Duelling Rights

Next month's legal review of a decade-long fight over gender boundaries probably won't end the courts' involvement

This city's best-known women's shelter appears to be surprisingly devoid of drama, at least outside of the law courts.

Vancouver Rape Relief Society's solid prewar house, nestled in a never-disclosed neighbourhood, is warm and welcoming. The floors have the glow of wood well-buffed by thousands of socks, the rooms are clean and bright, and the furniture, although simple hand-me-downs, has been carefully chosen for solidity and comfort.

In many ways, the space that houses the 24-hour crisis line and serves about 1,200 raped and battered women a year feels like a sanctuary in the medieval sense of the word. It's tempting to use the word convent, because the charity is organized by women for women. This place is home to about a dozen women at any given time, and it has that feeling of energetic serenity that is often found in communities with a strong sense of purpose.

Reporters are rarely invited into the shelter because the 32-year-old organization is concerned with serving the needs of its clients, not doing PR.

"Journalists are always disappointed to find there's no blood on the floors," says Suzanne Jay, who has volunteered with the organization for about a decade and is now part of the 10-member staff.

Jay and two volunteers have only agreed to chat because they're afraid the sanctuary they work so hard to preserve is at risk due to an ongoing legal battle with Kimberly Nixon, a male-to-female transsexual. Nixon accused RR of discrimination in August 1995 when she was denied the opportunity to volunteer as a peer counsellor, and the B.C. Court of Appeal will review the case March 7 to 9 this year.

To date, the combatants have one victory each. In 2001, Nixon finally won the complaint she filed the day after RR excluded her. The B.C. Human Rights Tribunal found that RR had discriminated and awarded Nixon a provincial record $7,500 in compensation. Although Section 41 of B.C.'s human-rights code allows nonprofit associations to promote the welfare of "identifiable groups"--including political and religious groups and those with common goals and experiences--the tribunal found that RR's radical-feminist conviction, that a "peer" is someone who spent her entire life as a woman, is not eligible for protection. They judged that RR's primary purpose is to serve women; Nixon is a woman, as reflected by her amended birth certificate, and for RR to draw a distinction was discrimination.

Rape Relief applied to have the tribunal's decision reviewed by the B.C. Supreme Court, which quashed it in December 2003 based on that court's assessment that the tribunal had ignored and misinterpreted relevant cases. In his judgment, Justice E. R. A. Edwards wrote that excluding Nixon "based on her experience as a male is not discriminatory under the Code". He concluded that Nixon, who left a volunteer counselling job at another organization, Battered Women's Support Services, was interested in Rape Relief specifically because of its women-only policy, which "would vindicate her womanhood". He also drew parallels between RR's ideas and religious convictions, and described their beliefs as an "article of faith", meaning "matters of received or accepted wisdom akin to religious beliefs, intuitively correct and not requiring logical or scientific demonstration for their validity".

"YES, BUT THEY'RE NOT A RELIGION--more of a cult," snaps barbara findlay, Kimberly Nixon's lawyer. Findlay is well-known as a champion of lesbian, gay, bisexual, and transgender rights, and she often works on high-profile cases. After years of being interviewed by reporters, she has a habit of peppering her conversation with provocative quotes.

Findlay is protective of Nixon, and it's not hard to understand why: after a lifetime of alternately hiding and fighting, her client has an air of vulnerability. Nixon, 47, is sensitive about her appearance because so much of this legal case revolves around whether or not she could be mistaken for a man. But with her shoulder-length blond hair, she looks much like any other fit, middle-aged woman. When she arrives at her lawyer's office after getting off work as a carpenter restoring heritage buildings, she'd much rather talk about golf than revisit the case. (Nixon, a member of the Canadian Ladies' Golf Association, is an elite amateur who competes provincially.)

But the dominant fact in her biography is that she has what doctors call gender identity disorder and that has led to a life punctuated by lawsuits.

"How many wrongful dismissals have you filed for me? Four or five?" Nixon asks findlay at one point during the interview.

Findlay shrugs. She doesn't remember, but she recalls there were also two human-rights complaints--all of which were settled out of court.

But the financial and emotional costs of this case have been heavy. As a human-rights complainant, Nixon was entitled to funding through legal aid, but findlay estimates she has donated between $70,000 and $100,000 in legal fees and even covered disbursement costs, such as filing court documents and buying transcripts of proceedings.

"This case has been a lot to endure: to be attacked around my identity," Nixon says. "But if I had walked away, I couldn't continue to live. It's hard for a transgendered person who seeks support and help....I am so afraid that Rape Relief will turn away a transgendered person from accessing services and that may cost a life."

From her earliest memories, Nixon recalls knowing she was a girl and having feelings of confusion and shame over having a boy's body. "I was playing house and I got dressed in my sister's clothes--but I locked the door first. When my father tried to come in, I sent my friend to open it and I prayed I would be changed before my father saw me. I remember feeling guilt and embarrassed for my father, but he just said, 'Oh, aren't we pretty.' I was lucky: my parents were wonderful."

Nixon found solace in flying. She earned a private pilot's licence at 16 and went on to work with a commercial airline and as a bush pilot doing medical-evacuation flights in northern Manitoba. While growing up, she cross-dressed secretly, and by the time she was in her early 20s she lived privately as a woman. In 1990, at 33, she completed sexual reassignment surgery, a technique by which surgeons remove the testicles and most of the penis and use the tissue from that organ to create a vagina. Daily hormones are necessary to maintain a feminine appearance. Nixon spent years saving for the procedure, which runs between $20,000 and $30,000. (SRS is now covered by B.C.'s medical services plan.)

"It saved my life," she says, remembering that she felt relief rather than fear in the moments before her surgery.

But for all the problems that going under the knife solved, it also caused a few. Nixon told the Human Rights Tribunal that she can't get hired as a pilot, and she has been fired from a series of jobs once her employers learned of her sex change, often through news stories.

After going through all of that, Nixon found the RR rejection devastating. "I felt less than human and I didn't want to be here anymore. I felt I wasn't part of society; I wasn't wanted. I thought about the Lions Gate Bridge. But I've spent my whole life surviving, so I filed the human-rights complaint instead."

Although Nixon now volunteers for WAVAW (Women Against Violence Against Women), she still feels that admission to Rape Relief is important. She just wants the organization she praises for doing good work to live up to its ideals. "I expect of them what they expect of others: I want them to educate themselves around the issue of oppression and transgender. They educate society around issues of violence, homophobia, and racism, and expect society to learn. But in this case they just throw the rules of operation right out the window."

NIXON V. RAPE RELIEF is a precedent-setting case and, to date, the conflict has lasted as long as the Trojan War: 10 years. And it's just as complicated. If it goes to the Supreme Court of Canada, as most legal observers expect it will, it could be years before there is a final decision.

On one level, it's a case of duelling rights. Should individual rights triumph over group rights? Are raped and battered women more worthy of protection than one transsexual?

No one involved in the case believes that Nixon is a physical threat. The tribunal also heard that she was an effective counsellor while working for Battered Women's Support Services. (Nixon says she left BWSS in 1997 after she tried to introduce "trans sensitivity" into the group's mandate and other members "circulated hate literature": articles on transsexualism by radical-feminist thinkers such as Germaine Greer, Janice Raymond, and Sheila Jeffreys.)

But based on advice from psychiatrists and more than 30 years of working with women who were abused by men, RR organizers believe their clients are more comfortable in an environment that is unambiguously feminine in both cultural terms and in its volunteers' looks.

Findlay points out that RR perpetuates stereotypes, something that was revealed at the tribunal, where there was evidence of a woman being asked to stop wearing a baseball cap backward because of its masculine connotations.

Jay confirms that RR does pay attention to the appearance of its counsellors. "It's important to put the comfort of the women in crisis before your own personal style. Out of empathy to other women, you make yourself accessible and easy for them to approach. It's hard enough to tell people about the intimate details of your life. And we deal with the widest range of women; many may not be feminists. When I think about who we have to serve, I think about women like my mom and my aunts [in Fort St. John] and any of the women you might find in a shopping mall."

But it is also a clash of political beliefs: queer theory versus radical-feminist philosophy. The gender benders hold that the terms men and women are passé, sex is a state of mind, and gender is nothing more than a social construct to be played with.

As radical feminists--or "fundamentalist feminists", as their critics call them--Rape Relief members trace violence against women to the patriarchy, the male-dominated social structure. They agree that gender traits are social inventions and that biological sex encompasses a range of physical characteristics, but they consider men and women to be political categories.

To understand their view of why a transsexual cannot be considered the peer of a lifelong woman, it's useful to replace man and woman with oppressor and oppressed, as Sheila Jeffreys explains in her 1997 article "Transgender Activism: A Lesbian Feminist Perspective" (which can be found on the RR Web site (www.rapereliefshelter.bc.ca/). Jeffreys, a political-science professor at the University of Melbourne, writes: "Feminist commitment to women-only space is based on a definition of 'woman' as a political category created through oppression. 'Woman' is the result of the experience of living as a woman under male supremacy."

To their way of thinking, although an "oppressor" might have cosmetic surgery, she can never really comprehend the world of the oppressed because she grew up experiencing male privilege.

FINDLAY DISMISSES this feminist philosophy as "transphobia" by another name. "What they are saying is that 'we think you are so subhuman we don't care if you die.' That is what this is about. That is what Rape Relief is saying. They are not seeing it in the social context. Some women can count on being beaten and assaulted and be more in need of women's services than other women," she says while pointing at Nixon. "The only difference in the discrimination that Kimberly experiences is in the order of magnitude. It's hate."

Suzanne Jay finds listening to that kind of rhetoric one of the toughest aspects of this case. The women in the RR collective recall old-fashioned leftists who "struggle" through "consciousness-raising" to fight bigotry. The loss of open discussion about the Nixon case has been almost as hard a blow as the $100,000 in legal fees (from their $700,000 budget) and the fear of losing their women-only space.

"This case has caused a chill: people are afraid to even discuss it for fear of being called 'bigots' or 'transphobic'," says Jay, who, as a spokesperson, attracts many of the attacks.

But women who aren't deterred by a little mudslinging aren't intimidated by the hard work at RR either. Volunteers cover at least one graveyard shift a week, and it's not unusual for someone to be pulled out of bed at 3 a.m. to accompany a raped woman to an emergency room or the police. They act as knowledgeable friends to support women through the crisis and as a source of information for dealing with everything from the courts to the welfare system.

"But the work doesn't feel hard," says Lynda Gerty, who works elsewhere full-time in addition to having volunteered with RR for the past five years. She finds helping other women rewarding and joined this group specifically because of its feminist stance. "You don't find this level of intellectual and political debate outside of university."

Carmen Daly, who hails from Honduras, joined RR two years ago. "Although I come from a macho culture, I find that women are very similar in the ways they are oppressed everywhere," Daly says, explaining why she supports the idea of peer counsellors because of the intimate nature of the conversations in the shelter.

Findlay characterizes their beliefs about peers as "learned oppression". "The entire history of human rights and equality is that you have the right to be safe--you don't have the right to be comfortable."

And because Nixon believes she has always been a woman, albeit in the body of man, she feels she has plenty to contribute to the peer discussions. She was battered by a male partner and sought counselling at Battered Women's Support Services. Then she went to Rape Relief because she wanted to "give something back".

And that's when the war began.

In August 1995, Nixon joined one of the ongoing training workshops Rape Relief runs for volunteers who want to be peer counsellors. Supervised trainees staff the hot line in the safe house and become part of the community for 12 weeks. Like all would-be volunteers, Nixon had to agree to RR principles: to be willing to work against racism; not to blame women for the violence done to them; to assist clients who choose abortion; and to fight for women's right to choose their sex partners. Nixon passed the screening.

But Rape Relief has another requirement that has been a given since its 1973 inception: that its members be women. That was a simpler time, when there was no definition for man or woman because everyone thought they knew who was who, although American Christine Jorgensen became the world's first celebrity transsexual in 1952. Until the '90s, the medical community had a policy of being discreet about "intersex" conditions. That term covers everything from babies born with "ambiguous genitalia" to women with male chromosomes and vice versa.

The three facilitators running the RR workshop suspected that Nixon was transgendered, but they didn't have a policy to deal with it. They discussed it and decided her presence was inappropriate because Nixon didn't meet their definition of a peer.

The task of questioning Nixon fell to Danielle Cormier, who now works for another nonprofit society. She asked Nixon how long she had been a woman.

" 'All my life,' Nixon replied," Cormier recalls. "So I said, 'I am not asking how long you felt you were a woman but how long you have been living as a woman,' and she told me.

"I made a serious attempt to explain who we [Rape Relief] speak for. It went badly right away," Cormier recalls. "She was angry and perceived it as a personal attack. That night she made threats: 'I have been in the media. They have covered my story and you can expect to see your name there.' Her response was typically male: coming from a position of privilege."

Still, Cormier says she has a lot of sympathy for Nixon: "I understand Kimberly's point of view: she has been thrust by the medical establishment into an ultramarginalized group."

In Cormier's analysis, Nixon is a man who is as much victim of the patriarchy as any woman. "They discriminate against men who do not fit into the box that is labelled 'men'. Rejected by their own gender, what choice do they have?"

Findlay has a response to that line of thought. "In a world where there are only two choices, M or F, Kimberly has an F--and we say, F you!" findlay says, then laughs at her own pun.

POLITICS ASIDE, both Nixon and the women served by Rape Relief have a claim on the law's protection.

According to Christine Boyle, a professor at the University of British Columbia law school who is also one of the lawyers acting for Rape Relief, the legal conflict grows out of two different approaches to achieving equality. "Formal equality" requires that every individual be treated exactly the same. "Substantive equality" takes into account a group's disadvantages and is the philosophy behind affirmative-action hiring policies and government programs for minorities. Nixon's camp is arguing for a formal-equality treatment of the case. Rape Relief's argument is rooted in a substantive-equality reading of the facts.

"Human-rights cases are usually quite simple in terms of discrimination: someone is denied a service or employment because of, for example, race. Because they are straightforward, the test [for discrimination] is different. But this case is more complicated, so it requires a contextual approach," Boyle explains, adding that Nixon's complaint is on the "extreme edge" of what human-rights tribunals are designed to handle, which is employment and services being offered in the marketplace. "This wasn't employment; it was a volunteer job. And Ms. Nixon argued that she was denied a service, but how can helping raped and battered women be a service for her?"

Although findlay argues that Rape Relief shouldn't be allowed to use personal differences to distinguish between different members of an identifiable group, Boyle argues that that is exactly what the right of association is about. She refers to a 1984 case, Caldwell v. Stuart, in which the Supreme Court of Canada allowed a Catholic school to prefer Catholic teachers who adhere to dogma on marriage over Catholic teachers who didn't.

"I think Rape Relief is entitled to the same law as Catholics," Boyle says drily.

It's hard not to notice the two parties' many similarities: in the way they see the world and the language they use. It's a wonder they couldn't find a political solution to their dispute, but an early attempt at mediation failed. Nixon says she felt insulted when RR offered a letter of apology, $500 for hurt feelings, and a spot on its mixed-sex fundraising committee.

Ever the counsellors, Jay and Nixon each warn that if I write "sympathetically" about her side of the case I'm likely to come under attack from supporters on the other side. They would know: both of them have been insulted personally because of this case, and Nixon has been threatened physically.

But it would be impossible not to be sympathetic to both parties. Both have legitimate grievances. Regardless of what anyone thinks about their respective political views, there's no denying that Jay, Nixon, and all the women involved have the courage of their convictions, which is always admirable.

Of course, they both meant sympathetic in the sense of siding with one group or another--and that too would be impossible. No one could envy the judges who are obliged to decide whose rights should triumph, because taking sides in this battle would be a little too much like taking sides in Greek tragedy.