to men. Viewed in
this light, it becomes clear that the effect of cross-gender
searching is different and more threatening for women than men.
The different treatment to which the appellant objects thus may
not be discrimination at all.

[439] Similarly, in Conway v. Attorney General of Canada (1990),
58 C.C.C. (3d) 424; leave to S.C.C. granted 69 C C.C. (3d) vi;
aff’d 83 C.C.C. (3d) 1, the Federal Court of Appeal upheld the
practice, as part of an affirmative action program, of female
guards performing routine frisk or pat-down searches of male
inmates as they moved through various parts of the penitentiary
and routine surveillance procedures, including unannounced
inspections.

[440] It is clear that most detainees must expect a substantially
reduced level of privacy, since prison cells are exposed and
require observation. The exception being provided for transsexual
detainees in this case to ordinary police practices is made in
recognition of the determination made by all the parties and by
this Tribunal that in order to preserve their dignity, their
transition must be accepted.

[441] The Tribunal accepts the detailed evidence given by
Supervisor Dale of the weapons that the police regularly find
hidden on detainees’ bodies, some of which he presented as
evidence in this hearing, included surprisingly large knives,
which the Tribunal finds are potentially lethal weapons.
Similarly, Ms. Cousens also expressed concern for officer safety
and recommended questions for use by the police when faced with a
detainee whom they believe may be falsely identifying as a
transsexual.

[442] The Tribunal is satisfied that with the provision of
special training and a progressive police directive, a reasonable
balance can be achieved that respects the dignity of transsexual
detainees while maintaining public safety.

[443] The Tribunal generally accepts the spirit of Part E of the
proposed new directive, with a few caveats.

[444] First, where it states that an “officer has reason to doubt
the detainee’s self identification,” it finds that this must be
changed to “serious reason” throughout the directive.

[445] Secondly, where a detainee self-identifies as a
transsexual, and there are any objective criteria to believe that
this is true, such as Ms. Forrester, who was wearing a bra,
carrying a purse, and wearing earrings, the detainee must be
accepted at his or her word. Dr. Toplack also suggested the
development of breast tissue as an objective criterion, which the
Tribunal also accepts. Similarly, any identification or a
doctor’s letter identifying the detainee as a transsexual should
be accepted, provided that the police do not believe it is a
forgery.

[446] Thirdly, the officer asking the questions to verify the
detainee’s status must do so in private, but may have a second
officer of the same sex as the first officer present for both the
questions and for the strip-search if the respondent wishes; must
document all questions and answers; and then, as proposed in the
balance of the respondent’s new directive, must have approval
from the Officer-in-Charge, who is responsible for this decision,
before proceeding with the strip-search.

[447] Fourthly, while the strip-search of a transsexual detainee
must be conducted in a private area where no one other than the
officers involved can observe the strip-search, officers of
either the same or opposite sex from the transsexual detainee may
stand by, out of vision, in the event of physical resistance or
confrontation, just as they would for any other detainee, and in
the same number.

Exception for Emergency Situations Where Detainee Becomes a
Security Risk

[448] Finally, there may be emergency situations beyond the
control of any police officer that necessitate measures not
contemplated in this decision, which Ms. Dinnert characterized in
her written brief as, “the need for assistance, which may include
officers of the opposite gender identity, to be available and to
be used in the event of unreasonable resistance.”

[449] As described by Ms. Cousens, and by Constable Perkins in
her prior experience working as a corrections officer at
Maplehurst, any detainee may become a security risk. If a
transsexual detainee becomes a security risk, then the officers
may take whatever steps necessary to protect themselves and the
other detainees, and to maintain order, just as they would for
any other detainee. The Tribunal holds that whichever officers
are present at such a time, including those officers who are
standing by, must be permitted to deal with an emergency
situation, regardless of their sex or the sex of the detainee.
Obviously, an emergency situation that would otherwise violate
this decision must also be documented afterwards, since it is the
exception and not the rule.

Can an officer “opt out” of the strip-search of a transsexual if
another officer can substitute?

[450] In Ms. Dinnert’s written brief, she asked for “the right of
police officers who may not wish to conduct such searches to be
able to do so in appropriate circumstances.”

[451] The Friend also made submissions on this issue, in its
final brief, as follows:

B. Any search policy must respect the valid interests of
individual Members

2. As became clear from the testimony at the hearing, some
Members express no resistance to having to strip-search a
detainee with genitalia of the opposite sex. However, other
Members are extremely uncomfortable with this proposition, which
would represent a significant change to their existing duties,
and was not part of the reasonable expectations of them when they
accepted their positions with the Police Service and assumed
those duties. Any new policy must recognize that the dignity and
interests of our Members be respected.

3. Individual Members must be able to decline to search a
detainee without fear of disciplinary repercussions. This is a
crucial protection for Members who may be extremely uncomfortable
with searching detainees who have genitalia of the opposite sex.
In the view of the Association, this protection does not
interfere with the guarantee that a transsexual or intersexed
detainee will be able to choose whether to be searched by a male
or female officer.

4. An agreeable policy would provide that a female officer may
decline to search a transsexual female or intersexed female
detainee, only where there is another female officer reasonably
available and willing to conduct the search. A parallel
provision, with respect to male officers who wish to decline to
search transsexual males or intersexed males is required. Members
who, in the appropriate circumstances, decline to conduct a
search, shall not be disciplined.

5. Where another Member is reasonably available and willing to
conduct the search, there is nothing to be gained by forcing the
hand of individual Members who are legitimately uncomfortable
with having to confront and search genitalia of the opposite sex.
They should not be required to do so if there is a reasonable
alternative.

[452] Both Ms. Forrester and the Commission strongly opposed this
request.

[453] In Ms. Forrester’s written brief, she addressed the
Friend’s concern, as follows:

Their next concern speaks about the interests of their members. I
believe that when someone takes on a professional position they
do so with expectations that they are as such, going to be
professional. Just as I am sure that none of their members enjoy
attending a scene where a rape may have taken place, or a scene
where a person may be drunk, this should be considered along
those line. [sic] A part of their job.

[454] The Commission’s written brief states as follows:

64. The Association’s proposal, while attractive on its face,
would set a dangerous precedent if it simply allowed an
individual to opt out of their duties without further inquiry.
For example, a city clerk cannot refuse to serve a South Asian
customer because he is extremely uncomfortable with individuals
from India or Pakistan, even if there are other clerks willing
and able to serve this customer. The Supreme Court of Canada has
stated that the “freedom to hold beliefs is broader than the
freedom to act on them.”

Trinity Western University v. British Columbia College of
Teachers, [2001] 1 SCR 772 at 814 [39 C.H.R.R. D/357 at §36].

65. For the Association’s position with respect to the ability to
“opt out” to be correct, an officer’s refusal to perform a search
must be linked to a protected ground under the Code or Charter.

66. For example, a female officer’s personal discomfort or
distaste toward transsexualism is not enough to secure Code
protection, but there may be situations in which an officer’s
request to “opt out” amounts to a valid request for accommodation
under the Code. One could, for instance, imagine a situation in
which a female officer has herself been the victim of male sexual
violence and who states that she would experience trauma as a
result of contact with male genitalia. Under such circumstances,
the officer may indeed be entitled to successfully request opting
out of strip-searching a pre-operative transsexual woman where
another female officer is reasonably available.

67. It should be emphasized, however, that where an officer is
permitted to opt out of conducting a strip-search, great care
must be taken to ensure a seamless substitution of one officer
for another. The transsexual detainee must not be made to
experience any kind of inconvenience or injury to dignity.

[455] The Tribunal has considered this issue very carefully and
from various perspectives. Situations of competing rights and
interests are often problematic.

[456] Certainly, by way of analogy, both §24(1)(c) of the Code
and jurisprudence allow for the rights of patients in the
provision of personal intimate care to trump employment equity,
so that the nurses and health care workers who provide such care
as their “primary duty” may be of the same sex as the patients,
even if that flies in the face of a prima facie case of
discrimination in the workplace based on sex, including hiring.
See: Reynolds v. British Columbia Mental Health Society, [1992]
B.C.C.H.R.D. No. 2 (QL) [16 C.H.R.R. D/499], and McKale v. Lamont
Auxiliary Hospital and Nursing Home (District No. 23) (1987), 37
D.L.R. (4th) 47 [8 C.H.R.R. D/4038] (Alta. Q.B.).

[457] However, the focus is on the right of the patient, or in
this case the right of the detainee, which trumps the right of
the nurse or care worker to equality in employment where it is
their “primary duty” to provide such intimate care. These
situations of competing rights are of much greater gravity to
nurses and care workers who may be denied employment or better
shifts, than some of the police officers who, as Detective
Sergeant Rocha testified, feel uncomfortable and believe that
they are neither showing nor receiving respect in performing a
strip-search of only a few minutes in duration.

[458] There is an implicit distinction to be drawn between
situations of intimate care, where the patient chooses his or her
family doctor, and thus voluntarily enters into that service
relationship, knowing the sex of the doctor, versus situations
where the patient is in a hospital or care facility and unable to
choose his doctor, nurse or care worker. In the latter scenario,
the Code anticipates that the right of the patient ought to
prevail over the rights of workers.

[459] With respect to the Friend’s argument that “nothing is to
be gained by forcing the hand of individual Members,” where there
“is a reasonable alternative,” the Tribunal finds that although
this seems somewhat compelling, and while it certainly found the
evidence of Detective Sergeant Rocha and Staff Sergeant Watson to
be highly credible, it nevertheless violates §9 of the Code,
which states:

Infringement prohibited

9. No person shall infringe or do, directly or indirectly,
anything that infringes a right under this Part. [Emphasis
added.]

[460] In Baptiste v. Napanee and Dist. Rod & Gun Club, supra, §9
was found to prohibit unintentional adverse effect
discrimination, where a club inadvertently discriminated against
a Native when it denied him third prize in a fishing derby,
because he did not have a fishing licence. As a member of a
Mohawk Band, he was not required to have a fishing licence where
he caught the prize fish. Although the requirement was neutral on
its face, it discriminated against him indirectly by having the
effect of excluding him from the competition or requiring him to
buy a licence which he did not need.

[461] Similarly, in Payne v. Otsuka Pharmaceutical Co. (No. 3)
(2002), 44 C.H.R.R. D/203 (Ont. Bd.Inq.), (then) Chair Garfield
was faced with an unusual fact situation. After the primary
discriminatory act had occurred at a conference, the conference
organizers, who were third parties to the discrimination,
assisted the discriminator by finding him other candidates to
interview for his booth, since he had rejected the complainant
because she was Black. It was held that there is a duty under the
Code not to condone or further discrimination, partly based on
the wording of §9, and by analogy to other sections of the Code,
such as §26, which anticipate third party breach and potential
condonation, and allow for the cancellation of government
contracts in such circumstances. Further, it was held that this
duty falls on a spectrum, see: Payne, supra, at §61–64.

[462] In particular, Payne, supra, stands for the establishment
of a “chain of discrimination,” as set out in §63:

The nature of when a third party or collateral person would be
drawn into the chain of discrimination is fact specific. However,
general principles can be determined. The key is the control or
power that the collateral or indirect respondent had over the
complainant and the principal respondent. The greater the control
or power over the situation and the parties, the greater the
legal obligation not to condone or further the discriminatory
action. The power or control is important because it implies an
ability to correct the situation or do something to ameliorate
the conditions. Accordingly, on one end of the spectrum of
responsibility, an employer has a legal duty to its employees,
agents and even to its customers and clients. On the other end of
the spectrum, a mere bystander would have no duty to another
stranger. A customer generally would have no duty to another
customer of its supplier.

[463] To allow for the respondent to include an “opt out” in its
new directive for some officers, would be to sanction a “chain of
discrimination,” namely indirect discrimination, on the
transsexuality community by permitting an “opt out” of an
involuntary service performed on them, where no equivalent “opt
out” is provided when the service is performed on anyone else,
yet alone any other distinct and insular minority, which has
suffered from historical disadvantage.

[464] Moreover, the rationale behind the “opt out” request is not
proportional. While the “opt out,” if allowed, would cause
indirect discrimination to all transsexual detainees
strip-searched by the respondent, of the female officers who
testified, it is fair to say they were evenly divided as to
whether or not they would feel discomfort performing such a
search. Constable Perkins, for example, said, “I have no problem
with it. It’s just a body ... “ and Constable Dawson echoed those
remarks, in contrast with Detective Sergeant Rocha and Staff
Sergeant Watson.

[465] The rationale behind the “opt out” request is also not
rationally connected to the position. It is clear from the
evidence heard that police officers deal with members of the
public under a wide range of scenarios, which can involve nudity,
danger and violence. While the Tribunal has the greatest of
respect for police officers, it is difficult to grasp how
performing strip-searches on transsexuals is significantly
different from strip-searching other detainees or from any of the
other duties they perform.

[466] The Code itself is a quasi-constitutional law of
fundamental importance that “must be recognized as being the law
of the people,” see: Tranchemontagne v. Ontario (Director,
Disability Support Program), 2006 SCC 14 [reported 56 C.H.R.R.
D/1] at §33. It calls for meaningful remedial measures to redress
injustice. The Tribunal should be reluctant to provide an “opt
out” if that perpetuates the discrimination, either directly or
indirectly. As noted by Chair Gottheil in Chornyj v. Trus Joist,
2006 HRTO 10 [reported 56 C.H.R.R. D/96] at §24:

... Human rights tribunals and the Courts have long recognized
the special “quasi-constitutional” status of human rights
legislation. The Code must be interpreted and applied in a large,
liberal and purposive manner. The approach to human rights
adjudication should never be overly legalistic and technical, but
rather should enhance accessibility and ensure that
determinations are made on the true merits of the case. As the
Court said in Action Travail des Femmes v. Canadian National
Railway Co., [1987] 1 S.C.R. 1114 at 1134 [8 C.H.R.R. D/4210 at
§33238], “[w]e should not search for ways and means to minimize
those rights and to enfeeble their proper impact.” (See also:
Ontario Human Rights Commission et al. and Simpsons-Sears Ltd.
(“O’Malley”) [1985] 2 S.C.R. 536 at 546–547 [7 C.H.R.R. D/3102 at
§24766]]; Toneguzzo v. Kimberly Clark, 2005 HRTO 45 [CHRR Doc.
05-643].)

[467] However, Commission counsel’s argument that an officer who
has significant Code or Charter interests of his or her own to
protect, well beyond discomfort, could fall within a narrow
exception, is well-taken. The respondent is hereby permitted some
limited discretion, in such highly unusual circumstances, to
allow for a substitution, if the reason why is documented and
authorized by the Officer-in-Charge.

Education and Training

[468] It was clear from the testimony of virtually all of the
officers involved that they require education and training on
transsexuality, and that they have not received any to date in
their diversity training. This conclusion was confirmed by the
testimony of Constable Edwards, who works in the Race and Ethnic
Relations Bureau, and who reviewed all of their education and
training.

[469] The Commission requested an order that the respondent be
required to provide all of its officers with a mandatory workshop
on the implementation of any revised policy. Ms. Forrester also
called for full training of officers with the support of the
transsexual and intersex communities.

[470] The respondent submitted that it would be unreasonable to
require it to undertake a training workshop for a force of this
size, and urged the Tribunal instead to permit an explanation to
be given at parades. The respondent had no precise position on
training videos when asked, but did ask for some time to produce
them.

[471] The Tribunal accepts the evidence of Constable Edwards, as
set out in §321, that the logistics of face-to-face training for
a police force of 1,700 uniformed officers would necessitate
twenty to twenty-five officers holding seventy-five training
sessions, and that to train all staff would require almost 100
training sessions.

[472] The Tribunal has determined that sporadic training of the
respondent’s force would be inadequate, since it was clear from
the evidence of all the officers that transsexuality has not been
a topic covered elsewhere in their diversity training, see:
Professor Hubbard’s decision in McKinnon v. Ontario (Ministry of
Correctional Services) (No. 3) (1998), 32 C.H.R.R. D/1 at 348
(Ont. Bd.Inq.).

[473] The entire police force requires training on
transsexuality, and that the most practical way of achieving that
objective is to require the respondent to produce a training
video on transsexuality for its force, in conjunction with
various experts (Ms. Cousens and Ms. Durand would be ideal if
they are willing) and with input from members of the trans
community, including Ms. Forrester. This training video must be
approved by the Commission prior to implementation. Although the
suggestion that training on intersex persons also accompany the
training on transsexuality is valuable, that issue is not before
the Tribunal, and so no order is being made with respect to it.

[474] The training video must be shown to existing officers
during parades, and be accompanied by an amended directive, and a
brief explanation in a Hot Sheet. Once officers have received
their training, they must sign-off on it with their Supervisors.
The Tribunal is prepared to give the respondent six months from
the date of this order to implement these training directions.
See: McKinnon, supra, at §348 and 353.

[475] The Tribunal has no jurisdiction over the intersex
community and other non-parties to this matter, but thanks the
respondent for its willingness to include the intersex community
in its new directive. The Tribunal would be grateful if the
Friend would consider adopting the training video elsewhere. It
also suggests the delivery of a lecture by an expert on
transsexuality at the Ontario Police College for all new recruits
as part of their overall diversity training, in order to foster a
better understanding early in police officers’ careers.

ORDER

[476] Since transsexuality falls within the enumerated ground of
sex, and since the strip-searches which took place constitute
unintentional discrimination on the basis of sex within the
provision of services offered by the respondent, the respondent
is hereby ordered and directed to take the following actions to
achieve compliance with the Code in respect of its current and
future conduct and practices:

1. Revise its directive concerning the strip-searches of
transsexual detainees, inter alia, as follows:

(i) A transsexual detainee must be offered one of three options
for a strip-search, namely:

(a) male officer(s) only or

(b) female officer(s) only or

(c) a split search.

(ii) Prior to the strip-search being conducted, an officer must
explain the process, take notes prior to conducting the search
including the choice made by a transsexual detainee, and notify
his or her Officer-in-Charge who will authorize the strip-search.

(iii) Where an officer has serious reason to doubt a detainee’s
self-identification as a transsexual, absent any objective
criteria that would cause the officer to believe that this is
true, the officer may ask the detainee the questions set out
below, in private, to verify the detainee’s status. The officer
may have a second officer present for both the questions and for
the strip-search if the respondent so chooses. The officer must
have approval from his or her Officer-in-Charge before proceeding
to conduct the strip-search. Other officers of either the same
sex or the opposite sex from the transsexual detainee may stand
by, out of vision, in the event of physical resistance or
confrontation, just as they would for any other detainee, and in
the same number.

The permitted questions are as follows:

(a) What name appears on your identity documents?

(b) What is your gender identity?

(c) Have you disclosed your gender identity to your friends
and/or family?

(d) What steps are you taking to live full-time in a manner
consistent with your gender identity? How can you demonstrate
that you are living full-time in your gender identity?

(e) Have you sought or are you seeking medical or professional
guidance from a qualified professional? If so, can you give the
names(s) of these people and their professional designations?

(f) What medical steps, if any, have you taken to help your body
match your gender identity?

(iv) Where the officer continues to have serious reason to doubt
the detainee’s self-identification, the officer shall defer to
the Officer-in-Charge of the Division for a final determination.

(v) If the detainee becomes a security risk, and the officer is
apprehensive of an emergency, then whichever officers are present
at the time, including those officers who are standing by, are
permitted to deal with this on an exceptional basis, and may take
whatever steps necessary to protect themselves and the other
detainees, and to maintain order, just as they would for any
other detainee. Such an exceptional circumstance must be
documented by the Officer-in-Charge of the Division.

(vi) Officers are not permitted to “opt out” of the strip-search
of a transsexual, and must perform their duties. A limited
discretion is hereby permitted for the Officer-in-Charge to
relieve an officer of his or her duties, if the officer has
significant Code or Charter interests of his or her own to
protect, and if the substitution and the reason for it is
authorized and documented by the Officer-in-Charge; and

(vii) The new directive may contain other provisions not included
in this order, provided that they do not violate these terms.

2.  Produce a training video on transsexuality for all the
members of its force, in conjunction with various experts, and
with input from the transsexual community, including Ms.
Forrester if she is willing to participate, to be approved by the
Commission prior to implementation.

3. This training video shall be shown to existing officers during
parades, and be accompanied by the amended directive, which
explains the change in policy, along with a brief explanation set
out in a Hot Sheet (“implementation”).

4. Once officers have received their training, they must sign off
on its completion with their Supervisors.

5. The revised directive, training video and implementation shall
occur within six months of the date of this order.

6. The Tribunal will remain seized of this matter for a period of
twelve months from the date of this order, so that it may deal
with any implementation issues that arise.

NOTES

1 The Clarence Street Court (Provincial Division) was replaced in
2000 with the A. Grenville and William Davis Courthouse.

^^

Indexed as: MacDonald v. Downtown Health Club for Women (Nº 5) 
Cited: (2009), CHRR Doc. 09-2194, 2009 HRTO 1647

PROCEDURE/Decision affirming the withdrawal of an application.
The respondents’ requested costs to compensate them for the loss
of dignity and stress associated with the accusation of
discrimination and their time and money lost in preparing a
defence. The Tribunal ruled that it does not have authority to
award costs. In the alternative, the respondents requested that
the Tribunal exercise its discretion to prevent the applicant’s
abuse of process, caused by the unexplained withdrawal of the
application, by making a monetary award. The Tribunal finds that
this is just another way to frame a request for costs. Further,
the Tribunal does not find that the applicant abused the Tribunal
process in any way. Oct. 9, 2009.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

Date: 20091009 
File No.: T-0499-08 
Neutral Citation: 2009 HRTO 1647

BETWEEN:

Lisa MacDonald

Applicant

AND:

Downtown Health Club for Women, Fulton Fitness and John Fulton

Respondents

Adjudicator:

Kaye Joachim

Counsel for the Applicant:

Bradley J. Troup

Counsel for the Respondents:

Andrew J. Roman, Gita Anand and Erik Marshall

DECISION

1.This is an Application filed under §53(3) of the Human Rights
Code, R.S.O. 1990, c. H-19, as amended (the “Code”).

2.The purpose of this Decision is to address the applicant’s
request to withdraw the Application and the respondents request
for legal costs or other remedial relief.

3.The applicant self-identifies as a transgendered person. She
alleged that she was discriminated against in the provision of
services on the basis of sex contrary to sections 1 and 9 of the
Code by the respondents with respect to her request for admission
to a women’s only fitness facility in the summer of 2006. The
respondents denied that they have breached the applicant’s rights
under the Code.

4.The respondents raised various preliminary objections and the
Tribunal sought written submissions on some of them. The Tribunal
scheduled a hearing to commence on November 30, 2009 and the
parties filed their statements of facts and remedies and made
disclosure of arguably relevant documents. Shortly after my
Interim Decision 2009 HRTO 1308 (CanLII) [CHRR Doc. 09-1784]
ordering the applicant to disclose some medical documents, the
applicant sought to withdraw her Application without explanation
on August 27, 2009.

5.The respondents sought their costs or other relief to
compensate the respondents for the loss of dignity and stress
associated with the accusation of discrimination and their time
and money lost in preparing a defence. With respect to the injury
to dignity, the respondents assert that they have been
stigmatized as having discriminated against the applicant and
have been deprived of the opportunity to have the discrimination
allegations dismissed.

6.The Tribunal has no inherent jurisdiction to award costs. It
can only do so if such jurisdiction is expressly given to it
either by the Code or some other legislation: Ontario (Liquor
Control Board) v. Ontario (Human Rights Commission), [1988] O.J.
No. 167 [9 C.H.R.R. D/4868] (Div. Ct.). The Code is silent on the
power to award costs. Accordingly, I must determine whether the
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended
(“SPPA”) gives the Tribunal the power to award costs in the
circumstances.

7.The SPPA provides that a Tribunal that may order costs if it
has made rules setting out the circumstances in which costs may
be awarded:

17.1(1)

Subject to subsection (2), a tribunal may, in the circumstances
set out in a rule made under section 25.1, order a party to pay
all or part of another party’s costs in a proceeding.

(2)

A tribunal shall not make an order to pay costs under this
section unless,


(a)

the conduct or course of conduct of a party has been
unreasonable, frivolous or vexatious or a party has acted in bad
faith; and

(b)

The tribunal has made rules under section 25.1 with respect to
the ordering of costs which include the circumstances in which
costs may be ordered and the amount of the costs or the manner in
which the amount of the costs is to be determined.

(3)

The amount of the costs ordered under this section shall be
determined in accordance with the rules made under section 25.1.

(4)

Despite section 32, nothing in this section shall prevent a
tribunal from ordering a party to pay all or part of another
party’s costs in a proceeding in circumstances other than those
set out in, and without complying with, subsections (1) to (3) if
the tribunal makes the order in accordance with the provisions of
an Act that are in force on the day this section comes into
force.

8.Pursuant to §17.1(2) of the SPPA, a Tribunal may only award
costs if it has made rules regarding each of the matters set out
in §17.1(4): Ontario (Director (Environmental Protection Act)) v.
Becker Milk Co., (2005) 78 O.R. (3d) 556 (On.S.Ct.) at para. 9.

9.The Tribunal has not made Rules regarding the awarding of costs
and therefore, in my view, I have no authority to award costs:
Dunn v United Transportation Union, Local 104, 2008 HRTO 405
(CanLII) [CHRR Doc. 08-1065].

10.The respondents asked, in the alternative, that I exercise my
discretion to prevent the applicant’s abuse of this Tribunal’s
process caused by the unexplained withdrawal, by making a
monetary award against the applicant.

11.In my view, this may be simply another way to frame the
request for costs and I am concerned about whether the Tribunal
appropriately can avoid the lack of statutory authority to award
costs by framing it as an order to prevent an abuse of process.

12.In any event, I do not find that the applicant has abused the
process in any way. The applicant filed an allegation of
discrimination based on a refusal or possibly an unwarranted
delay in accepting her gym application. On the respondent’s own
evidence, they did delay in accepting her application and in
their view would have been justified in refusing the application.
The Application therefore raised important and novel questions
about the scope of the Code and its application to transgendered
individuals.

13.Further, I find that the respondents may have caused
unnecessary legal costs by raising spurious preliminary issues.
They raised constitutional arguments which they subsequently
abandoned. The respondents also sought extensive production of
the applicant’s entire medical history, some of which I found to
be completely irrelevant to the issues raised in the Application.

14.The request to withdraw the Application is accepted. The
request for costs or other relief is dismissed.

^^

BRITISH COLUMBIA 

SEX DISCRIMINATION 
Indexed as: Stopps v. Just Ladies Fitness
(Metrotown) Ltd. (No. 3) 
Cited: (2006), 58 C.H.R.R. D/240, 2006 BCHRT 557 
CHRR Doc. 06-767
Paragraphs 1  – 150

Ralph G. Stopps 
Complainant 
v. 
Just Ladies Fitness (Metrotown) Ltd. and Deneige D. 
Respondents 
Date of Decision: 
November 21, 2006 
Before: 
British Columbia Human Rights Tribunal, Judy Parrack 
File No.: 
2157 
Appearances by: 
Ralph G. Stopps, on his own behalf 
Geoffrey J. Litherland, Counsel for the Respondents 

SEX DISCRIMINATION – PUBLIC SERVICES AND FACILITIES – ATHLETICS –
membership in gym denied – private club membership denied –
PUBLIC DECENCY – gender preference for gym members – BUSINESS
NECESSITY – gym membership rules discriminatory for economic
reasons 

DISCRIMINATION – right to privacy – bona fide qualification –
definition of discrimination – Law test (definition of human
dignity) – Meiorin/Grismer test – REASONABLE ACCOMMODATION – duty
to accommodate short of undue hardship – HUMAN RIGHTS – nature
and purpose of human rights legislation – EVIDENCE – expert
evidence – credibility 

Summary: The B.C. Human Rights Tribunal ruled that Ralph G.
Stopps was not discriminated against when he was denied a
membership at Just Ladies Fitness, a women-only gym and exercise
facility. 

There are twelve Just Ladies facilities in the Lower Mainland,
with about 40,000 members. All members are women. The Just Ladies
gyms provide an easy-going and friendly atmosphere with special
exercise equipment designed for women, smaller weights,
post-natal fitness classes and child-minding areas. The women who
are members of Just Ladies prefer to use an exercise facility
where they are not in the company of men, and where they can have
some privacy from “the male gaze” while they are scantily clad
and working out. 

In October 2004, Mr. Stopps decided to apply for a membership at
Just Ladies, although there were co-ed exercise facilities closer
to his home. His interaction with staff at Just Ladies in the
Metrotown outlet where he went to apply was somewhat
confrontational. He was told that he could not be a member
because Just Ladies was a women-only facility. He argued that
refusing him was prohibited by human rights law and informed the
staff that he intended to file a complaint. 

In its analysis of the complaint, the Tribunal considered two
different tests set out by the Supreme Court of Canada: the test
set out for analysis of §15 of the Charter in the Law case and
the test set out for discrimination in statutory human rights
cases dealing with services in Grismer. The Law test requires not
just showing that there is differential treatment based on a
prohibited ground of discrimination, but also that the treatment
was discriminatory because it injured the dignity of the
complainant. The Meiorin/Grismer test requires showing that the
service provider could not accommodate the complainant because
altering the exclusionary rule would cause undue hardship. 

The Tribunal concluded that Mr. Stopps failed to show that he had
been discriminated against. He could not show that there were
adverse affects on his dignity because he was refused a
membership in Just Ladies. Co-ed exercise facilities were
available to him that were closer to his home. 

Further, the Tribunal concluded that Just Ladies could not
accommodate Mr. Stopps without undue hardship. If Just Ladies had
admitted Mr. Stopps it would have had to admit all men. The
Tribunal accepted evidence that women are more likely to have
poor body images and to feel self-conscious and “assessed” when
men are looking at their bodies. Because of the cultural emphasis
on fixed notions of female beauty, some women are more
comfortable using women-only exercise facilities. If men were
admitted to the facility, women would lose the opportunity to
have a place for exercise in which they do not feel watched and
evaluated. 

The Tribunal accepted that the character of the business would be
changed entirely if Mr. Stopps and other men were admitted, and
the understanding on which the 40,000 women had joined would be
abandoned. The value to the women of having a women-only exercise
space would be lost. 

The Tribunal dismissed the complaint. 

See also (No. 1) (2005), CHRR Doc. 05-334, 2005 BCHRT 255 and
Stopps v. Just Ladies Fitness and D. (2005), CHRR Doc. 05-449,
2005 BCHRT 355. 

CASES CITED 

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143,
10 C.H.R.R. D/5719: 76, 78, 90 

B.C.G.E.U. v. British Columbia (Public Service Employee Relations
Comm.) (2002), CHRR Doc. 02-234, 2002 BCCA 476: 87 

British Columbia v. Bolster (No. 2) (2004), 49 C.H.R.R. D/101,
2004 BCHRT 32: 81 

British Columbia (Public Service Employee Relations Comm.) v.
B.C.G.E.U., [1999] 3 S.C.R. 3, 35 C.H.R.R. D/257: 119 

British Columbia (Superintendent of Motor Vehicles) v. British
Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, 36
C.H.R.R. D/129: 89, 119 

British Columbia Public School Employers’ Assn. v. British
Columbia Teachers’ Federation (2003), 15 B.C.L.R. (4th) 58, 2003
BCCA 323: 87 

Canada (Treasury Board) v. Robichaud, [1987] 2 S.C.R. 84, 8
C.H.R.R. D/4326: 77 

Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.): 5 

Foster v. Back Bay Spas, Inc., Mass. Super. LEXIS 194 (1997): 133


Health Employers Assn. of British Columbia v. B.C.N.U. (2006),
CHRR Doc. 06-905, 2006 BCCA 57: 88 

Kemess Mines Ltd. v. I.U.O.E., Local 115 (2006), CHRR Doc.
06-906, 2006 BCCA 58: 88 

Keyes v. Pandora Publishing Assn. (No. 2) (1992), 16 C.H.R.R.
D/148 (N.S. Bd.Inq.): 78, 110, 126, 143 

Kuczerpa v. Kimberley and Dist. Home Support Service Society
(1995), 24 C.H.R.R. D/60 (B.C.C.H.R.): 142 

Law v. Canada (Minister of Employment and Immigration), [1999] 1
S.C.R. 497: 83, 90, 109 

Livingwell Inc. v. Pennsylvania (Human Relations Comm.), 147 Pa.
Commw. 116: 129 

McKale v. Lamont Auxiliary Hospital (1986), 8 C.H.R.R. D/3659
(Alta. Bd.Inq.): 141 

McKale v. Lamont Auxiliary Hospital (1987), 8 C.H.R.R. D/4038
(Alta. Q.B.): 141 

Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd.,
[1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 77, 80, 91 

Reynolds v. British Columbia Mental Health Society (1992), 16
C.H.R.R. D/499 (B.C.C.H.R.): 92, 141 

Rossi v. Prince George School Dist. No. 57 (1985), 7 C.H.R.R.
D/3237 (B.C.C.H.R.): 142 

S.E.I.U., Local 333 v. North Central Health Dist. Board (1995),
28 C.H.R.R. D/61 (Sask. H.R.Comm.): 138 

S.E.I.U., Local 333 v. North Central Health Dist. Board (1997),
28 C.H.R.R. D/67 (Sask. Q.B.): 138 

Saskatchewan (Corrections Branch) (Re) (No. 1) (1980), 1 C.H.R.R.
D/49 (Sask. H.R.Comm.): 139 

Saskatchewan (Corrections Branch) (Re) (No. 2) (1982), 3 C.H.R.R.
D/1047 (Sask. H.R.Comm.): 139 

Saskatchewan (Corrections Branch) (Re) (No. 3) (1983), 4 C.H.R.R.
D/1236 (Sask. H.R.Comm.): 139 

Sheridan v. Sanctuary Investments Ltd. (No. 3) (1999), 33
C.H.R.R. D/467 (B.C.H.R.T.): 151 

Spa Lady (Re) (1980), 1 C.H.R.R. D/90 (Sask. H.R.Comm.): 137 

Stanley v. Royal Canadian Mounted Police (1987), 8 C.H.R.R.
D/3799 (C.H.R.T.): 140 

Stevenson v. Fernwood Fitness Centres Pty. Ltd. (1996) E.O.C.
92-782: 134 

Stopps v. Just Ladies Fitness (Metrotown) Ltd. (No. 2) (2005),
CHRR Doc. 05-453, 2005 BCHRT 359: 155 

Vancouver Rape Relief Society v. Nixon (No. 2) (2005), 16
C.H.R.R. D/255, 2005 BCCA 601: 87 

Waters v. British Columbia (Ministry of Health Services) (2003),
46 C.H.R.R. D/139, 2003 BCHRT 13: 81 

Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872: 78 

Zurich Insurance Co. v. Ontario (Human Rights Comm.), [1992] 2
S.C.R. 321, 16 C.H.R.R. D/255: 151 

LEGISLATION CITED 

Canada 

Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B of the Canada Act 1982
(U.K.), 1982, c. 11 

§15: 84 

§15(1): 85 

British Columbia 

Human Rights Code, R.S.B.C. 1996, c. 210 

§3: 79 

§8: 1, 75, 89 

§8(2)(a): 82, 151, 153 

§13: 87 

§27: 154 

§27(1)(e): 158 

§37(1): 159 

§37(4): 158 

§41: 137 

§42: 137 

Saskatchewan 

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 

§12(2): 137 

§48: 137 

International 

Australia 

Equal Opportunity Act 1995 (Vic.), §83: 134 

INTRODUCTION 

[1] Ralph Stopps filed a complaint alleging that Just Ladies
Fitness (Metrotown) Ltd. (“Just Ladies”) and Deneige Davis
discriminated against him in the provision of a service
customarily available to the public based on his sex contrary to
§8 of the Human Rights Code [R.S.B.C. 1996, c. 210]. 

[2] Just Ladies is a women-only gym. Mr. Stopps alleges that he
was denied a membership in the gym because he is a man and that
this constitutes discrimination based on his sex. Just Ladies
denies it discriminated. 

[3] Mr. Stopps gave evidence on his own behalf. Mr. Stopps served
C. Patterson with an Order to Attend the hearing. Ms. Patterson
did not appear in response to the Order, nor did she advise the
Tribunal that she was unable to attend. Mr. Stopps said that Ms.
Patterson told him that she would not attend. In light of this,
Mr. Stopps decided that he did not intend to call her as a
witness. However, had he chosen to do so, the Tribunal would have
taken the necessary steps to enforce its Order to Attend through
an application to the BC Supreme Court. 

[4] Ms. Davis, Dr. Gillian Creese, Janie Tsung San Chang, Yasmin
Ebrahim and Charles Lawson gave evidence for Just Ladies. 

EVIDENCE 

Credibility 

[5] There were some differences in the evidence which requires
that I assess the witnesses’ credibility. In making such an
assessment, I have applied the following test set out in Faryna
v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.): 

The credibility of interested witnesses, particularly in cases of
conflict of evidence, cannot be gauged solely by the test of
whether the personal demeanour of the particular witness carries
conviction of the truth. The test must reasonably subject his
story to an examination of its consistency with the probabilities
that surround the currently existing conditions. In short, the
real test of the truth of the story of a witness in such a case
must be its harmony with the preponderance of the probabilities
which a practical and informed person would readily recognize as
reasonable in that place and in those conditions. 

[6] In assessing credibility, I have also considered a number of
factors, including witnesses’ motives, their powers of
observation, their relationship to the parties, the internal
consistency of their evidence, and inconsistencies and
contradictions in relation to other witnesses’ evidence. 

[7] With some exceptions, I found that all the witnesses gave
their evidence in a forthright manner. There is some dispute
about what occurred on October 2, 2004, when Mr. Stopps applied
for a membership at Just Ladies. Where there was a dispute in the
evidence between Mr. Stopps and Ms. Davis, I generally preferred
Ms. Davis’s evidence. My reasons for doing so will be set out
below. 

Background to the Complaint 

[8] Mr. Stopps is 32 years old and has a Bachelor of Arts in
Psychology. He has lived in the Vancouver area since 1994 and
currently lives near Metrotown. He works in the renovation
business doing mostly physical labour. 

[9] Mr. Lawson is the President and Chief Executive Officer of
Just Ladies Fitness and owns the Metrotown location through a
holding company with his wife. He opened the first women-only
fitness facility in 1992 and, since that time, his business has
expanded significantly. He provided an overview of the company,
referred to in this decision as “Just Ladies Fitness,” and its
operations. 

[10] There are twelve Just Ladies Fitness locations in the Lower
Mainland of British Columbia with 40,000 members. There has never
been a male member. There are approximately 300 employees, and
150 independent contractors most of whom are women working in the
facilities. The Metrotown location opened in 2001; it currently
has 3,500 members and approximately thirty female employees. 

[11] There are four men working for Just Ladies Fitness. Mr.
Lawson, his son, who is the Vice-President, and two male repair
and maintenance men. 

[12] Mr. Lawson opened a women-only facility because, through his
experience with a co-ed facility, he saw that two out of three
women who joined that facility would not maintain their
membership. When deciding where to locate a women-only facility,
Mr. Lawson will consider a number of factors including: the need
for safe and monitored parking lot and the travel time to the
facility for those in the community. The marketing research done
by Just Ladies Fitness indicates that women are prepared to
travel a little further, and to bypass co-ed facilities, to
attend a women-only facility. The hours of each facility are
designed to meet the needs of the female members in the specific
community. 

[13] Mr. Lawson said women like the cleanliness of the Just
Ladies Fitness facilities, how the equipment is maintained, the
private showers and change areas. The atmosphere tends to be more
easy-going and friendlier than in a co-ed facility. There are
programs that are geared to women such as nutritional programs,
pre – and post-natal fitness programs and a child-minding area.
There is special equipment designed for women, such as the Lady
Apex equipment, which tends to be smaller than other equipment
but provides the same results. There are smaller weights which
are not as intimidating for women. There is also Keiser
equipment, which operates on an air-pressure system preferred by
senior women; the Keiser system is also used by men and used in
co-ed facilities. 

[14] Mr. Lawson says that women-only facilities are easier to
operate; women do not tend to cause as much “grief” as men and
the capital costs associated with running a women-only facility
are less than running co-ed facilities. 

[15] In some Just Ladies Fitness facilities, there is a greater
concern for women’s privacy for religious reasons. For example,
some women members cannot be seen by a male unless fully clothed.
For these women, special care is taken to ensure that men are not
on the premises and, if a man must come to repair equipment, it
is done in off hours. 

[16] Just Ladies Fitness has partnered with a number of other
companies to develop and market clothing, vitamin supplements and
gym bags especially designed for its members. 

[17] Mr. Lawson said that Just Ladies Fitness sends out
promotional materials and complimentary passes to entice women to
visit and/or join its facility. The promotional material is not
directed at men and Mr. Lawson says that the name “Just Ladies
Fitness” makes it clear that the materials are directed at women.
They have never had another man ask to join. 

[18] Mr. Lawson said that the process of becoming a member of
Just Ladies Fitness is standard across all of its facilities. A
woman is asked to attend a thirty-minute interview, the purpose
of which is to assess the woman’s fitness needs, determine [her]
goals, show [her] the facility, and review the pricing structure.
The pricing structure at Just Ladies Fitness is more expensive
than at other clubs. 

[19] Just Ladies Fitness’ Membership Application and Agreement
(the “Agreement”), does not say that it is a women-only facility.
It states that a member may bring a “female guest” and provides
for mother/daughter memberships. It says Just Ladies may change
its policies, programs and facilities from time to time provided
that such a change does not “materially affect” the services
provided to a member. The Temporary Membership Agreement does not
say that the facility is women-only, but uses only female
pronouns. 

[20] Mr. Lawson said that Fitness World in the Metrotown area is
a co-ed facility, although they have two women-only studios
within the facility. There are a number of other co-ed facilities
in the area. 

[21] Just Ladies Fitness has been approached by some of its
members, in the face of this complaint, asking if the facility
will continue to be an all-women’s facility. As a result of some
of these concerns, Just Ladies Fitness has agreed to refund, at
least in one situation, the membership fee if the facility is
forced to become co-ed. In Mr. Lawson’s view, all of the
contracts that he had signed with the members of Just Ladies
Fitness might be null and void since those contracts were entered
into based on the premise that the member was joining a
women-only facility. 

[22] In approximately one-half of the leases signed by Just
Ladies Fitness, and as a term of the lease, the company is
prohibited from having a co-ed facility. Mr. Lawson said that if
Just Ladies Fitness were forced to become co-ed, the goodwill
developed through the name of Just Ladies Fitness would be lost.
The facilities would have to be completely redone to incorporate
workout equipment for men and men’s changing and washroom
facilities. In the face of these challenges, Mr. Lawson expected
he would close his business. 

[23] Ms. Davis, the club manager of the Metrotown location,
referred to in this decision as “Just Ladies,” at the relevant
time, described it. She said that there is Lady Apex
cardiovascular equipment, lighter free-weights and a Keiser
weight system. There is other equipment such as treadmills and
stair-masters. Ms. Davis is familiar with all the equipment and
understands the benefits of their uses. She said that men could
use the equipment that is especially designed for women, but the
benefits may not be as positive and they might injure themselves.


[24] Metrotown offers a variety of programs such as yoga, weight
training classes and Tai Chi. It offers a child-minding area, pre
– and post-natal classes, and is close to public transit. Boys
and girls are allowed in the child-minding area, up to the age of
11, with the average age being 4. Children are not allowed in the
workout areas. There is an area for breast-feeding in the back of
the child-minding area. There are a variety of membership
packages. Just Ladies offers excellent services, which are
reflected in its fee structure. 

[25] Women’s workout clothing is sold at the Metrotown location.
It has a parking lot that is well lit and patrolled by Impark.
Ms. Davis said that the women at Metrotown wear appropriate
workout clothing, some of which is revealing and might put a
woman into a “vulnerable” position. There are no privacy screens
in the gym. She said that there is no inappropriate nudity in the
facility. 

[26] Ms. Davis said that there are no male employees. When
maintenance men come to the facility, the staff posts the
information on the doors, announces it over the public-address
system and the receptionist advises those entering the facility
that there are men working inside. 

Events Leading Up to October 2, 2004 

[27] During the period leading up to October 2004, Mr. Stopps had
been considering joining a gym. He was looking for a place that
had fat-burning cardiovascular equipment and other programs such
as yoga, although he has never tried yoga or other similar
programs. He wanted a facility close to his home. 

[28] He had looked at various options, including the local
community recreational facility (the “Centre”), which was close
to Metrotown. He had gone to the Centre in the past, but it was
not a positive experience for him. In his view, the Centre did
not have sufficient cardiovascular equipment to meet his exercise
requirements. Further, the age group that attended the Centre was
younger and he did not like the music that was played in the gym.
It had no personal trainers. Ms. Davis said that the Centre had
recently gone through a major renovation and had a new
cardiovascular workout room. Mr. Stopps was unaware of this. 

[29] Mr. Stopps said that he also considered Fitness World, but
that he believed that it was a women-only fitness facility as it
had a banner out front advertising a women-only space. The only
other fitness facility in his immediate neighbourhood was Just
Ladies. There were other fitness gyms a little further away but
since Mr. Stopps wanted to walk to the gym, seeing this as part
of his initial workout, they were too far away. Fitness World is
a forty-five-minute walk from his home and, in his view, was too
far to walk to. He was unaware that there are a number of gyms
within a five-mile radius of his home. 

[30] A promotional flyer (the “Flyer”) was sent to the general
public by Just Ladies. The Flyer offered a ten-day free trial
period for an individual and a friend, valued at $30. Mr. Stopps
received the Flyer in the mail. After reviewing the Flyer, he
decided that this would be a good opportunity for him to frequent
the gym over a short period of time, test the equipment and try
out other programs, such as yoga. Mr. Stopps no longer had a copy
of the Flyer; however, a similar document was made available at
the hearing and there was no mention that the offer was not
available to men and that men were not permitted to join Just
Ladies. Mr. Stopps said, although the Agreement uses only female
pronouns, there is no explicit mention of men not being able to
join. 

[31] Mr. Stopps said that, although he knew that similar programs
were available at co-ed gyms, they were not offering a ten-day
free pass. He said he never tried to join Fitness World even
though he thought it was a women-only facility. He has not filed
a complaint against it, saying that this complaint will resolve
the issue of women-only gyms. 

[32] Mr. Stopps had not belonged to a privately owned gym before,
he does not work out regularly and had not approached any other
gym to see about membership. Ms. Davis said that Fitness World
was a co-ed facility and the costs of its memberships were lower
than at Just Ladies. 

[33] Mr. Stopps said he did not know that Just Ladies excluded
men. It was his belief that it was a “marketing” ploy and it was
directed at women. I did not find this evidence credible. It was
clear from the entirety of Mr. Stopps’s evidence that he knew
Just Ladies was a women-only facility. He went there specifically
seeking to be denied a membership; he would not have expected
this result if it was a co-ed facility. 

The Events of October 2, 2004 

[34] Mr. Stopps attended Just Ladies on October 2, 2004, with the
Flyer and the attached guest pass. He walked to the facility
which was a couple of blocks west of the Metrotown Shopping
Centre. 

[35] Mr. Stopps entered the lobby of Just Ladies and went to the
reception desk. Off to one side of the lobby was an office; the
other side led to the workout facilities. There were two women
working at the reception desk. He said that, once he got their
attention, he told them that he wanted to join. The women were
surprised at the request and one responded by saying the he could
not join because it was a women-only gym. Mr. Stopps responded by
asking if men had ever belonged to the gym; one receptionist said
no. Mr. Stopps said he then told the receptionists that excluding
men was contrary to human rights law. He then asked to speak to
the manager. He saw no other men in the facility. 

[36] Mr. Stopps was told by the receptionist that the manager was
not in the building; he then asked to speak to the person in
charge. Mr. Stopps said that the receptionists were evasive. He
said he was becoming annoyed and agitated, although he believed
his feelings were not visible. Mr. Stopps said that he spoke in
an excited voice, but did not agree that he spoke loudly.
However, I find that he did speak loudly as the loud voice
resulted in Ms. Davis leaving her office and coming to [the]
reception area. She would not have done so unless she had a
reason. When Ms. Davis arrived in the reception area, Mr. Stopps
asked her if she was the supervisor in charge; she said yes. She
was also acting as the membership co-ordinator that day. 

[37] Mr. Stopps told Ms. Davis that he wanted to take advantage
of the ten-day pass; her response was to tell him he could not
become a member. Mr. Stopps then asked her if she was denying him
a service because he was a man and asked her if she knew that
such a denial might be the factual basis for a human rights
complaint. She responded by saying that she was not denying him
any service but that Just Ladies was a women-only fitness
facility. Mr. Stopps then asked for a written policy. 

[38] Mr. Stopps said he had read about the “marine drive golf
course case,” which he said was about the barring of one gender
from using certain golf course facilities. He said that such a
facility could not discriminate based on gender and that, in his
view, was “common sense.” He agreed in cross-examination that he
had read about this case and obtained some information from the
Tribunal before going to Just Ladies. He agreed that he raised
human rights laws with Ms. Davis. Mr. Stopps recalls listing the
grounds of discrimination and specifically referring to sex,
sexual orientation and religion. 

[39] A number of women started to gather in the lobby while Mr.
Stopps was speaking to Ms. Davis so he asked her if they could
talk in her office. She responded by saying no, but then directed
him to an empty meeting room beside the lobby. Mr. Stopps said
that Ms. Davis did not sit down but stood in a manner that he
described as being “confrontational.” He asked her again if he
was being denied a service. He says that she did not respond. He
indicated that perhaps she should call someone who might have
more authority. 

[40] Ms. Davis testified that she did not stand during the
discussion with Mr. Stopps. She said that it was important to sit
and be open to the discussion. I prefer Ms. Davis’s evidence
about how she acted when she met with Mr. Stopps. She had no
reason to treat Mr. Stopps disrespectfully or in a
confrontational manner. 

[41] Ms. Davis told Mr. Stopps that he would require an
appointment if he wanted to join, which was standard procedure.
She told him that no one had denied him a membership since she
was the acting membership co-ordinator and that was her
responsibility. She was not denying him a service. She said the
discussion was quite long, approximately twenty minutes. Ms.
Davis said that Mr. Stopps told her that she could not deny him a
service based on his sex, religion or sexual orientation and he
referred to “human rights.” Ms. Davis said that the nature of Mr.
Stopps’ questions indicated that he wanted to be denied a
service. He asked these questions at least four or five times; to
her it sounded like he was reading something word for word. He
made a reference to the golf course case, but Ms. Davis was not
familiar with it. 

[42] Ms. Davis told Mr. Stopps that she would call head office as
she had never dealt with this type of issue. She described Mr.
Stopps as being very agitated at the beginning of their
discussion. He then calmed down but became agitated again towards
the end of the meeting. At times, she felt uncomfortable and she
described Mr. Stopps as being “hostile.” 

[43] After the initial discussion, Ms. Davis left the meeting
room and went to her office. Mr. Stopps said that he waited a few
minutes then start[ed] walking around, went into the lobby then
over to Ms. Davis’s office where he said he saw her sitting on
the floor of the office. Mr. Stopps thought this was unusual; he
then returned to the meeting room. Ms. Davis denied sitting on
the floor. I accept that Ms. Davis did not sit on the floor; she
did not strike me as a person that would act in such an
unprofessional manner when dealing with a difficult situation. 

[44] Ms. Davis came back to the meeting room and said that she
had been unable to contact anyone at head office. Again, Mr.
Stopps asked her if men were prohibited from joining Just Ladies
and she responded by saying that it was a women-only facility.
Ms. Davis said that Mr. Stopps wanted her to specifically say
that he was being denied a service. 

[45] Mr. Stopps said the discussion then took a turn for the
worse. He described Ms. Davis as being curt, evasive,
disrespectful, saying as little as possible. However, in
cross-examination, Mr. Stopps agreed that she did listen to him.
Mr. Stopps said that Ms. Davis refused to give him her name,
which she denies, but he saw her name on her name tag as being
Deneige D. He told her that he was not interested in making a
complaint against her but needed her name so that he could say
who he had spoken to. He asked for the phone number for head
office but she refused to give it to him. Ms. Davis said that she
treated Mr. Stopps in a respectful and professional manner and I
accept that she did so. 

[46] She then called the manager on-call for the weekend who told
her that someone would contact Mr. Stopps next week, which is
what she told Mr. Stopps. She understood that it would be someone
from head office that would contact him, a practice that was
unusual. Although Mr. Stopps said that Ms. Davis refused to call
anyone, it was clear that she did so because he knew that someone
was to call him the next week. 

[47] Everyone who comes to Just Ladies must have an interview.
The interview is to assess the needs of the client, to review the
membership fees and to provide an opportunity to complete the
necessary forms. Mr. Stopps said that Ms. Davis said she was not
denying him a membership, only that he would have to return for
an interview, which could not be done that day. She said he would
be contacted on Monday. Mr. Stopps said that he wanted an
interview so that he could join Just Ladies. During the meeting
with Ms. Davis, Mr. Stopps did not ask any questions about how
much a membership would cost, what programs were available and
did not ask about the types of equipment in the facility;
however, he assumed that the cardiovascular equipment catered to
women. He did not ask about co-ed programs or about any other
service that might be offered by Just Ladies. In Ms. Davis’s
experience, the first thing a prospective person asks about is
the cost of the membership. As a result of her interactions with
Mr. Stopps, Ms. Davis did not believe that Mr. Stopps had any
intention of becoming a member of Just Ladies. 

[48] After these discussions, Mr. Stopps and Ms. Davis returned
to the lobby, where there were a number of people milling about.
He said that he was being discriminated against because he was a
male. He said he received “withering” looks which made him
nervous; one woman entered his personal comfort zone and he had
to ask her to move back. He told Ms. Davis that he felt like the
clients were attempting to intimidate him. 

[49] Mr. Stopps also asked Ms. Davis for an application for
employment. He had no interest in applying for a job, but
believed that it would be logical for Ms. Davis to assume that he
was. He wanted to see how she would react; he said he asked for
the application to demonstrate that Just Ladies discriminated
against men based on gender. He never pursued the employment
issue. Ms. Davis said she felt that Mr. Stopps had no intention
of applying for a job with Just Ladies; he was just trying to
find more information to support a case against it. 

[50] Mr. Stopps said he expected a “fuss” when he went to Just
Ladies on October 2, 2004, although he had hoped that this would
not happen. However, he thought Just Ladies could make an
exception for him, although he had no information that other men
had been given a membership. He believed that if he was denied a
membership that could contravene human rights law, he said he was
operating from a general understanding of equality issues. 

Events after October 2, 2004 

[51] Mr. Stopps waited for a call on Monday and, having not heard
from anyone by 2:30 p.m., he called Just Ladies saying that he
was waiting to hear about an interview time. He was told that Ms.
Davis had not yet arrived and that he should call back later. He
called at least one other time and then called again between 4:30
p.m. and 5:00 p.m. He was told that Ms. Davis had left for the
day. Mr. Stopps told the receptionist that this was “unacceptable
discrimination.” He advised the receptionist that it would be in
Just Ladies’ interest to have someone call him the next day. If
they failed to do so, he said Just Ladies would be sorry, or
words to that effect; he would contact the Better Business Bureau
or file a complaint. Mr. Stopps said that the receptionist ended
the call but he could not say why. However, he did say that he
was yelling and was upset. 

[52] Ms. Davis confirmed that Mr. Stopps left her messages on
October 4, 2004. She was, however, in appointments all day and
was unable to return his calls. After his third call, she started
to feel uncomfortable. When he called again, she told the
receptionist to tell him that he had already left messages; she
was not to say anything else except to advise him that he would
be receiving a call. She said that Mr. Stopps continued to call
and the receptionist was shaken and close to tears. She said the
receptionist did not tell Mr. Stopps that she had left for the
day. Mr. Stopps called again and Ms. Davis told the receptionist
not to answer the phone. I accept Ms. Davis’s evidence regarding
the number and nature of the calls made by Mr. Stopps on October
4; this is why she told the receptionist to stop answering the
phone. 

[53] Mr. Stopps said he went to Just Ladies on two other
occasions. Once he was trying to locate Ms. Davis’s car licence
number so that he could call her as a witness. On the second
occasion, he was in the parking lot in front of the building
giving a television interview. Mr. Stopps said that, during this
interview, he was confronted by someone who worked at Just
Ladies, and was told that he was on private property. There was a
brief exchange in which Mr. Stopps told that person that he did
not appreciate her trying to intimidate him. 

[54] Mr. Stopps said that if Just Ladies had concerns about men
in the gym, or if those men were “ogling” the women, they could
be given a “stern warning,” the police could be called and/or
their membership could be cancelled. He assumed that only a small
number of men would join Just Ladies, as it would still be
marketed towards women. 

[55] Mr. Stopps said that he did not file this complaint for
personal gain. Any remedy that he might receive, if his complaint
was found to be justified, would be donated to two different
charitable organizations. He said he filed this complaint to make
the point that the treatment he received was unacceptable. He
said that it is unacceptable to have either men-only or
women-only gyms, given equality between the sexes. He said that
the best way to deal with inequality is through integration,
education and inclusion. 

[56] Mr. Stopps said that women have gained a number of rights
over the last thirty years. Although men of privilege have
maintained their advantages, other men’s rights have “fallen by
the wayside” and they need to “push back” and this complaint may
benefit those men. Although this is not why he filed his
complaint, it might be a positive side effect. He said that he
had no malicious motive for filing this complaint. 

[57] Mr. Stopps said that, since the filing of the complaint, he
has been depressed and has found his dealings with the media
difficult. He has not joined any other gym. 

The Survey 

[58] Just Ladies Fitness arranged for a questionnaire to be
completed by its members after this complaint was filed (the
“Survey”). After preparing the Survey, Just Ladies Fitness
delivered fifty copies of it to each of its various locations and
placed at the front desk of the facility. A total of 550 were
distributed; 450 members responded. 

[59] Those completing the questionnaires gave their consent to
the information being used in these proceedings. Just Ladies did
not suggest that this was an empirical study. However, it
suggested that the Survey reflected the views of the women who
are members of Just Ladies Fitness and who chose to voluntarily
fill out the form. 

[60] The overwhelming response was that the women preferred Just
Ladies Fitness because it was a women-only facility. There were
other reasons, including the child-care facilities, the size of
the equipment, the location and the cost. One woman said she
attended for religious reasons and many said that they felt safe
in the facility. A significant number of women said that they
would be very uncomfortable if men belonged to the facility and a
few women added the comment that they would quit if men were
allowed to join. 

[61] A number of women said that they joined Just Ladies Fitness
to avoid men staring at them or being “ogled” at by men. They
felt safe at the facility and away from the “prying” eyes of men.


Expert Evidence 

[62] Dr. Gillian Creese is a Professor in the Faculty of Arts at
the University of British Columbia. She teaches in the
Departments of Anthropology and Sociology. Her work focuses on
gender, social, and racial inequalities. Dr. Creese was qualified
as an expert to give evidence regarding gender and social
inequality. 

[63] Dr. Creese reviewed the Survey. Although her opinion was not
based on that Survey, it was consistent with her own research in
the area of gender relations. She agreed that the Survey did not
constitute a “scientific survey” but the responses did provide
some qualitative information. She found “no surprises” in the
responses. 

[64] Dr. Creese said that many women have a “problematic
relationship with their own bodies due to a poor self image.”
This is because the domina[nt] cultures of many Western
societies, including Canada, tend to define female beauty within
a limited range of norms, with an emphasis on thinness and
certain beauty characteristics. Such body images are reinforced
by the media. Women often turn to compulsive dieting and
sometimes to plastic surgery. As a result of these body issues,
women often curtail their physical activity in public spaces. In
this respect, women would feel that there bodies were subject to
“public display” if they worked out in a co-ed gym. They would be
uncomfortable, unduly self-conscious and might avoid working out
altogether. 

[65] Dr. Creese said that men do not experience poor body image
in the same way, or to the same extent, as women. How a man looks
is not as important in defining their masculinity, although they
are affected by the images they see in the media about men. For
men, it is what they accomplish in other parts of their lives,
such as their economic successes and the amount of power and
authority they have in their workplace that are more important
than their appearance. Dr. Creese said that if women had more
economic security, or if there was a change in the general power
dynamics between men and women, then women’s self-body image
might not be a problem. 

[66] Some women are concerned about how they may be judged by men
in the gym. They seek out a female-only space because they feel a
greater level of comfort and safety to work on their fitness
issues. They learn about the equipment and develop their own
sense of physical accomplishment within this environment. In
these places, they are away from the “male gaze.” Further, men
tend to take up more personal space and this does not just relate
to their size. They tend to take ownership of their space; the
male gaze becomes part of that ownership. 

[67] Dr. Creese described the male gaze as one that contains an
assessment or appraisal of a woman, which is different from how
women look at each other. The male gaze is not just about
assessing the positive attributes of a women; it might also
convey that [sic] the fact that the woman is not “measuring up.”
Dr. Creese described the male gaze as being a form of “power.”
Women generally do not sexualize how they look at other women but
men often do. Women live in a world where they constantly
experience a power differential. There are times when women will
gaze at other women but, given that there is not the same power
differential between two women as opposed to between a woman and
a man, the impact is different. Dr. Creese agreed that not all
men engage in the male gaze and not all men feel that they are
more powerful than others, including women. Men also assess other
men. 

[68] Some women might choose to go to a women-only gym because
they have been the victim of male violence. They also go for
religious and/or cultural reasons. For example, women in some
cultures cannot be in a space where men can view their bodies;
they may be uncomfortable in a co-ed environment. 

[69] The Survey reflected that just over 80 percent of the women
responding said they were “not comfortable” or “not very
comfortable” working out alongside men. Dr. Creese said these
results were consistent with her opinion. The women surveyed said
that they felt uncomfortable going to a co-ed gym because they
felt ogled, harassed, intimidated and stared at by the men. 

[70] Dr. Creese said that some women may feel more comfortable
working out in their own private space. However, the cost of
setting up a home gym is too expensive, so a women-only facility
is the next best option. 

Members of Just Ladies 

[71] Ms. Chang has been a member of Just Ladies for approximately
two years. She did not complete a questionnaire. She has been a
member of co-ed facilities. She described liking the facility as
it was clean and the machines were always wiped down. The
lighting was better; it did not make her feel self-conscious. She
said that it was less intimidating to learn about, and to use,
the equipment in the absence of men. Just Ladies had more
“lower-end” weights. She described men as being more “aggressive”
when working out when doing certain exercises, such as pumping
iron. 

[72] Ms. Chang likes working out with other women; these women
cross all age groups and they are not self-conscious about being
there, despite their weight or physical abilities. The women were
doing the best they could and she felt motivated by this; it
encouraged her to use the facilities more often. When she worked
out in a co-ed facility, she felt pressured to “look good” when
she arrived at the gym; she felt that she would be judged by the
men otherwise. When she goes to Just Ladies, she goes “as is” and
knows that it is not important. She feels comfortable at Just
Ladies. She said that, although women may show off, it is much
less so than at a co-ed gym. 

[73] Ms. Ebrahim has been a member of Just Ladies for three
years. She completed one of the questionnaires. She has never
belonged to a co-ed facility and would not join a co-ed facility.
However, she does not go to Just Ladies for cultural or religious
reasons. She understands that Fitness World was a co-ed facility
because she had a male neighbour who went there. She could not
say if it had changed to a women-only facility. 

[74] She joined Just Ladies because she feels uncomfortable and
self-conscious working out in front of men. She does not worry
about what she wears when she goes to the gym. There are women of
all ages, a wide range of cultures and races, and some women wear
head-coverings while at the gym. 

ANALYSIS AND DECISION 

Legislation 

[75] Section 8 of the Code provides, in part: 

8(1) A person must not, without a bona fide and reasonable
justification, 

(a) deny to a person or class of persons any accommodation,
service or facility customarily available to the public, or 

(b) discriminate against a person or class of persons regarding
any accommodation, service or facility customarily available to
the public, 

because of the... sex... of that person or class of persons. 

(2) A person does not contravene this section by discriminating 

(a) on the basis of sex, if the discrimination relates to the
maintenance of public decency or to the determination of premiums
or benefits under contracts of life or health insurance, or... 

What Is Discrimination? 

[76] In Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143 [10 C.H.R.R. D/5719] (“Andrews”), Mr. Justice
McIntyre, speaking for the Court, set out the following
definition of discrimination (at §37 [C.H.R.R. §41759]): 

... [D]iscrimination may be described as a distinction, whether
intentional or not but based on grounds relating to personal
characteristics of the individual or group, which has the effect
of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds
or limits access to opportunities, benefits, and advantages
available to other members of society. Distinctions based on
personal characteristics attributed to an individual solely on
the basis of association with a group will rarely escape the
charge of discrimination, while those based on an individual’s
merits and capacities will rarely be so classed. 

[77] It is a well-established principle that human rights
legislation must be interpreted broadly and purposively, in
acknowledgement of its special, quasi-constitutional nature:
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at §8 [8
C.H.R.R. D/4326 at §33935]. In O’Malley v. Simpsons-Sears Ltd.
(1985), 7 C.H.R.R. D/3102 (S.C.C.), Mr. Justice McIntyre said (at
§24766): 

... It is not, in my view, a sound approach to say that according
to established rules of construction no broader meaning can be
given to the Code than the narrowest interpretation of the words
employed. The accepted rules of construction are flexible enough
to enable the Court to recognize in the construction of a human
rights code the special nature and purpose of the enactment...
and give to it an interpretation which will advance its broad
purposes. Legislation of this type is of a special nature, not
quite constitutional but certainly more than ordinary – and it is
for the courts to seek out its purpose and give it effect. The
Code aims at the removal of discrimination. This is to state the
obvious. Its main approach, however, is not to punish the
discriminator, but rather to provide relief for the victims of
discrimination. It is the result or the effect of the action
complained of which is significant... if its effect is to impose
on one person or group of persons obligations, penalties or
restrictive conditions not imposed on other members of the
community, it is discriminatory. 

[78] It is not every distinction that triggers the protections in
the Code: Weatherall v. Canada (Attorney General), [1993] 2
S.C.R. 872. A distinction may be necessary to promote and foster
equality: Keyes v. Pandora Publishing Assn. (No. 2) (1992), 16
C.H.R.R. D/148 (N.S. Bd.Inq.). In some circumstances, identical
treatment may result in serious inequality: Andrews at §26
[C.H.R.R. §41746]. 

[79] The determination of whether a distinction amounts to
discrimination is to be analyzed in a contextual and purposive
manner. Further, in considering whether there has been violation
of the Code, its purposes must be considered. These purposes are
set out in §3 as follows: 

3... . 

(a) to foster a society in British Columbia in which there are no
impediments to full and free participation in the economic,
social, political and cultural life of British Columbia; 

(b) to promote a climate of understanding and mutual respect
where all are equal in dignity and rights; 

(c) to prevent discrimination prohibited by this Code; 

(d) to identify and eliminate persistent patterns of inequality
associated with discrimination prohibited by this Code; 

(e) to provide a means of redress for those persons who are
discriminated against contrary to this Code. 

Prima Facie Case of Discrimination 

[80] Mr. Stopps has the burden of establishing, on a balance of
probabilities, a prima facie case of discrimination based on his
sex. A prima facie case of discrimination “is one which covers
the allegations made and which, if they are believed, is complete
and sufficient to justify a verdict in the complainant’s favour
in the absence of an answer from the respondent-employer”:
O’Malley at §24782. 

[81] In essence, Mr. Stopps must establish the following: 

1. that he is a member of a group protected in the Code; 

2. that he was denied a service customarily available to the
public or discriminated against in the provision of such a
service and that he suffered some adverse effect as a result; and


3. that his sex was a factor in the denial of the service or the
alleged; and 

(Waters v. British Columbia (Ministry of Health Services), 2003
BCHRT 13 [reported 46 C.H.R.R. D/139]; Bolster v. British
Columbia (Ministry of Public Safety and Solicitor General), 2004
BCHRT 32 [reported 49 C.H.R.R. D/101]). 

[82] Once Mr. Stopps has established a prima facie case of
discrimination, the burden shifts to Just Ladies to establish
that it has a defence to the discriminatory conduct. In this
case, Just Ladies relies on §8(2)(a) and argues that it did not
discriminate against Mr. Stopps because it denied him membership
for public decency reasons. It also argued that it has bona fide
and reasonable justification for its actions. 

[83] At the hearing of the complaint, I invited the parties to
make submissions on the applicability of the analysis in Law v.
Canada (Minister of Employment and Immigration), [1999] 1 S.C.R.
497 (the “Law analysis”). Just Ladies argued that this analysis
should apply in the circumstances of this case and Mr. Stopps
made submissions on this basis. 

[84] Law was decided under §15 of the Canadian Charter of Rights
and Freedoms (Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the
“Charter”), which generally applies to state action. In Law, the
Supreme Court summarized the §15 jurisprudence to date and set
out the following guidelines which are to be considered in a §15
analysis, which can be summarized as follows (at §39): 

1. [D]oes the impugned law (a) draw a formal distinction between
the claimant and others on the basis of one or more personal
characteristics, or (b) fail to take into account the claimant’s
already disadvantaged position within Canadian society resulting
in substantively differential treatment between the claimant and
others on the basis of one or more personal characteristics? 

2. [I]s the claimant subject to differential treatment on the
basis of one or more of the enumerated or analogous grounds? and 

3. [D]oes the differential treatment discriminate in a
substantive sense, by imposing upon or withholding a benefit from
the claimant in a manner which reflects the stereotypical
application of presumed group or personal characteristics, or
which otherwise has the effect of perpetuating or promoting the
view that the individual is less capable or worthy of recognition
or value as a human being or as a member of Canadian society,
equally deserving of concern, respect, and consideration? 

[85] Under the third criterion, the claimant is required to
establish that there has been both an objective and a subjective
negative impact on his or her dignity. After reviewing the
purposes of §15(1) of the Charter, Iacobucci J. considered the
meaning of human dignity and said that (at §53): 

... It is concerned with physical and psychological integrity and
empowerment. Human dignity is harmed by unfair treatment premised
upon personal traits or circumstances which do not relate to
individual needs, capacities, or merits. It is enhanced by laws
which are sensitive to the needs, capacities, and merits of
different individuals, taking into account the context underlying
their differences. Human dignity is harmed when individuals and
groups are marginalized, ignored, or devalued and is enhanced
when laws recognize the full place of all individuals and groups
within Canadian society. 

[86] Although this assessment is to be done from the perspective
of the claimant, it is not sufficient for the claimant to only
assert that his or her dignity has been adversely affected by the
law in question. The Court said that it must also be satisfied
that the claimant’s assertion that he was adversely treated is
supported by “an objective assessment of the situation.” In
considering all the circumstances, the question that must be
asked is whether a reasonable person, in a similar circumstance,
would find that the differential treatment had the effect of
demeaning his dignity (at §60). 

[87] Since the hearing of this complaint, the BC Court of Appeal
released its decision in Vancouver Rape Relief Society v. Nixon,
2005 BCCA 601 [reported 55 C.H.R.R. D/67], and discussed the
application of Law in cases arising under §13 of the Code and, in
particular as that question was addressed in British Columbia
Government and Service Employees’ Union v. British Columbia, 2002
BCCA 476 [CHRR Doc. 02-234] (“Reaney”) and British Columbia
Public School Employers’ Assn. v. British Columbia Teachers’
Federation, 2003 BCCA 323 (the “Teachers case”). The Court did
not conclusively answer the question of when the Law analysis
should apply. However, it appears from Madam Justice Saunders’
comments that the Law analysis may apply in some circumstances.
In considering the issue, she said the following (at §39): 

Both Reaney and the Teachers case, concerning §13(1)(b), fell
outside the definition in §1 of “discrimination.” Further, Reaney
concerned a condition of employment premised on a government
program that had been found not to contravene the equality
section of the Charter. The broad application of the Law
framework in a case without that governmental overtone is not
obvious to me, particularly in light of Meiorin [35 C.H.R.R.
D/257], Grismer [36 C.H.R.R. D/129] and Oak Bay [43 C.H.R.R.
D/487], and considering the issues otherwise referred to in the
Tribunal’s decision. However, that is an issue that must wait for
its own case. 

[88] In cases released by the Court of Appeal after Nixon, which
addressed issues under §13 of the Code, the Law analysis was not
considered or applied: Health Employers Assn. of B.C. (Kootenay
Boundary Regional Hospital) v. B.C. Nurses’ Union, 2006 BCCA 57
[CHRR Doc. 06-905]; Kemess Mines Ltd. v. International Union of
Operating Engineers, Local 115, 2006 BCCA 58 [CHRR Doc. 06-906]. 

[89] The law in British Columbia remains unclear as to whether
the Law analysis should apply in cases under §8 of the Code.
Further, where there is a policy at issue but that policy does
not contain any “governmental overtone,” it is unclear whether
the Law analysis should be applied. It seems to me that services
available to the public might engage more broadly framed policy
issues such as those raised in Grismer, infra. However, Grismer
was decided after Law and the Court did not apply the Law
analysis. 

[90] In this case, the issue of a women-only gym facility arose
in the context of two private actors; Mr. Stopps and Just Ladies.
There is nothing to suggest that these parties or the issues
raised in this complaint engage issues that have any
“governmental overtone.” However, the Law analysis provides some
useful guidelines for determining if a prima facie case of
discrimination has been established in cases where there is a
policy that excludes a group from a service or benefit being
provided to others. For example, one element that must be
established under the prima facie case is that Mr. Stopps
suffered some adverse consequence when he was denied membership
in Just Ladies. This assessment of whether there was some adverse
effect, in the circumstances of this case, necessarily requires
that there be an assessment of the adverse effect, not only from
the perspective of Mr. Stopps but also viewed in the context in
which he sought membership. In this respect, Law can be
interpreted as a further expression of the purposive analysis
first articulated in Andrews. 

[91] It is within this framework that I propose to consider Mr.
Stopps’ claim of discrimination and in doing so I propose to
address the elements of the prima facie test set out both in
O’Malley and in Law. Regardless of which approach is taken, I am
unable to find that Mr. Stopps has established a prima facie case
of discrimination in a purposive sense. 

Is Mr. Stopps a member of a group protected by the Code and was
his sex a factor in the alleged conduct? 

[92] The law is clear that men are protected under the ground of
sex in the Code: Reynolds v. British Columbia Mental Health
Society (1992), 16 C.H.R.R. D/499. 

[93] Mr. Stopps is entitled to the Code’s protections based on
his sex. The only reason he was denied membership at Just Ladies
was because he was a man. Therefore, this step in the prima facie
analysis has been met. 

[94] Whether he has suffered some disadvantage that warrants the
Code’s protection is an issue I will consider under the second
step of the analysis, to which I now turn. 

Did Mr. Stopps suffer an adverse effect as a result of Just
Ladies’ decision to deny him membership? 

[95] For the purposes of this complaint only, Just Ladies
conceded that it provides a service customarily available to the
public. 

[96] Mr. Stopps argues that he was adversely affected by Just
Ladies’ decision to deny him a membership and that he was
discriminated against in the provision of a service. 

[97] In this respect, it is important to consider the reasons why
Mr. Stopps went to Just Ladies. In essence, he says that he
wanted to improve his fitness level. He said that Just Ladies was
the closest facility to his home that provided the necessary
fitness programs and equipment and it had offered a ten-day free
membership. He could use the ten-day trial period to determine if
Just Ladies met his fitness requirements without incurring any
financial costs. 

[98] I accept that Mr. Stopps wanted to improve his level of
fitness. Being denied access to a fitness facility might
adversely affect his ability to meet this goal. However, he
admitted that he had not regularly attended a gym prior to going
to Just Ladies and had not sought to join another gym up to the
date of the hearing. In my view, this brings into question the
bona fides of Mr. Stopps’ reason for going to Just Ladies. 

[99] Mr. Stopps said that he had, in the past, gone to the Centre
to work out. He said that he did not like that facility for a
number of reasons, including the quantity and quality of the
equipment available, the lack of personal trainers, the age of
the clientele, the level of cleanliness and the type of music
that was played. 

[100] Mr. Stopps’ experience at the Centre was dated. He had not
returned to the Centre and was not aware that it had updated its
equipment and that it now had personal trainers. He took no steps
to view its facilities, knowing that it was a co-ed facility,
before he went to Just Ladies. He was not refused a membership at
the Centre. Mr. Stopps did not pursue a membership anywhere else.


[101] I find that Mr. Stopps had no intention of pursuing a
fitness program or joining a fitness facility. As a result, he
could not have suffered any adverse consequences as a result of
being denied a membership at Just Ladies. 

[102] The second reason that Mr. Stopps said he wanted to be a
member of Just Ladies was because it was the closest facility to
his home. He wanted to be able to walk to the gym as he saw this
as part of his workout. 

[103] The evidence was undisputed that Just Ladies was not the
closest facility to Mr. Stopps’ residence. Fitness World is
actually closer to where Mr. Stopps resides. Mr. Stopps provided
no explanation as to why he did not go to Fitness World to see
about a membership before going to, or after he had been denied a
membership at, Just Ladies. If he wanted a facility close to his
home, Fitness World was the closest facility. He should have
investigated this option. He did not. 

[104] Mr. Stopps said that he believed that Fitness World was
also a women-only facility and that is why he did not apply for a
membership there after he had gone to Just Ladies. He based his
belief on a banner that he said was hanging outside Fitness
World. It is clear that Fitness World is not a women-only
facility; Mr. Lawson testified that it never has been. It
provides a separate workout area for women but it is a co-ed
facility. Mr. Stopps made no inquiries at Fitness World as to its
membership despite it being the closest facility to his home. He
has not been there since he filed this complaint. 

[105] Based on this evidence, I find that attending a facility
that was close to his home was not the reason Mr. Stopps went to
Just Ladies. 

[106] The final reason that Mr. Stopps gave for wanting to join
Just Ladies was that it offered a ten-day free membership which
would allow him to try out the facility to see if it met his
fitness needs. The value of the ten-day membership was
approximately $30. Mr. Stopps was clear that he could afford to
join a gym and assume the annual cost of doing so. He was
gainfully employed and there was no suggestion that he was unable
to meet his ongoing expenses. 

[107] Mr. Stopps seems to suggest that being denied a ten-day
membership results in an adverse consequence to him. I disagree.
If there was any adverse consequence, the consequence was minor;
it only resulted in Mr. Stopps being denied a ten-day membership.
In the circumstances of this case, and in the context of what Mr.
Stopps was seeking, namely a membership in a fitness facility, he
had other options available to him, which he did not pursue. 

[108] I am unable to conclude that Mr. Stopps experienced an
adverse effect in the denial of the membership at Just Ladies
such that the protection of the Code should be triggered.
Although ultimately he was denied a membership, seen in context,
the denial did not adversely affect Mr. Stopps in his ability to
participate in a fitness program close to his home at a fee that
he could afford. Mr. Stopps was, and is still, able to
participate in the social and cultural life of British Columbia.
He is able to meet his goal of being fit and join any number of
fitness facilities that would serve to meet his particular needs.
From a purposive perspective, the Code’s protections are not
engaged in the facts of this case. 

[109] In Law, the Court said that in determining whether there
has been adverse treatment, the impact on the person’s human
dignity must be viewed both subjectively and objectively. Mr.
Stopps argues that the evidence of Just Ladies suggests that,
because he is a man, he may pose a threat to women at the
facility. He says that this view serves to perpetuate stereotypes
that men pose such a threat to women and that they always engage
in the male gaze. He argued that this promotes the view that he
is less worthy of respect. He argues that many men are
disadvantaged in society. 

[110] Mr. Stopps provided no evidence, except his own, to refute
Just Ladies’ expert evidence and the prevailing jurisprudence,
that women are more disadvantaged in society vis-Â -vis men. For
example, in Keyes, the complainant alleged that he was
discriminated against by Pandora Publishing Association
(“Pandora”) when it refused to publish his letter to the editor.
Pandora had a women-only publishing policy. The Board of Inquiry
dismissed Mr. Keyes’ complaint. In its discussions regarding
whether discrimination had occurred, the Board of Inquiry said
(at §27, 28 and 61): 

The evidence which I heard at the hearing satisfied me that
historically, and to the present day, women as a group in our
society have suffered substantially [sic] inequality and
disadvantages in all aspects of public and private life. I am
also satisfied that this inequality continues to the present day
to a sufficient degree, that it is reasonable that women’s groups
may decide to form women-only organizations, such as Pandora, for
the promotion of women’s equality and that such organizations may
advantage women over men. 

... As I am satisfied that Pandora could reasonably decide on a
single-sex policy advantaging women over men with a view to
promoting women’s equality, and as I am further satisfied that
the purposes and aims of Pandora in promoting women’s equality
would be substantially disrupted by permitting men to participate
in Pandora, even to the limited extent of writing letters to the
editor, I cannot find that this alleged single facet
discrimination complained of by Mr. Keyes would be sufficient to
interfere with Pandora’s rights. 

In addition to the evidence that women are generally
disadvantaged and unequal in society and are discriminated
against on the basis of sex, I also heard evidence that women are
disadvantaged in discourse (written or oral) with men generally.
I was told that men tend to dominate such discourse and to direct
such discourse and that women tend to be disadvantaged in such
circumstances. 

[111] In this case, the evidence substantiated that women sought
out a women’s only facility because of issues arising from their
disadvantage in society, namely to be free from the male gaze and
feelings of poor body image. This evidence was not seriously
challenged by Mr. Stopps. Because some women may prefer co-ed
facilities does not undermine the need for some women to have the
option of working out in a women-only facility, a fact that is
supported by the increasing number of women who seek out
women-only fitness facilities. In the circumstances of this case,
treating Mr. Stopps the same as these women would actually result
in an adverse consequence for these women. Seen in this context,
such a result would not further the purposes of the Code. 

[112] I am unable to find, based on this evidence, that Mr.
Stopps’ human dignity, viewed subjectively, was adversely
affected by the denial of a membership at Just Ladies. Mr. Stopps
did not present or appear to have been adversely affected by the
denial of the membership. He asked to be denied a membership, he
pursued this complaint, discussed it with the media and, despite
his stated desire to be more physically fit, he did nothing else.
Had he wanted to pursue a fitness program, he would have taken
further steps to do so. He did not. 

[113] Viewed objectively, I am unable to find that Mr. Stopps’
human dignity was adversely affected by the policy of Just
Ladies. He had available to him a number of other options, but he
pursued none of these. He gave no credible reason why he failed
to so in the face of the reasons he went to Just Ladies
initially. In my view, Mr. Stopps went to Just Ladies seeking a
service that he knew would be denied; he fully intended to pursue
a human right complaint. The human rights system is not to be
used to make a point; it is to be used to address discrimination
and to further the purposes of the Code so that all can
participate in the activities of British Columbia without fear of
adverse treatment based on a prohibited ground of discrimination.
Allowing Mr. Stopps’ complaint would undermine the purposes of
the Code and minimize the real and daily discrimination faced by
many in our society, including men. 

[114] Further, in most, if not all, human rights complaints,
complainants file complaints because they have faced
discrimination contrary to the Code and have been denied a
service that they truly believed they were entitled to. In this
case, Mr. Stopps had many options available to him, none of which
he acted upon. He did not truly want to belong to a fitness
facility. He wanted to make a point. I accept that there are
times when a person may file a complaint challenging a policy or
practice that, on its face, appears not to be discriminatory, and
in doing so expose discrimination. However, I am unable to
conclude that this is one of those cases. Mr. Stopps pursued this
complaint for reasons unrelated to his human rights. 

[115] I have no difficulty in finding that Mr. Stopps has failed
to establish that his human dignity was adversely affected by the
decision of Just Ladies, viewed subjectively or objectively. I do
so regardless of whether I apply the traditional human rights
analysis or the Law analysis. 

[116] Mr. Stopps suggested that Ms. Davis treated him in a
discriminatory manner; I find that she did not. She was presented
with a difficult situation and dealt with it the best she could.
I accept her evidence that Mr. Stopps continually tried to have
her deny him a membership, wanted her to use specific language
and raised human rights issues with her. He was also, by his own
admission, anxious and raising his voice. In these circumstances,
I accept that she treated him with respect, tried to de-escalate
the situation, and followed Just Ladies’ procedures. It is
unclear to me why someone from Just Ladies did not contact Mr.
Stopps following his visit there as Ms. Davis said they would. As
a result, Mr. Stopps called several times on the Monday. Although
I accept that Mr. Stopps would have been upset by this treatment,
I do not find that it suggests that Ms. Davis discriminated
against him contrary to the Code. 

[117] In summary, I find that Mr. Stopps was not adversely
treated when he was denied a service by Just Ladies nor was he
adversely treated in his interactions with Just Ladies and its
staff. For these reasons, I find that Mr. Stopps has failed to
establish a prima facie case of discrimination, and his complaint
is dismissed. 

[118] The parties spent considerable time dealing with the issues
of Just Ladies’ justification for denying Mr. Stopps membership
in its facility and the defence of “public decency.” Just Ladies
also argued that Mr. Stopps had filed this complaint in bad faith
and for improper motives. Although not necessary, I propose to
address those arguments. 

Bona Fide Justification 

[119] Just Ladies argued that it was justified in denying Mr.
Stopps a membership in its facility. In so doing, it relies on
the three-part test set out in British Columbia (Public Service
Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3
[35 C.H.R.R. D/257] (“Meiorin”) and applied in British Columbia
(Superintendent of Motor Vehicles) v. British Columbia (Council
of Human Rights), [1999] 3 S.C.R. 868 [36 C.H.R.R. D/129]
(“Grismer”). In those cases, the Supreme Court of Canada held
that to justify conduct, which might otherwise be discriminatory
under §8 of the Code, a respondent must establish the following
(Grismer at §20): 

(i) that they adopted a standard for a purpose or goal that is
rationally connected to the function being performed; 

(ii) that they adopted a standard in good faith, in the belief
that it is necessary for the fulfillment of the purpose or goal;
and 

(iii) that the standard they adopted is reasonably necessary to
accomplish their purpose or goal, in the sense that they cannot
accommodate persons with the characteristics of the claimant
without incurring undue hardship. 

The Standard and Good Faith 

[120] In many cases in which the Meiorin and Grismer analysis is
applied, the first two elements of the test are not
controversial. This is such a case. Just Ladies operates a
women-only facility; to maintain it as such, it adopted a rule
that excludes men from membership. I have no difficulty finding
that the rule is rationally connected to the function being
performed, and that Just Ladies adopted this rule in good faith. 

Could Just Ladies accommodate Mr. Stopps to the point of undue
hardship? 

[121] The real issue is whether Just Ladies could have
accommodated Mr. Stopps to the point of undue hardship by
allowing him access to its women-only facility. In my view, and
for the following reasons, they could not have accommodated him. 

[122] There is no question that there are many co-ed facilities
and that those facilities are able to accommodate both men and
women. Men and women choose to go to such facilities and are
provided with the necessary areas to ensure that their privacy
needs are met, such as having separate washrooms and changing
facilities. However, the fact that those co-ed facilities exist
does not answer the question of whether, in the services provided
by Just Ladies, it could accommodate men and, in particular Mr.
Stopps. 

[123] Dr. Creese provided expert evidence in the area of gender
and social inequality. Her evidence was not seriously challenged
by Mr. Stopps. As indicated above, Dr. Creese said that many
women have problematic relationships with their own bodies and a
resulting poor self-image; men as a group do not have similar
issues. As a result, women will often curtail their physical
activities in public spaces and seek out female-only facilities
where they will not feel judged. They seek spaces away from the
male gaze and where they feel comfortable improving their fitness
level; they can wear tight-fitting workout clothing and engage in
exercises that may place them in a vulnerable position. For these
reasons, and others, women may feel uncomfortable in a
mixed-gender environment and avoid working out altogether or
avoid certain activities where they may feel vulnerable. Some
women who have experienced male-violence will be more comfortable
working out away from men; some women may have religious or
cultural reasons for not working out in a co-ed facility. 

[124] The Survey supports Dr. Creese’s findings. Although the
Survey cannot be considered an “empirical study,” it does reflect
the opinions and views of the women who completed those forms.
Had there been no other evidence, I would have given the Survey
little weight. However, in the context of the other evidence
provided, including the evidence of Ms. Chang and Ms. Ebrahim, it
serves to confirm that evidence and I have therefore considered
the Survey results in this decision. 

[125] Many of the women said that they joined Just Ladies Fitness
to be away from the male gaze although they did not specifically
use those words. They sought out a safe place in which to engage
in physical activities and a significant number said that they
would be very uncomfortable if men belonged to the facility. As
Ms. Ebrahim said, she would not work out with men. 

[126] Not all women experience these concerns and many women
choose to work out in co-ed facilities. However, as was clearly
said in Keyes, this is not determinative of the issue. In Keyes,
the Board of Inquiry said (at §109 and 110): 

... I do not think, however, that I need find that it is
absolutely necessary for all women’s newspapers to have a policy
of excluding all material which is not written by women in order
for Pandora to justify its letter to the editor policy. 

I can well accept that reasonable women may take different views
as to whether or not a women’s newspaper should limit itself to
letters and articles written by women only. I can also accept
that women might reasonably conclude that such a policy is
appropriate to one women’s publication having regard to the
circumstances and objectives of that publication and that is not
appropriate to another having regard to its circumstances and
objectives. 

[127] Had Mr. Stopps been allowed to join Just Ladies, the goal
of providing a comfortable space to some women that is free from
the male gaze would be completely undermined. Although Mr. Stopps
may not be a person who would engage in such activity, the
evidence was clear that men do engage in this activity and many
of the women who join an all-women facility do so to avoid the
possibility of this problem. Allowing one man to join would
necessarily mean that Just Ladies and, all the other women-only
facilities, would have to provide their services to men, thus
eliminating a space where women could engage in physical activity
apart from men. 

[128] Just Ladies referred to a number of cases in other
jurisdictions that have dealt with issues similar to those raised
in this complaint. Although the focus in those decisions was on
the issue of “public decency,” these cases illustrate why the
maintenance of a women-only facility is reasonably justified
under the Code. 

[129] In Livingwell Inc. v. Pennsylvania Human Relations Comm.,
147 Pa. Commw. 116, the Pennsylvania Human Relations Commission
found that an all-women health club facility, owned by
Livingwell, discriminated on the basis of sex when it refused to
allow men membership. In reversing the Commission’s decision, the
Commonwealth Court of Pennsylvania found that a defence of
“customer gender privacy right” was available to Livingwell. In
order to avail itself of this defence, Livingwell had to show
that admitting men would undermine its business operation, that a
protected privacy right existed for women even though intimate
body parts were not exposed and that no reasonable alternative
existed to protect these privacy interests while accommodating
male members. 

[130] In considering what was needed to establish a privacy
interest, the Court said that it can arise “where one has a
reasonable basis to be protected against embarrassment or suffer
a loss of dignity because of the activity taking place” (at p.
7). The uncontraverted evidence of the female members of the club
was that the primary reason that they were members was because
the facility was women-only. If men were allowed, these women
would not maintain their memberships, evidence confirmed by the
president of Livingwell. Similar evidence was presented in this
case. 

[131] The Commission argued that these women had no reasonable
basis to feel embarrassed because society, as a whole, does not
find it objectionable to exercise with the opposite sex. In
answering this, the Court said (at p. 7): 

... Privacy interests are not determined by the lowest common
denominator of modesty that society considers appropriate. What
is determinative is whether a reasonable person would find that
person’s claimed privacy interest legitimate and sincere, even
though not commonly held. Nothing in the record supports, nor
does the Commission seriously challenge that these women do not
sincerely hold these beliefs or that a reasonable person would
not find these beliefs legitimate. 

Even if a privacy right exists, whether that privacy right is
worthy of protection is determined by balancing that interest
against any harm caused to the excluded men. The only harm the
Commission advances is that the men will not be allowed to
exercise at certain Livingwell locations. However, the Commission
admits that there are other facilities just as convenient where
men can exercise in a coed environment. Unlike gender
discrimination that would result in the non-hiring of males, or
where an exercise establishment has other facilities where
business or “networking” is conducted, no harm exists to any male
by being excluded from Livingwell’s facilities. 

[132] In considering the Court’s statement in Livingwell, it is
clear that allowing men to belong to Just Ladies would undermine
the women’s ability to work out in a place free from the presence
of men. The hardship is absolute; Mr. Stopps cannot be
accommodated without undermining the entire premise of Just
Ladies Fitness. Allowing one man to join would necessarily mean
that any man could join. In this case, as in Livingwell, no harm
results to Mr. Stopps because he has any number of co-ed
facilities to choose from; in fact, one that is closer to his
home than Just Ladies. 

[133] In Foster v. Back Bay Spas, Inc. (1997), Mass. Super. LEXIS
194, the Superior Court of Massachusetts came to a different
conclusion. In reaching its conclusion, the Court found that,
since no private information was being disclosed and no personal
facts were being revealed, the privacy right was not triggered.
The Court said that exercising while clothed was not a protected
right. After this decision was released, the State of
Massachusetts quickly passed legislation permitting the operation
of women-only exercise facilities provided that the facility did
not receive government funding. 

[134] In Australia, the Victorian Civil and Administrative
Tribunal, Human Rights Division (“VCAT”) has issued exemptions
under the Equal Opportunity Act 1995, §83 (“EOA”) to women-only
health clubs. In considering these applications, the VCAT applied
the factors set out [in] Stevenson v. Fernwood Fitness Centres
(1996) E.O.C. 92-782, which included considering the objectives
of the EOA, whether the exemption was consistent with other
exemptions in the statute and whether there was a broad public
interest justifying the exemption. In granting an exemption to
Fernwood Womens Health Clubs Pty. Ltd., the VCAT said (at §12 and
13): 

Here it seems to me that the exemption is consistent with the
underlying scheme of some of the exception provisions I have just
mentioned. It does promote that objective of the Act that looks
at the recognition of everyone’s right to equality of
opportunity. What Fernwood is attempting to do is to put those
women who would not otherwise exercise, and would not attend a
mixed men and women gym facility, into the same position as if
they had been able to attend such a facility. It is also
providing special classes to give women both knowledge and
perhaps experience to enable them to cope with various physical
conditions. 

There seems to me, in these circumstances, to be a clear public
interest in the granting of the exemption... 

[135] In a similar application filed by Beach House Fitness
Centre Pty Ltd. under the EOA, the VCAT granted the exemption,
although Beach House would have male instructors, and in so doing
the VCAT said (at §5): 

The establishment of a gym and fitness centre, together with the
proposed professional classes on women’s health and fitness
issues, available to women only, appears to the Tribunal both to
promote the objectives of the Act and to be consistent with the
spirit of the scheme of the Act because the initiative addresses
a disadvantage that women perceive in not otherwise being able to
exercise in safe surroundings and in not being able to do so free
from what is regarded as the intimidating presence of men.
Pregnant women, older women and those with what they would regard
as unsatisfactory body shapes would be able to exercise in an
environment that accepted them uncritically. 

Meeting the legitimate and demonstrated needs of an important
sector of the community that has in the past suffered from a lack
of equality and that still has legitimate needs with regard to
safety and protection from intrusion or unnecessary exposure
would in the Tribunal’s opinion serve an overriding public
interest that would justify the conduct being taken out of
statutory prohibitions on discrimination... 

[136] Although in these cases the focus was on exempting the
facilities from the operation of the Equal Opportunity Act, which
is not the issue before me, these cases illustrate the factors
that might be considered in allowing men to join Just Ladies. The
issues of body image, special classes and the disadvantaged place
of women in society support the goal that offers a women-only
space for physical activity. 

[137] The Saskatchewan Human Rights Commission has granted an
exemption to Spa Lady which operates women-only facilities,
allowing it to advertise and hire only women. The exemption was
granted under §48 of The Saskatchewan Human Rights Code, S.S.
1979, c. S-24.1. In granting the exemption, it relied on §12(2)
that provides for an exemption to discrimination for the
maintenance of public decency, because there would be times when
women would be in various states of undress: Re Spa Lady (1980),
1 C.H.R.R. D/90 (Sask. H.R. Comm.). Although the Code allows for
exemptions, under §42 of the Code, as it relates to employment,
this is not the issue before me. Section 41 allows for
organizations to apply for exemptions; however, such exemptions
are not available to organizations that operate for-profit, such
as Just Ladies. 

[138] Similar exemptions have been granted in the health care
field to ensure that individuals, who request intimate care by
those of the same gender, receive that care: see S.E.I.U., Local
333 v. North Central Health Dist. Board (1995), 28 C.H.R.R. D/61
(Sask. H.R. Comm.); upheld on judicial review S.E.I.U., Local 333
v. North Central Health Dist. Board (1997), 28 C.H.R.R. D/67
(Sask. Q.B.). In S.E.I.U., Local 333, the Commission balanced the
prohibition against discrimination in employment with the right
of individuals to dignity and autonomy. In these cases, the
inherent dignity and bodily integrity of the residents in the
facility was considered and found to be a sufficient basis upon
which to grant the exemption. Although any exception must be
narrowly construed, as these cases illustrate, the right to be
free from discrimination in employment is not an absolute. The
same may be said for issues arising in the service context. 

[139] The Saskatchewan Human Rights Commission has also granted
exemptions to correctional facilities to allow them to maintain
gender preferences in hiring for public decency reasons. In these
cases, the issue arose because guards of one gender might be
present where an inmate of the opposite gender would be in
various states of undress or where skin searches might be
performed: Re Saskatchewan (Corrections Branch) (1980), 1
C.H.R.R. D/49 (Sask. H.R.Comm.); Saskatchewan Social Services,
Corrections Branch (1982), 3 C.H.R.R. D/1047 (Sask. H.R.Comm.);
Saskatchewan Social Services, Corrections Branch (1983), 4
C.H.R.R. D/1236 (Sask. H.R.Comm.). 

[140] In Stanley v. Royal Canadian Mounted Police (1987), 8
C.H.R.R. D/3799 (C.H.R.T.), the Tribunal found that having guards
of the same sex as the inmates serves to protect the privacy
interests of those inmates and constitutes a bona fide
occupational requirement (“BFOR”). In this case, the guards would
view the inmates in varying states of undress and using the
toilet facilities. In Stanley, the Tribunal said that a person’s
personal privacy is extremely important and is at the core of the
inherent dignity of the person. A same-sex policy that respected
this right was a justifiable BFOR (at §30164—99). 

[141] In Reynolds, Mr. Reynolds alleged that he was discriminated
against based on his sex when he was required to deal with more
violent patients than his female colleagues and he was not
allowed to bathe female patients while his female colleagues
could bathe male patients. The BC Council of Human Rights found a
prima facie case of discrimination; the only reason for the
different treatment experienced by Mr. Reynolds was his sex.
However, it found that the respondent had established a BFOR for
the differential treatment. The Council balanced the rights of
Mr. Reynolds against the right of the patients in the provision
of intimate personal care. In doing so, it relied on the findings
in McKale v. Lamont Auxiliary Hospital (1986), 8 C.H.R.R. D/3659
(Alta. Bd.Inq.), which addressed similar issues. In McKale, the
Board of Inquiry upheld the justification defence and said that
one aspect that can be considered in doing so was the patient’s
preference and the reasonableness of that preference within the
“conventional standards of public decency” (at §29026; aff’d
McKale v. Lamont Auxiliary Hospital (1987), 8 C.H.R.R. D/4038
(Alta. Q.B.)). 

[142] The opposite conclusion was reached in Kuczerpa v.
Kimberley and Dist. Home Support Service Society (1995), 24
C.H.R.R. D/60 (B.C.C.H.R.). In that case, the Council found that
the respondent had failed to provide compelling evidence to
support its claim that sex was a BFOR. In Rossi v. Prince George
School District No. 57 (1985), 7 C.H.R.R. D/3237 (B.C.C.H.R.),
again the Council found that the respondent had failed to provide
a reasonable basis for its decision not to consider Mr. Rossi’s
application for a girl’s physical education teacher. In both
these cases, the Council found that the lack of evidence was
determinative of the BFOR justification. In the case before me,
Just Ladies has provided significant evidence to support its
policy of excluding men from membership. 

[143] Although the object of Just Ladies is not only to address
the disadvantage of women, it does provide a safe space for women
to work out free from the male gaze and the domina[nt] presence
of men in the facility. It is not because they are in a state of
undress or using the washroom facility that causes the hardship,
but the resulting inability to be free from the presence of men
while engaged in activities where they may feel judged, harassed
and embarrassed. In this respect, Just Ladies provides a service
that addresses the disadvantage women experience in one facet of
their lives. It also serves to protect their privacy issues
within that context. In Keyes, the Board of Inquiry said that it
was appropriate that women have a safe space in which to express
their views and the service provided by Pandora served to remedy
the disadvantage experienced by them (at §112 and 113). In
conclusion the Board of Inquiry said (at §120): 

... I am satisfied that the denial of access by Pandora to men
does not cause material or substantial harm to men, particularly
in comparison to the benefit to women of having a women’s only
publication dealing with women’s equality issues from women’s
perspective and providing a safe place for a wide variety of
women to express such views. I am satisfied and I find that men
have adequate opportunity to express their views and opinions in
the mainstream media without entry into this women’s place. 

[144] I draw a similar conclusion here. Mr. Stopps has a variety
of workout facilities available to him. He does not need to
access Just Ladies to meet his own personal fitness goals.
However, allowing him membership in Just Ladies would undermine
the women-only concept of Just Ladies Fitness and the types of
services that it provides to women in space free from the male
gaze. The evidence was that the entire Just Ladies Fitness
organization had 40,000 members at the time of hearing; and that
during the time it has been in operation it has had 300,000
members. These numbers are not insignificant. If Mr. Stopps is
allowed membership, the hardship that will result would be that
these women would be denied the ability to work out in an
all-female space. This undermines the purpose of Just Ladies
Fitness in a real, not an abstract, sense. 

[145] Mr. Stopps suggested that very few men would seek to join
Just Ladies if he were allowed membership. However, he tendered
no evidence to support this assertion. In my view, once the
membership is open to one man, it is open to all men. The result
is that the entire concept of a women-only facility would be
undermined. 

[146] Mr. Lawson gave evidence that in at least one-half of the
leases, Just Ladies Fitness is prohibited from operating a co-ed
facility. Further, its Agreement says that it may change its
policies, programs or facilities provided that such changes do
not “materially affect” the services it provides. Most of the
women members join Just Ladies Fitness because it is an all-women
facility; changing this basic premise would necessarily affect
the membership and have a significant impact on the business
operations. Mr. Lawson said that, in the face of these
challenges, the only reasonable response would be to close his
business, including the Metrotown location. Given all these
factors, seen in combination, which were not seriously challenged
by Mr. Stopps, I find that it would cause Just Ladies undue
financial hardship for it to have to admit men to its facilities.


[147] Given that Mr. Stopps has a number of co-ed gyms to choose
from, including one closer to his home than Just Ladies, I can
find no basis upon which Just Ladies should be faced with
significant and irreversible damage to its business interests.
Further, the hardship to those women seeking a women-only
facility would be significant; given the impact of a decision
that would open Just Ladies to men, there would likely be no
women-only facilities available to them. 

[148] I note with interest that one of the reasons that Mr.
Stopps said he wanted to join Just Ladies was that he preferred
the atmosphere there and he would not be faced with working out
in a co-ed facility where there would be teenagers and “muscle
heads” present. If Mr. Stopps were successful in establishing
discrimination contrary to the Code in this case, the very
purpose for which he says he sought to belong to Just Ladies
would disappear. 

[149] For these reasons, I find that Just Ladies could not have
accommodated Mr. Stopps without incurring undue hardship. Had I
not dismissed Mr. Stopps’ complaint for failure to establish a
prima facie case, I would have done so at this point. 

[150] Mr. Stopps argued that if his complaint was dismissed, it
would open the door for others to discriminate on the basis of
sex, sexual orientation, race or religion. I am not persuaded by
this “flood-gates” argument. Each case is considered on its own
facts and within its own context. There may be some cases where
the exclusion of a person from an organization because of that
person’s sex, race or religion, or any other protected ground in
the Code constitutes discrimination, but that must be left to be
determined in the appropriate case. There is no basis, on the
evidence before me, to assume that in dismissing Mr. Stopps’
complaint, it will result in broad-based discrimination by a
variety of organizations. 

Section 8(2) of the Code and Public Decency 

[151] Section 8(2) of the Code provides a defence to
discrimination in the provision of a service customarily
available to the public if the discrimination relates to the
maintenance of public decency. The Code does not define the term
“public decency.” However, the law is clear that the statutory
defences set out in the Code are to be narrowly construed: Zurich
Insurance Co. v. Ontario (Human Rights Comm.), [1992] 2 S.C.R.
321 [16 C.H.R.R. D/255] at §18; Sheridan v. Sanctuary Investments
Ltd. (No. 3) (1999), 33 C.H.R.R. D/467 at §106 (B.C.H.R.T.). 

[152] In the cases referred to by Just Ladies, the focus was on
those individuals working within organizations who may view, or
assist, others of a different gender in varying states of undress
or while those individuals were engaged in private activities
such as using the washroom. In these cases, it was appropriate to
consider the defence of “public decency.” In my view, this case
does not raise those types of issues especially since co-ed
facilities exist side-by-side with women-only facilities without
difficulty. Just Ladies’ justification for its women-only policy
was multi-faceted and not based solely on the issue of “public
decency.” 

[153] Although I was not persuaded that Just Ladies has
established a defence of “public decency” under §8(2) of the
Code, I dealt with those arguments, and jurisprudence referred
to, above. 

Section 27(1)(e) of the Code 

[154] Section 27 of the Code provides in part, 

27(1) A member or panel may, at any time after a complaint is
filed and with or without a hearing, dismiss all or part of the
complaint if that member or panel determines that any of the
following apply: 

... 

(e) the complaint or that part of the complaint was filed for
improper motives or made in bad faith; 

[155] Just Ladies argued that Mr. Stopps filed this complaint in
bad faith and for improper motives. I[n] essence, it says that
Mr. Stopps filed this complaint after hearing about the marine
drive golf course case, and he has admitted in this hearing that
he filed the complaint to make a point. Mr. Stopps said that
men’s rights have been eroded over time and it was time for
someone to “push-back.” These arguments were similar arguments
that were made before the Tribunal in Stopps v. Just Ladies
Fitness (Metrotown) Ltd. (No. 2), 2005 BCHRT 359 [CHRR Doc.
05-453]. 

[156] Given my decision on the merits of the complaint, I do not
need to consider whether I should exercise my discretion to
dismiss the complaint under §27 of the Code. However, given that
the parties spoke to this issue, I make the following comments. 

[157] In Stopps (No. 2), Just Ladies filed an application