The right to say no - The Orca
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The right to say no

Suzanne Anton
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Former Attorney-General Suzanne Anton on a BC Human Rights Tribunal case attracting national and international attention.

Should a woman providing Brazilian waxing be obliged to provide the service to a person with male genitals? Should a woman providing waxing services go into a home she doesn’t wish to enter?

The answer to both questions is clearly “No.” No woman should be obliged to handle male genitals or go into a home against her will.

So why is the issue in front of the BC Human Rights Tribunal (HRT)? The HRT is not required to take every case submitted to it. In my view, this is one they could have turned down, rather than forcing the respondents to answer the complaints.

A little background: under the previous BC Liberal government, there was intense political interest in adding gender identity and expression to the BC Human Rights Code. As Attorney-General at the time, it was my file.

Adding gender identity and expression was not technically necessary, as those protections were already taken to be present under the more general language then in the Code. The Canadian Charter of Rights, for example, does not list sexual or gender identity; it simply says a person is protected against discrimination on the basis of sex. It’s a short description, applied broadly.

However, some advocates – trans advocates in particular – believed that adding the explicit language of “gender identity or expression” to the Human Rights Code would be helpful to ensuring broad understanding of those rights. I agreed, and was happy to present the amendments to the Legislature, where they were unanimously supported.

The Code now says in section 8 (here I am summarizing) that a person must not, without a bona fide and reasonable justification, deny a service to a person based on gender identity and expression. It adds, in section 8(2), that it is not discrimination on the basis of sex if the discrimination relates to the maintenance of public decency.

There are limits to the protections the Code offers. As an example of limits to rights, the tenancy section of the Code, section 10, contains all kinds of exemptions relating to tenancies in people’s homes or apartments; no one is obliged to rent a room in their home to someone they don’t want. That section is not directly applicable to provision of services, but it does make it clear that a person’s home is in fact their castle. They don’t have to let anyone in if they don’t want to.

The HRT is hearing a group of three cases brought by the complainant JY against women who provide waxing services said to have refused services to JY, who they believed to be male or had male genitalia. JY has filed numerous other cases, approximately 14, making similar complaints.

To me, the three cases are as clear a demonstration of the Code’s limits as you can get. No woman should have to touch male genitals when she doesn’t want to. No woman should have to go into a home, or allow someone into theirs, if she does not feel comfortable.

Of the three cases, one is a woman who works out of her home with small children present. She is said to have refused Brazilian waxing services to the complainant. The second is a Sikh woman who refused to go to JY’s home to provide leg and arm waxing services, and stopped her business after her dealings with the complainant. The third declined to provide Brazilian waxing to a person with male genitals.

The hearings, it would seem, have been difficult. Clearly the respondents have suffered greatly. These are not women with a lot of power; some are immigrants with limited English. Their families must be horrified. You can imagine their distress – they were only trying to supplement their respective family incomes, and now find themselves in front of the Human Rights Tribunal.

The HRT has said why it took the cases: “JY’s complaints raise a novel issue around the rights and obligations of transgender women and service providers in these circumstances. There is a public interest in having this issue resolved.” (JY v Various Waxing Salons, 2019 BCHRT106).

To me, there’s a straightforward pair of answers to these cases. No one – and in particular, no woman – who provides Brazilian waxing services to women, can be compelled to provide waxing services to a person with male genitals. And no woman can be compelled to go into a home which she does not want to enter.

The HRT is sincere in its wish to get rights right. But as noted above, they can refuse cases. These are cases where they might have chosen not to put the women service-providers into such a stressful and difficult position.

They could have just said No.

They will render their decision in due course.

Suzanne Anton QC is a former Minister of Justice and Attorney General of British Columbia and a former Vancouver City Councillor

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