Novel issues raised by transgender human rights complaints

November 29, 2019 Devry Smith Frank LLP Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, 0

A recent human rights complaint against several salons in Vancouver, British Columbia sheds new light on the relationship between human rights law and persons who identify as transgender.

Discrimination against transgender persons

Jessica Yaniv, a transgender woman from British Columbia, has launched human rights complaints against several salons in Vancouver who refused to wax her on the basis that she had male genitalia.

While no ultimate decision has yet been released, the reasons of the British Columbia Human Rights Tribunal in Yaniv v. Various Waxing Salons, 2019 BCHRT 106 (CanLII) have raised some novel issues in human rights litigation.

The Tribunal has been critical of Yaniv particularly because of the manner in which she is pursuing her complaint. She has launched dozens of separate complaints against different salons. The Tribunal noted that this “opens a valid question about her motives in filing so many complaints.”

On the other hand, the Tribunal has not taken issue with the substance of the complaints. Instead, it has noted the issues raised by Yaniv are complex and require in-depth consideration. While waxing was characterized by the Tribunal as crucial “gender-affirming care for transgender women”, it was nonetheless considered to be “a very intimate service that is sometimes performed by women who are themselves vulnerable. JY’s complaints raise a novel issue around the rights and obligations of transgender women and service providers in these circumstances”.

Withdrawal of human rights complaints

The Tribunal also took issue with the fact that Yaniv withdrew many of the complaints she launched against various salons. In particular, Yaniv repeatedly withdrew her complaints once opposing counsel was retained.

While the Tribunal mentioned that withdrawing complaints is an acceptable practice, it also stated that it is not proper to do so where such a withdrawal would significantly prejudice other parties or the Tribunal “in a manner constituting improper conduct warranting the sanction of costs.”

The Tribunal continued by noting,

“I am now of the view, based on these new facts, that JY’s [Jessica Yaniv’s] pattern of filing such a high volume of complaints and then withdrawing in the face of opposition undermines the integrity of the Tribunal.”

The Tribunal concluded by reminding the parties it would “deliver its service in a way that is respectful and does not expose her [Yaniv] to further discrimination. However, she must also understand that respondents are entitled to defend themselves and expect that they will.”

What does this human rights complaint tell us?

Transgender discrimination complaints at Human Rights Tribunals will continue to be seriously considered. However, because transgender discrimination actions have the potential to raise many novel legal issues, it is difficult to predict how Tribunals will respond to the competing interests at stake in similar human rights cases. As a result, if you are planning on launching a transgender discrimination complaint, or are required to defend against one, retaining legal advice to guide you through the process is crucial.

This litigation also tells us that Tribunals and adjudicative bodies in general do not take legal actions lightly. If complaints or actions are launched repetitively and excessively, courts and certain tribunals have the power to enact punitive measures to deter such conduct, including but not limited to cost awards.

By Marty Rabinovitch

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Employment and labour lawyers at Devry Smith Frank LLP

Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .