Human Rights Tribunal ruled complainant had racist motives
A B.C. human rights lawyer who specializes in the rights of trans people says a recent B.C. human rights tribunal decision, which found a trans woman was not discriminated against when denied Brazilian-waxing services, is a step backward for trans people and an example of their need for pro-bono and “low-bono” legal services.
Adrienne Smith is a Vancouver lawyer whose practice mostly consists of drug policy and human rights cases including name changes, gender-change applications, employment, access to services and other matters affecting trans people. Smith says the B.C. Human Rights Tribunal had a recent record of wins for the trans community.
“This case really overturns that process. And I think it does so because the applicant didn't have the benefit of counsel, which highlights the whole problem of Legal Aid funding for human rights matters in British Columbia and arguably across the country,” they say.
In Yaniv v. Various Waxing Salons (No. 2), 2019 BCHRT 222 (CanLII), Jessica Yaniv brought human rights complaints against seven waxing services Yaniv claimed violated s. 8(1) of the Human Rights Code, by denying services on the basis of her gender identity or expression.
The tribunal ruled against Yaniv, in part because it found her motivation in bringing the complaints was not merely to advance trans rights but also for her own financial gain and animosity towards the immigrant groups of which the respondents were a part.
During the hearings, Yaniv was on social media commenting on the case and making racist remarks against immigrants, things any lawyer would have prevented Yaniv from doing, says Smith. Smith also says, as waxing services are important to trans women, the community would had been better served had a different waxing case been put forward. The case had “unfortunate facts,” was “poorly thought out” and Yaniv wasn’t advised on how to behave properly, they say.
“There's a human rights bar in British Columbia that's working very hard to advance trans rights in the province,” Smith says. “… It's going to put a chill on trans rights human rights litigation in British Columbia.”
The code permits service providers to deny service to protected classes, if “they have a bona fide and reasonable justification.” Lawyers for the waxing services argued a decision against their clients would implicate their rights to freedom of religion, security of the person and commitment to multiculturalism, under the Charter. But in her ruling, Tribunal member Devyn Cousineau found the respondents’ Charter rights were not engaged or impacted in her decision, as Section 27(1)(e) of the Code allows the Tribunal to dismiss complaints filed for “improper purposes or in bad faith.”
“This is a high bar, and the Tribunal rarely dismisses complaints on this basis,” Cousineau wrote in her decision. But she found Yaniv’s conduct rose to that bar and her complaints were not filed to “prevent or remedy alleged discrimination” but for financial settlements and to “punish racialized and immigrant women” for her perception B.C.’s immigrant population is hostile to the LGBTQ+ community.
Yaniv had originally filed complaints against 13 waxing services, but a number of the complaints were dropped. Cousineau split the remaining complaints into two categories: Brazilian-waxing and leg- and arm-waxing. The Brazilian waxing complaints were dismissed because the service Yaniv was requesting was not one customarily provided to the public by the respondents, which is a necessary factor in applying to s. 8 of the Code. The respondents brought in an expert on waxing services who testified that Brazilian waxing is contingent on the customer having a vulva, while waxing a scrotum was called a “brozilian” or “manzilian.” The two procedures are different in technique and Cousineau added that a person “must actively and specifically consent” to provide a service which requires handling a “stranger’s genitals for a prolonged period of time.”
In the arm- and leg-waxing complaints, Cousineau said she would “likely have found at least one of the complaints justified.” But the motivation to confront discrimination was overpowered by Yaniv’s “dominant or overriding purposes” in bringing the complaints for racist purposes.
Cousineau presented Yaniv’s racism to the tribunal via Yaniv’s Twitter account, where she laments the poor English skills of immigrants, accuses immigrants of being unclean, of being liars who “do anything to support their own kind” and states she joined a girls-only gym to avoid them.
“It should go without saying that human rights complaints underlain by a racist agenda are antithetical to the Code’s purposes,” said Cousineau in her decision.
Cousineau ordered Yaniv pay $2,000 to each of the respondents.
Three of the respondents were represented by Jay Cameron and Brandon Langhjelm of the Justice Centre for Constitutional Freedoms.
“It's important to note that my clients weren't looking for trouble. They don't hate anybody. They don't hate trans people. They don't provide this service. And they have a right to not provide services that they're not trained for,” says Cameron, JCCF litigation manager.