Tense & Nasty: The Transgendered versus The Preacher Before the B.C Human Rights Tribunal
Free
speech and the rights to express one's religious beliefs were very much
on trial during a five day hearing (December 11-17) before the British Columbia Human Rights Tribunal. Ronan Oger, a transgendered advocate and activist and a vice-president of the provincial New Democratic Party, had laid a complaint against Bill Whatcott for
distribution of 1,500 copies of a leaflet during the May, 2017
provincial election. Mr. Whatcott's leaflet called into question Oger's
fitness for public office, on the basis of his sexual confusion. Relying
on the Bible's account that God created two sexes, Mr. Whatcott
argued that if Oger couldn't get his sexuality right, should be really
be entrusted with making decisions on such matters as the provincial
budget.
The original one-person tribunal, just before the proceedings opened expanded to three, consisted of Devyn Cousineau, an outspoken social justice warrior and donor to LGBT causes.
The defence tried unsuccessfully to have her recuse herself for a
"reasonable apprehension of bias." In preliminary proceedings, the
Tribunal rejected all the defence character and expert witnesses. The
final defence witness-to-be was Dr. Willi Gutowski, a medical
doctor and psychiatrist with over 30 years of clinical experience
treating patients in Chilliwack and the U.S. He had frequently been
called as an expert witness before U.S. courts. He had treated
transgendered people in the past. He said, during testimony seeking to
qualify him, that he "has a particular interest in dissociative
disorders." No one can make you hate, he said: You will yourself to have
the thoughts that lead to the emotions of love or hate. "Love and hate
are both a choice of the will." His expertise would have been crucial as
Oger's lesbian lawyer had contended that Mr. Whatcott's pamphlet was
likely to expose the transgendered candidate to hatred or contempt. The
panel decided to reject Dr. Gutowski concluding: "The burden has not
been met as to his qualification on this topic." Thus, the defence had
but one witness -- Bill Whatcott.
The defence was not allowed to challenge the nature of transgenderism. Is it mistaken and immoral, as Bill Whatcott argues
on biblical grounds? Is it a state of delusion -- in short, mental
illness -- as many psychiatrists and scientists contend? Humans are born
with one of two and only two chromosomal combinations: two "X
Chromosomes" -- female; and X and a Y Chromosome -- male. Apparently, if
you're born a man but identify as a woman, or vice versa, then you are
whatever you feel you are or want to be. Thus, a hulking, hairy man with
a penis who identifies as a woman should be able to prance into the
girls' washroom and ogle 13-year old girls.
The panel made their prejudice crystal clear. On at least eight separate occasions, Devyn Cousineau who seemed to be keeping careful count, interrupted Defence lawyer Dr. Charles Lugosi for "misgendering" Oger by referring to him as "he", instead of she.
CAFE has been an active intervenor in this long and costly case. In its oral submissions, December 14, Director Paul Fromm argued
that Oger had not been the victim of discrimination. No candidate is
entitled to anyone's vote. A voter may discriminate in his or her choice
by voting for or against a candidate for ANY reason -- sexual identity,
policies, history. Not all "discrimination" or advocacy of
discrimination is banned under human rights laws, only discrimination
in the provision of certain goods and services. Mr. Fromm protested the
discriminatory rules imposed upon the Defence side. Oger had complained
that Mr. Whatcott's leaflet intimidated him and prevented him from
being his authentic self. Mr. Fromm said forcing the defence to refer to
Oger as "she" or more awkwardly as "the complainant said in the
complainant's complaint" violated the Defence's ability to be their
authentic selves. "Mr. Whatcott questions Oger self-identification on
religious grounds; I and others question his identity on scientific,
psychiatric or common sense grounds. We should not be compelled to say
what we don't believe or end up speaking in stilted 1984 Newspeak. If I wake up and believe I am Napoleon, no one is under any obligation to call me 'Emperor,'" he said.
CAFE argued
Mr. Whatcott's leaflet was not about "hate". Oger had testified that he
had felt fearful. Mr. Fromm pointed out that his alleged fear had not
prevented him from continuing as the NDP candidate in Vancouver-False Creek,
from holding rallies and running again, in 2018 for school trustee. Mr.
Whatcott's leaflet did not advocate "hate" much less violence, but
urged voters to tell NDP canvassers they would not be voting for that
party.
The following are portions of Dr. Lugosi's masterful summation on behalf of Bill Whatcott:
2 Canadian history records significant litigation brought by Jehovah Witnesses whose civil rights were upheld by the Supreme Court of Canada.
This pioneering jurisprudence left a legacy that ensures that personal
freedom of Witnesses to go door to door to distribute literature today
remains a beacon of religious liberty and personal freedom.
3 Christians
like Whatcott take seriously the biblical command to go forth and
evangelize the world. His flyers preach the gospel of the Christian Holy Bible. His flyer is anchored in biblical verses that provide the foundation of his political message.
4 What Oger seeks is the branding of Christian preaching in a flyer as hate propaganda. Section 7 of the BC Human Rights Code is
to be utilized as a tool to silence and punish political enemies, who
if powerful enough, would repeal s. 7 and the addition of gender
identity and expression as a protected ground.
5 If
this Tribunal adopts Oger’s contention that faith is a private matter,
and must be kept in the closet and out of the public square, this will
set the stage for the creation of a new kind of crime, rooted in human
rights legislation. The new crime is publicly manifesting religious
belief.
6 Oger
contends that even if the flyer does not promote violence or the threat
of violence, it ought to be interpreted as hate literature, which
inspires violence by others, harming not just Oger but anyone who is
transgender or a family member. What Oger describes is a human rights
crime that has no victim.
7 The movie Minority Report described
a society wherein an individual could be tried and convicted of the
crime of murder, when no murder has been committed. I suggest that Oger
views Whatcott as a continuously barking dog that is a nuisance, an
irritation that spoils Oger’s political and legal agenda by refusing to
let go of his bone. The bark is the flyer, the dog is less than human,
and the bone is the Bible.
8 Oger,
who did not personally receive the flyer, is on a mission to stamp out
all opposition in a crusade that amounts to Christophobia. Nothing less that the erasure of Whatcott will satisfy Oger.
9 Oger
invites the panel to speculate that the flyer will incite evil. Oger
implores the panel to harshly punish Whatcott as a preventative measure,
to destroy him financially and to permanently muzzle this troublesome
meddling dog that will not let go. No evidence of causation is offered.
Subjective belief of Oger that amounts to conclusory statements is urged
to be sufficient.
10 Even
accepting genuine fear in Oger was generated, the evidence does not
disclose any reasonable basis for that fear. See Bracken v. Fort Erie (Town) 2017
ONCA 668, para. 46. “A person’s subjective feelings of disquiet,
unease, and even fear, are not in themselves capable of ousting
expression categorically from the protection of s. 2(b).[Charter]” para.
49. “… courts must be vigilant in determining whether the evidence
supports the characterization, and in not inadvertently expanding the
category of what constitutes violence or threats of violence.” Para. 50.
“Courts should not be quick to conclude that a person’s actions are
violent without clear evidence. Here, there is no evidence that Mr.
Bracken’s protest was violent or a threat of violence, and the finding
that it was constitutes a palpable and overriding error.”
11 Was the flyer tantamount to a “dog whistle” directed to transgender people, as alleged by Oger? The Ontario Divisional Court in Christian Heritage Party of Canada v. Hamilton (City),
[2018] O. J. No. 5105 stated at para 60 that, “…the removal of
political speech as a result of alleged subtle, hidden messages in
visual imagery demands that robust explanations be given and demands
that the CHP have an opportunity to participate in that inquiry.
Absent such explanations, any individual could stifle otherwise valid
political speech by citing subliminal messages without having to justify
that position… no two witnesses saw the same hidden message or even
agreed as to what the image was showing.”
12 These
two illustrations from the evidence of Oger amply demonstrate that
Oger’s evidence amounts to conclusions derived from Oger’s personal
biased intolerant perspective. Stating conclusions about a subtle “dog
whistle” message and an incitement to hate and violence and without any
rational evidentiary basis, and are of no value to the Tribunal. Accepting this evidence would amount to an error in law. See: Canadian Center for Bio-Ethical Reform v. South Coast BC Transportation Authority, 2018 BCCA 440 at para. 50, 54, 60.
13 The
“likely to expose” may be patently unworkable. There is no definition
of the “reasonable person.” A hypothetical panel of three qualified
lawyers, all with Asian origins from countries where Christianity is
respected and gender identity is not legally protected or recognized,
might find that Whatcott’s flyer to be eminently reasonable, easily
finding that the test of “likely to expose” is not even remotely met.
22 The
core value of freedom of expression is a search for the truth, and is
at its highest protection in the context of public participation in an
election campaign in a free and democratic society. While Whatcott may
represent only a tiny minority viewpoint in contemporary Canadian
society, the constitutional Charter values of liberty (s. 7);
conscience and religion (s. 2a); thought, belief, opinion, expression
and freedom of the press (s. 2b); right to vote (s. 3); not to be
subjected to cruel or unusual treatment or punishment (s. 12); equality
and equal protection (s.15); and multicultural heritage (s. 27) all
apply to protect Whatcott’s rights. [The Tribunal reserved judgement.]
