Can’t Touch This: Trinity Western, Kimberley Nixon, and Human Rights Exemptions
If they have little else in common, Christian fundamentalists and radical feminists share a history of using group exemptions to human rights laws to justify discrimination against LGBT communities.
As Trinity Western University (TWU) comes before the Supreme Court of Canada yet again, we have an opportunity to reflect on the place of exemptions to human rights laws in Canadian society. TWU’s case challenges a decision refusing the university’s law school accreditation on the grounds that its Community Covenant, which prohibits same-sex relationships, is discriminatory against queer people. What lies beneath the challenge is the presumptive validity of the covenant. Why is it legal for a university to ban same-sex relationships in its student body?
If an educational or religious 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 common religion, that organization or corporation 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.¹
This is the provision that enables TWU’s covenant under British Columbia law. In essence, it allows membership discrimination by not-for-profit organisations.
The provision was used by the British Columbia Court of Appeal to validate the Vancouver Rape Relief Society’s (VRRS) discriminatory exclusion of Kimberley Nixon from a volunteer training program.² Kimberley Nixon is a trans woman who had registered to train to be a peer counsellor for women victims of male violence. She had previously experienced physical and emotional abuse at the hands of a partner and wanted to provide the same relief services that she had been provided at the time. However, she was excluded from the program after being identified as trans by the staff. Nixon brought a human rights complaint forward on the grounds of sex-based discrimination, arguing that she had been excluded because she is trans.
The Human Rights Tribunal upheld her complaint and awarded her $7,500 in damages. The decision was appealed to the Superior Court — although the Superior Court is usually the court of first instance, they serve on appeal with regards to decisions by administrative bodies such as the Human Rights Tribunal, because those are considered administrative acts rather than court decisions. The Superior Court judge found against Kimberley Nixon, concluding that there was no discrimination.
The decision was appealed again, and the Court of Appeal decided that while there was discrimination, a specific exemption in the Human Rights Code of British Columbia prevented the court from finding VRRS liable. The Supreme Court of Canada declined to consider a further appeal, leaving the Court of Appeal’s decision undisturbed.
According to the reasons of the Court of Appeal, “the behaviour of the Society meets the test of ‘discrimination’ under the Human Rights Code, but it is exempted by s. 41.”³
The exemption under section 41 differs from the more common justification for discrimination, namely the bona fide requirement test. In Quebec, both the bona fide test and the group exception are rolled into one:
A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.⁴
The Quebec provision features two separate exemptions. One for bona fide occupational requirements and one for non-profit requirements. This is indeed how it was interpreted by the Supreme Court of Canada in Brossard v. Quebec.⁵ The Court established that the term “justified” in the provision requires objective justification, bringing the second exemption into line with the bona fide occupational requirement test of the first exemption.⁶ Although the latter exception is set out as a group exclusion, I would argue that it is closer to being a bona fide requirement test.
The core issue can therefore be set out as follows: should human rights laws contain provisions that exclude non-profit organisations from its application without objective justification? I would argue that they should not. To allow such exemptions is anachronistic and contrary to the universal reach of human rights.
As a party to the International Covenant on Civil and Political Rights (ICCPR), Canada has the moral and legal duty to “promote universal respect for, and observance of, human rights and freedoms.”⁷ Article 26 of the ICCPR provides that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination.” This right is not subject to any explicit limitation. Conversely, the right of freedom of association is subject to restrictions “prescribed by law and which are necessary in a democratic society in the interests of […] the protection of the rights and freedoms of others.”⁸ Is section 41 of the British Columbia Human Rights Code contrary to Canada’s international duties and Charter commitments?
Constitutional or not, s. 41 is deeply anachronistic. Human rights law is supposed to send a message of inclusion, not one of exclusion. By allowing for discrimination in the absence of objective justification — that is, without demonstrating that the distinction is reasonably necessary given the nature and purpose of the institution — group exclusions fail to meet the already-insufficient standards of negative human rights.
Despite the anti-feminist character of such exclusions, the provision was defended by a number of feminists in the context of the Nixon decision. Christine Boyle, co-counsel on the case, defended the Court of Appeal’s decision in an article published by the Canadian Journal of Women and the Law.⁹
Without elaborating on Boyle’s views on trans women — which can perhaps be best characterised as glacial indifference — her defence boils down to a belief that group exemptions are necessary and that restrictions are undesirable: group self-identification must be protected, and there can be no effective constraint on those rules. Ironically, her defence protects all sorts of chauvinistic men-only groups from human rights scrutiny, further entrenching the subjugation of women in society. While discrimination in employment and services is banned in most spheres, the chauvinism of gentlemen’s clubs and male-only honour societies is reified.
Boyle does not elaborate on the undesirability of restrictions on group exemptions. Rather, she seems to ground her acceptance of unrestricted exemptions on the presumptive desirability of excluding trans women. Restrictions to group exemptions shouldn’t exist because they would force women-only groups to include trans women:
Denying non-transsexual women the right to self-identify so as to organize and act collectively would be discrimination in itself — that is one of the things about rights: everybody has them. Thus, unless I can propose a constitutional means of doing otherwise, I fear that I have to accept the existence of men’s groups, even those I consider anti-feminist, if I wish to defend women’s spaces.¹⁰
The circularity of her argument fails to cogently discredit the position that objective justification ought to be required. Yet, this requirement is of intuitive appeal. A club dedicated to preserving Yukon history while excluding women from participation such as the Yukon Order of Pioneers appears to be morally repugnant in ways that the Victoria Men’s Center isn’t when it excludes women to foster support and companionship among people of similar concerns and experiences. Men’s groups can even appear to be an essential tool of feminist organising, as shown by groups such as the National Organisation for Men Against Sexism and the growing field of masculinity studies.
Positions like Christine Boyle’s are common in the feminist movement. Michelle Landsberg, for example, compares Kimberley Nixon’s desire for inclusion with sexual assault:
[W]oman-centred services are besieged with enemies enough in this backlash era. What a twisted irony it is that the latest and perhaps fatal blow should be inflicted by someone who wants to be a woman — but doesn’t hesitate to inflict potential ruin on a woman’s service that tried to say ‘no’ to her unwanted advances.¹¹
Those of us who see through the unprincipled exclusion of Kimberley Nixon will likely fall on the side of Lori Chambers who held that “[u]ltimately, section 41 is built upon the very contingent foundations that queer theorists and critical gender theorists question.”¹²
I turn the question to the readers. Is there a space in Canada, in 2018, for group exemptions to human rights laws? Is there a reason to allow groups to distinguish, exclude, and prefer people even when those choices are not objectively justified by the group’s nature and purpose?
We shouldn’t let ourselves be distracted by the unnecessary confrontation between Trinity Western University, the Law Society of Ontario, and the Law Society of British Columbia. The real question is not whether accreditation can be withheld. The real question is whether TWU’s covenant should be allowed to exist.¹³ And the answer is: no.
This article was originally published in Contours, vol. 6. The entire volume, as well as previous ones, may be read online.
¹ Human Rights Code, RSBC 1996, c 210, s 41. The quote is modified and omits other grounds of discrimination as well as other types of organisations for ease of reading.
² Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601.
³ Nixon, supra note 2 at para 9.
⁴ Charter of Human Rights and Freedoms, CQLR c C-12, s 20.
⁵ Brossard (Town) v. Quebec (Commission des droits de la personne),  2 SCR 279.
⁶ Compare Brossard, supra note 5 at para. 67 and at para. 138.
⁷ International Covenant on Civil and Political Rights, 19 December 1966
⁸ ICCPR, supra note 7 at art 22(2).
⁹ Christine Boyle, “A Human Right to Group Self-Identification? Reflections on Nixon v. Vancouver Rape Relief”, (2011) 23 Can. J. Women & L. 488.
¹⁰ Boyle, supra note 9 at 517.
¹¹ Cited in Lori Chambers, “Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon”, (2007) 19 Can. J. Women & L. 305 at 325.
¹² Chambers, supra note 11 at 329.
¹³ A further question would be the impact of Caldwell et al. v. Stuart et al.,  2 SCR 603 on objective justification and to which extent it was modified by Brossard, supra note 5. I think there is room to argue that Caldwell’s conclusions as to whether objective justification was established in the given case were mistaken. However, this discussion is beyond the scope of the present article and would not impact the position taken here with regards to TWU insofar as Caldwell involved employment and the role of teachers as models and religious educators, whereas TWU regards students.