A B.C. Human Rights Tribunal member has rejected an application to disqualify herself from a case involving a prominent transgender woman.
Tribunal member Devyn Cousineau's recusal was sought by Christian activist William Whatcott, who is the subject of a complaint for discriminatory publication under the B.C. Human Rights Code.
Transgender advocate Morgane Oger filed the complaint after Whatcott last year distributed flyers targeting the identity of Oger.
At that time, Oger was the B.C. NDP candidate for MLA in Vancouver-False Creek.
The handouts read, “The truth is there are only two genders, male and female and they are God given and unchangeable.”
Whatcott wanted Cousineau to remove herself from the case because of alleged bias.
Whatcott cited a number of reasons in his application to disqualify Cousineau, a tribunal member since November 2017.
One supposed evidence of bias is that Cousineau uses female pronouns to refer to Oger.
“He says that ‘the complainant is male and pretends to be a woman’ and that to refer to her as a woman is to entertain ‘legally protected self‐delusion’,” Cousineau wrote in her decision. “He says that, before my involvement, the Tribunal had a practice of referring to Ms. Oger in ‘a neutral way’.”
“He says that, in referring to Ms. Oger as a woman, I have ‘assumed the truth of a fact in issue’, namely that Ms. Oger falls within a class of persons protected by the Code,” the tribunal member continued.
However, Cousineau noted that referring to Oger through female pronouns is correct.
“This is appropriate, given that Ms. Oger identifies as a woman,” Cousineau wrote. “The Code confers protection on Ms. Oger to express her gender identity. For trans and gender non‐conforming people, being properly ‘gendered’ by the service providers they are required to interact with is a critical part of their ability to participate with dignity in the economic, social, political and cultural life of the province.”
Whatcott also argued that Cousineau was a “vigorous advocate of LGBT rights” before her appointment to the tribunal.
“He says that I will be predisposed to decide this complaint based on my ‘personal subjective view … through the lens of political correctness’,” Cousineau wrote in her decision.
Cousineau acknowledged that before her appointment to the tribunal, she had acted as a lawyer for complainants before the same tribunal, who alleged discrimination due to sexual orientation.
She had also co‐authored a paper about the rights of transgender people.
“What this demonstrates is that I came to this Tribunal with experience and engagement in human rights law. This is a pre‐requisite for the position,” Cousineau stated. “It does not, in my view, amount to evidence that I would not decide this matter fairly.”
Cousineau will hear Oger’s complaint in September this year.