Morgane Oger

I was there… I shouldn’t have needed to be.

The talk sounded innocuous enough: “Gender Identity and Women’s Rights”. In reality, it was anything but.

All five speakers represented degrees of the same narrow view that trans women are not women but men. They spent entire evening stating that transgender women should not be treated like other women because we are, in fact, men and should be treated as such – or at least not as women.

Thankfully, it takes a serious act to invoke limits on speech. Whether VPD feel that lakeman and Murphy’s statements are enough to recommend a charge to the Crown remains to be seen.

Offensive talks are allowed in Vancouver and this event did not result in a disturbance other than a protest rally beforehand and strong words at the event itself between individuals. It did however include in my highly subjective eyes a number of statements that may be considered to incite hatred against an identifiable group: transgender women.

This is the test under sections 319 (1)(a) and
319 (1)(b) and it is now up to the Vancouver Police Department to decide whether to recommend charge. At this stage it seems unlikely they will do so.

Persons interested in learning more about the last time a criminal conviction for inciting hatred was handed down in British Columbia will find a CBC article covering the Topham criminal case here and the relevant rulings here. 

In the BC civil code, publishing hatred falls under section 7 of the BC Human Rights Code.

Because the Vancouver Public Library and the City of Vancouver knew the event was planned and had been warned of the content that was planned, I hold them responsible for knowingly taking part in Feminist Current and Meghan Murphy’s publishing an incitement to discriminate to the internet.

Meghan Murphy’ speech was framed with a preamble offering her definition of terms for her talk. Murphy defined men as adult human biological males and women as adult human biological females.

It may be Murphy’s opinion that transgender women are men. We all agree it is anyone’s right to believe this. However in BC Trans women are women and it is a libellous statement to claim otherwise and a a human rights code violation to act on this belief.

The legal precedent in is clear.

Trans women have been recognized as women who are entitled to access spaces normally made available to women since the 1999 Sheridan, Mamela, and Ferris cases in BC.

These three cases found that :

1. Discrimination against a Trans constitutes discrimination because of sex,
2. A person must not, without a bona fide and reasonable justification, deny to a Trans person any accommodation, service or facility customarily available to women,
3. A person must not, without a bona fide and reasonable justification, discriminate against a Trans person regarding any accommodation, service or facility customarily available to women,
4.  Trans women can not be denied use of the spaces set aside for women.

Meghan Murphy did not go into detail about what biological females are in her eyes, so it is hard to tell exactly what her metric was for biological females. However in British Columbia and in Canada, Trans women are women whether Murphy agrees or not.

The only case to allow discrimination against a transgender woman since 1999 in British Columbia was Nixon v Rape Relief Society (BCHC 2000), overturned in favour of the Respondent on appeal on the basis of association within a membership-based organization (and not providing a service):

“Section 41 of the Human Rights Code is intended, in my opinion, to give, in cases within it, the right not to associate.  Implicit, in my opinion, is that freedom of association includes freedom from association.”

Honourable Madam Justice Southin
in Vancouver Rape Relief Society v Nixon, 2005 (court of appeals)

Precedent is quite clear and long-established: A club an not be compelled to accept Trans women as members or volunteers but trangender women are women in BC.

Both Murphy and Lakeman did mention that growing up female was a prerequisite for them to recognize someone as female and that in their minds someone like me who transitioned as an adult is not female. Whether they accept that a girl who transitioned at age 4 lives her life as a female and grows into an female adult is difficult for me to clearly establish from this talk. Nonetheless, the law is clear. In Canada, since 1999, they are required to accommodate women who are transgender.

Because ethics rules make it extremely difficult to access transsexual bottom surgery as a child it is difficult to meet the also-cited criteria of “growing up with a vagina” that Murphy and Lakeman seem to uphold is the appropriate way to frame female in this conversation. This, once again is a violation of BC laws prohibiting discrimination in all cases except club membership.

Prelude

Before the event, there was a protest organized by people unhappy this event was taking place at our public library. A microphone and loudspeaker were provided, giving people the opportunity to speak their mind. I arrived there around 8:45 and was present for all but the first 15 minutes of the speakers. I was one of the last speakers and I express my outrage to this event was happening at all and my outrage that the Vancouver Public Library would never allow other hate-based events to happen in that space yet continuously allows transphobic speakers to speak transphobia in their spaces. As a descendant of victims of the Holocaust with family who was sent to Nazi death camps in Poland, I’m mindful of the Supreme Court of Canada’s decision in 2013 which included the affirmation that allowing hatred to be published lays the foundation for genocide, and this is why we have limits on Publications amplifying hatred in Canada. Advocates of unconstrained Free Speech disagree profoundly with this fact, but none the less it is the law in Canada and remains so until Canadians choose to make it otherwise. This is an extremely unlikely development

This event would not have amplified hatred via publication from British Columbia if it had not been live-streamed from the Vancouver Public Library.

…but it was.

Everything Megan Murphy said at her January 10 event was published on the internet on YouTube. this means that Murphy, the Vancouver Public Library, and the City of Vancouver will have to account for this because they all contributed to it.

The central thesis of the entire evening, if we take into account the preamble, is that whatever the reason may be that transgender women think we are women, even though people should pity us they do not owe people like me the protections from discrimination that we have finally achieved after decades of advocacy by feminist organizations and community groups across the country.

As a consequence, Lakeman & Murphy emphatically stated on repeated occasions that women’s spaces are not for transgender women because women’s spaces are not for men. This is a claim that transgender women are men who are lying to someone about who we are in order to access women’s spaces for implied nefarious reasons.

This claim is that either we are deluded and lying to ourselves (pathologization), or we are lying to others (demonization). It is also an assoiation with reviled persons: the men who are predators of women (villification).

In Oger v. whatcott, a complaint now before the BC Human rights Tribunal (actually, it was ruled in my favour on 27 March 2019) about the publication of similar discriminatory statements during my 2017 campaign in the BC general election, I take the position that it is not the individual sentence that matters but the entire publication together that makes up a publication of hatred. This is based on the Saskatchewan v. Whatcott 2013 Supreme Court decision which supports this but also relied on specific words that demonized and vilified people on the basis of their sexual orientation. Oger v Whatcott is waiting for a decision from the Tribunal, and that decision will inform any future decisions on publishing hatred in British Columbia.

Update: Coverage of the Oger v Whatcott Human Rights Tribunal decision in my favour: (Vancouver Sun coverage – Star coverage – CBC coverage)

The Canadian Legal Information Institute tracks the rulings in Oger v Whatcott. I am told it is fascinating reading for legal and policy wonks.

Whatever the speakers at last night’s events believe, in British Columbia Services normally available to the public are prohibited from discriminating on the basis of the enumerated list of prohibited grounds for discrimination. Only a charity can ask to be exempt from that requirement, and only on the basis of the specific vulnerable class that the charity provide services to. In other words, a woman’s transition house cannot discriminate on the basis of race or place of origin or faith. In fact, it also is prohibited from discriminating on the basis of sexual orientation, gender identity, or gender expression. These are rules set out by Canada Revenue Agency as a prerequisite for qualifying for charity status which gives access to taxpayer provided public funds through tax credits.

Whatever Murphy and Lakeman might believe, there is no exception to that rule.

It was clear in the room that last night’s meeting was a call to action to get gender identity or expression removed from Human Rights protection in Canada. This makes sense as any other approach to fulfill their demands would require changing the protections for all the prohibited discrimination that are enumerated in our laws, and it seems unlikely anyone is misguided enough to try a dangerous stunt like that.

Based on the fact that this is what is being urged, last night’s event in context was an incitements to discriminate because it was a call to action to get Canadians to either advocate for discrimination or ignore the laws as they are written today.

On several occasions during my activities in human rights advocacy, I have noticed how critics of the protections brought in by bill C-16 would rebut my advocacy that our human rights law is our most important law by arguing that the death camps in Germany where the law too. They would propose that because death camps were wrong, Canada’s human rights law can be wrong too.

I think it is worthwhile noting here today that the only change to human rights law that happened when bill C-16 was enacted was the adding of gender identity or expression to an enumerated list of prohibitions, now encompassing 13 prohibited grounds of prohibition. Nothing else happened in our human rights law when Bill C 16 or its provincial equivalents were passed, extending explicit human rights protection to people like me on the basis of gender identity or expression.

I hold Meghan Murphy’s Feminist Current, the Vancouver Public Library, and the City of Vancouver responsible for the fact that this hate propaganda has been published to the internet. This material is aimed at increasing discrimination against transgender people in Canada and continuing discrimination against transgender people worldwide, all the parties involved knew it was going to be published, and they knew it was being published for the intent of increasing discrimination against people on the basis of gender identity or expression in Canada and worldwide.

The only defense the Vancouver Library could possibly have allowing this publication is to demonstrate that they knowingly allowed other similar material to be published from their facilities. If they do that, they will at least demonstrate that they give incitememt to disceiminate an equal platform and that they are not responsible for specifically targeting transgender people.

I demand that the City of Vancouver and the Vancouver Public Library publish a publicly accessible list of all the Publications they have participated in publishing targeting people on the basis of an explicitly prohibited discrimination.

I am grateful to the Vancouver Police Department and to the security teams who ensured that everyone in the room felt safe.

16 January 2019 update:

This posting is derived from a Facebook post which Meghan Murphy linked to in her post about her talk organized by her organization. as a result, the Facebook thread features over 1500 comments, many of them profoundly antagonistic to transgender people because of what is written here and in Meghan Murphy’s Feminist Current post linking to it.

References and links to relevant laws added.

17 January 2019 Update:

Visit Trans Rights BC to find information that is accurate, accessible, and relevant to the safety and well-being of trans and gender-diverse individuals and their supportive allies across British Columbia.

29 March 2019 Update:

In a 27 March ruling, the BC Human Rights Tribunal ruled that publishing material stating an intention to discriminate against transgender persons (or any other explicitly-protected class) or inciting others to do so was a violation of section 7 of the BC Human Rights Code, fining Bill Whatcott $55,000 for his actions in the ruling of the Oger v Whatcott case.

TERF and traditional conservative groups are predictably boutraged and/or in denial. The lack of knowledge of the law is not my concern.