At the Human Rights Tribunal, Rape Relief took a different tack. They argued that because they were a women's group, serving a group historically discriminated against in Canadian society, they should be exempt from the application of the Human Rights Code. They pointed to a section in the law which immunizes equality-seeking or equality-serving groups from complaints of exclusion by people who are not members of the group. Women's groups do not have to admit men; aboriginal groups do not have to welcome non aboriginal people; and so on. Though they admitted that Nixon was, legally, a woman, they said that their group was composed of biological women only.
They also advanced a complicated argument that the way human rights legislation is treated has changed after cases decided under the Charter of Rights (part of the constitution). Those cases, said Rape Relief, meant that Nixon had a higher burden of proof in her human rights case, a burden they said she had not met.
They went on to argue that even if they were found to be discriminating, they had a defence, because they had a "bona fide justification" for requiring that women who counselled rape victims have had the experience of being treated as girls/women all their lives.
Nixon responded that women's groups were entitled to exclude men; but she was a woman. She disagreed that the Charter had changed the way human rights cases had to be proved. And she said that there was no evidence that "women born women" were different or better than transsexual women in counselling women who were victims of male violence -- including transsexual women who were victims of male violence.
Nixon pointed to her successes volunteering at other women-only crisis agencies in the city.
The human rights tribunal decided in Nixon's favour on all counts; and awarded her the highest damages award in the history of human rights decisions in the province.
I wrote an article about the decisions of the B.C.Supreme Court and the Human Rights Tribunal for the UBC Law Review, 2003 No1.
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