MICHELLE MANN:
The final frontier?
CBC News Viewpoint | November 28, 2005 | More from Michelle Mann
Michelle Mann is a Toronto-based consultant and freelance writer, specializing in social justice, human rights and Aboriginal issues. A lawyer with many years of practice behind her, Michelle now dedicates herself to consulting on and writing about legal, political and policy issues, particularly those with social justice implications.
Move over same-sex rights. Now that the ultimate pinnacle of same-sex marriage has been scaled, it’s all about transgendered equality rights. The latest legal human rights frontier tackles discrimination against transgendered individuals and, in some cases, pits human rights titans against each other.
In a recently released Ontario human rights tribunal interim ruling, the panel found discrimination by the previous provincial Conservative government in cancelling funding for some transgender operations. The tribunal found that when that government delisted health-care funding for sex reassignment surgery in 1998, some transsexuals were insufficiently grandfathered.
Several individuals already making their way through the sex-reassignment program when the changes came into effect were left out in the cold for funding when they graduated to surgery.
What with gender identity disorder (a persistent and compulsive desire to become a member of the opposite sex), being a medically recognized disability, the tribunal had no problem finding that the claimants had been discriminated against on a prohibited ground, and suffered a disproportionate adverse impact in the provision of health-care services.
Accordingly, the tribunal ordered that the provincial government alleviate that undue burden, and pay for the sex-change surgery for three of those individuals, pending its final decision.
Rightly so. It would seem cruel that individuals already making their way through a program and determined to have sex-reassignment surgery would lose that access. Given that annual costs at last funding of the surgery were a pittance (approximately $120,000, according to gay rights group EGALE), what little the heartless government of the day may have saved by imposing this hardship could hardly be justified.
Ontario, which paid for sex-reassignment surgery from 1969 through to 1998, is now the only province that doesn't cover this medically necessary procedure.
A Charter of Rights and Freedoms challenger, Michelle Josef, proposes to remedy this lapse in judgment, alleging discrimination based on gender identity in the government’s current refusal to pay. Initially instigated in 1999, the case is currently making its way through the courts, alleging the violation of the Section 15 equality rights of transsexuals.
Keeping in mind that the predominant underlying value of Section 15 is the preservation of human dignity, one might think this case a slam-dunk.
Yet courts are traditionally loath to order government spending, viewing matters of the public purse as a policy issue better left to Parliament and voters. And, of course, there is keen competition for already overextended health and social funding.
One may recall equality-based challenges to the denial of provincial autism treatment funding in both British Columbia and Ontario. The B.C. challengers ultimately lost their quest at the Supreme Court of Canada, while the Ontario challenge continues to wend its way through the court system.
Regardless, if the tribunal’s decision is any indication, things are not looking up for Ms. Josef, given the majority finding that there was no discrimination against those not enrolled in the sex reassignment program prior to funding being denied.
In other words, the delisting in itself was not considered discriminatory.
Many in the human rights legal community have been on tenterhooks awaiting a decision in the first transgender discrimination complaint to be decided by an appeal court. It was heard back in April, and the British Columbia Court of Appeal is taking its time in fashioning a judgment, surely cognizant of the likelihood of an appeal to the Supreme Court of Canada.
In this case Kimberly Nixon, a trans-woman, made a complaint of discrimination against a rape crisis clinic that would not train her or allow her to act as counsellor. While organizations dealing with woman abuse often have women-only hiring policies, it is this exclusion of trans-women that has many advocates up in arms.
A clash of the human rights titans so to speak; where the rubber hits the road.
Is the possibility that some “clients” may be uncomfortable with trans-people a justifiable reason for employers to discriminate? In most contexts, I would say not.
However, the terminology of “clients” obfuscates that we are dealing with rape victims in this case; women at their most vulnerable, unlikely to even articulate their discomfort with any given counsellor.
I think the interests of these “clients” have to come first, with the clinic acting pre- emptively to ensure that these women are not put in a potentially alienating or exacerbating situation.
The clinic has also been much criticized for its audacity in determining who is a “woman” for its purposes and excluding trans-women from that definition. Yet, in the context of a rape crisis clinic, lived experience as a woman has to count. Most women instinctively know this.
And as anyone who has ever worked with these organizations also knows, resources are tight. Tying up a rape crisis clinic in years of expensive and time-consuming litigation shows little regard for the needs of those very “clients” one so wanted to serve.
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