How many cases of using the "wrong" pronoun has the Ontario HRC heard and decided?
At least one, where a refusal to use preferred pronouns was determined to be illegal discrimination in all areas covered by the human rights law.
The only case that the Ontario HRC cites is the 2015 British Columbia case,
Dawson v. Vancouver Police Board. There, the BCHRT Member found that there were 2 incidents in which the VPB discriminated against Dawson by failing to provide the required medical services, the first and most egregious incident occurring 11 days after Dawson had had sex-reassignment surgery. The BCHRT also found there was at least a single overt incident of discrimination, which included referring to Dawson as a male despite well knowing that she is a transgender woman.
This case involves a highly complex set of circumstances where the complainant has a long and extensive history with the Vancouver PD, has a substantial criminal history, including a conviction and incarceration for manslaughter. Many of the interactions between the VPD and Dawson stem from her habit of directing traffic at intersections in Vancouver, while on roller skates and wearing large headphones through which she is (often) listening to loud music. She apparently often wore (wears) a dress or skirt during this activity. At times she has impeded traffic doing this. It seems she often (though not always) referred to herself as a woman and used a female name (most recently, Angela) well before she had sex-reassignment surgery. But in her earliest interactions with the VPD, her sex was listed as male and her legal name Jeffrey was used.
At the time of the BCHRT decision, more than 5 years after her sex-reassignment surgery, Dawson still had not changed her name or her sex on her state-issued documents. And many of the incidents where an officer referred to her as male or called or listed her name as Jeffrey seemed to be rather innocent, due to prior history with her, records listing her sex as male and her name as Jeffrey, uncertainty about the legal effect of listing her sex and name differently than that on past records, lack of knowledge that she had had sex-reassignment surgery, and more or less an unwritten policy where a person's sex and name should be referred to in accordance with official documents and/or genitalia. On the other hand, not every encounter with her seemed to be the most respectful on either party's part, and one can easily imagine ill-motivated words arising during these incidents.
The case law cited in
Dawson is sparse and iffy at best. No case is referenced where use of a pronoun different than that by which a transgender person identifies constituted a discriminatory practice. Certainly no case law is noted requiring anyone to use the freakish no-language words listed in my post above that are supposed to represent gender-neutral pronouns. Hopefully needless to say, the Human Rights Act does not regulate the language used in private conversations between individuals; rather, discriminatory treatment is defined in terms of employment and provision of goods and services by covered entities.
Dawson cites the vaguely relevant 2012 case of
Moore v. British Columbia (Education), in which Supreme Court set out the three requirements for a prima facie case of discrimination (“complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact; and that the protected characteristic was a factor in the adverse impact”). The complainant in
Moore was the parent of a child with severe dyslexia who was receiving remedial educational services at an auxiliary center run by the school district. When the district closed the center, the child transferred to a private school, and the parent filed a complaint alleging that the child had been denied a “service . . . customarily available to the public” under the BC Human Rights Code. The BCHRT agreed, ordering wide-ranging remedies, including reimbursement by the district for the child's private school tuition. The decision was substantially upheld upon appeal through the courts.
Apparently the
Dawson decision was not appealed--the paltry sum of $15,000 awarded to her presumably made it more costly to appeal than to pay.
I do not think Dawson received an adequate award, even for her distress and humiliation in being denied medical services, which the VPB is required to provide. Further, one can only conclude that she suffered an adverse impact due to intentional “misgendering” language after officers were clearly informed and knowledgeable that she was a transgender woman. There is nothing acceptable in a police department or other government agency or employer referring to a transgender person in a way that is intended to demean and shame him or her, any more than it is acceptable to refer to a person in a demeaning or shaming way on the basis of the person's race or religion.
There is no issue of compelled speech by including gender identity and gender expression in the anti-discrimination and hate-propaganda laws, any more than the inclusion of sex, race, religion or sexual orientation compels speech. The anti-discrimination and hate-propaganda laws are strictly prohibitory of certain acts and behavior. The discriminatory treatment that the VPB was found to have perpetrated against Dawson was not due to an officer failing to use any prescribed words, but, rather, because the officers “differentiate[d] adversely in relation to an[ ] individual, on a prohibited ground of discrimination.”
Human Rights Act, s. 5(b). The BCHRT decision calls particular attention to the incident on June 18, 2010. See pp. 35-40 of decision.
