BC Human Rights Tribunal
1170-605 Robson St
Vancouver BC V6B 5J3
September 27, 2017
ATTN: Daniel Varnals, Case Manager
Re: Morgane Oger v Bill Whatcott (Case Number: 16408)
The Complainant hereby applies for reconsideration of the Tribunal’s decision
communicated in a letter dated September 13, 2017, in which the Tribunal declined to
correct an error in decision number 2017 BCHRT 195, at paragraph 2.
For clarity, the Complainant is not seeking reconsideration of the merits of 2017 BCHRT
195, granting intervenor status to the Canadian Association for Free Expression and
denying intervenor status to Gordon Watson. The Complainant only seeks
reconsideration of the Tribunal’s decision not to correct an error made in 2017 BCHRT 195
at paragraph 2.
The first sentence of that paragraph says: “Ms. Oger was born as a male but identifies as a
Counsel for the Complainant brought this error to the Tribunal’s attention on September
12, 2015, by email (attached hereto as Appendix A). As set out in that email, the
Complainant was not born male. The Tribunal responded stating that the Tribunal
Member did not understand where the error was, and asked counsel for the Complainant
to describe how this sentence was in error.
Counsel responded, stating: “Ms. Oger was not born as male.”
On September 13, 2017, the Tribunal responded by letter (attached hereto as Appendix
B), stating that it would not correct this error. The Tribunal stated that the burden is on
the person seeking a correction to persuade the Tribunal that the particular statement
said to be in error was indeed an error, and Ms. Oger had not done so.
Demanding that the Complainant, a transgender person, prove her identity is
It is not the normal practice of the Tribunal or of any decision-making body, to the
Complainant’s knowledge, to require parties to prove such personal, intimate elements of
their identity as their sex. To do so would be (and is in this case) highly invasive.
Individuals are taken at their word that they are male, female, transgender, or any other
applicable gender identity.
The Tribunal has required Ms. Oger to persuade it that the statement that she was “born
a male” is false. Ms. Oger telling the Tribunal that that is not her gender identity is
Ms. Oger has offered to provide a copy of her identity document, which indicates that her
sex, in the eyes of the law, is female. It is not “born male but now identifies as female.”
Ms. Oger stated and continues to assert that she should not be required to furnish
identity documents for the Tribunal to accept that her gender identity is as she says it is.
This is a burden imposed on her, a transgender person, but not on any other party to any
other case before the Tribunal to the Complainant’s or counsel’s knowledge.
The Complainant is not aware of any case in which a cisgender complainant has been
required to persuade the Tribunal that they are the sex or gender they say they are.
Transgender persons are routinely challenged on the veracity of their gender identity. In
fact, that is what this case is about: the Respondent and Intervenor refuse to accept that
Ms. Oger’s, and other transgender individuals’, gender identity is real.
For the Tribunal to require Ms. Oger to furnish proof of her sex or gender identity is a
further perpetuation of this very discrimination. It relies on and extends the stereotype
that transgender people’s own statements about who they are cannot be accepted as true.
The Complainant’s gender identity is not on the record
There was nothing in the application or anywhere in the record for the Tribunal member
to make the statement made in paragraph 2, that Ms. Oger was born male. The Tribunal
member invented this fact.
It is not open to the Tribunal to invent facts about parties and then require parties to
persuade them that those invented facts are false.
The Complainant’s gender identity is irrelevant to the complaint
Ms. Oger’s gender identity is irrelevant to this complaint. Ms. Oger is a transgender
woman, not a person “born as male who now identifies as female”, but even that fact is
irrelevant. As determined in School District No. 44 (North Vancouver) v Jubran, 2005
BCCA 201, a complainant need not actually possess the personal characteristic forming
the basis of the discrimination in order to succeed in establishing a breach of the Code.
The Tribunal Member has asserted a fact that is not only false, but entirely irrelevant to
the complaint before the Tribunal.
This is not a case in which the applicant for reconsideration seeks to submit
information they should have previously put forward
Reconsideration applications cannot be used to put information before the Tribunal that
should have been, but was not, put before the Tribunal at an earlier stage: Hanlon v City
of North Vancouver and another (No. 2), 2016 BCHRT 152 at para 7.
In this case, argument about or proof of Ms. Oger’s gender identity is not information
that the Complaint ought to have previously put forward. It is not the case, ever, that a
complainant must prove that they possess the characteristic that is the subject of
discrimination in order to succeed in a complaint before the Tribunal. As stated above, it
perpetuates discriminatory stereotypes to assert that transgender complainants must
prove their gender identity in order to pursue a complaint before the Tribunal.
The question of the Complainant’s gender identity will not be resolved in a
determination of the merits of this complaint
The Tribunal’s letter of September 13, 2017 refers to the fact that this is an interim
decision and suggests that “even that simple sentence” (describing Ms. Oger as “born as a
male”) will be the subject of argument at a hearing of the complaint on the merits.
Ms. Oger’s gender identity will not be the subject of argument at a hearing of the
complaint on the merits.
Ms. Oger’s gender identity is irrelevant to the merits of her complaint.
The question before the Tribunal at a hearing on the merits of the complaint will be
whether the Respondent has breached section 7 of the Code. There is no reason for the
Tribunal to make a finding of fact as to the Complainant’s gender identity in order to
answer that question.
In any event, the parties do not dispute that Ms. Oger is transgender: the parties dispute
whether transgender people’s gender identity is real, and whether persons like the
Respondent may publish hateful materials about transgender people without offending
the Code. The Tribunal is not asked to determine Ms. Oger’s gender identity at any point
in this complaint.
The Complainant suffers prejudice by having the decision stand uncorrected
The erroneous statement that Ms. Oger “was born as male but identifies as female” is
based on pernicious, discriminatory stereotypes about transgender people, and is wrong
When transgender people legally change the sex marker on their birth certificates or
other foundational identity documents, that change is not prospective only. A birth
certificate that was formerly marked “M” is not now marked “Born M but now identifies
as F”. It is marked “F”. In the eyes of the law, the individual was always female but was
mis-identified as male prior to the correction of the birth certificate.
More importantly, transgender people experience their own gender identities in many
different ways. While some people might experience that they used to be one gender but
now identify as a different gender, many transgender people experience that they have
always been one gender, but were misidentified by the world around them.
The idea that transgender people were “born” one way but “identify” differently rests on
the assumption that there is a true, biological gender of each person, determinable by the
shape of their external genitalia, and that a transgender person has deviated from that
true, biological gender.
The statement that Ms. Oger “was born as male but identifies as female” is false and
perpetuates stereotypes about her and other transgender people. It now exists in a
published decision of a legal decision-making body. It is available on CanLII and on the
Tribunal’s website. There exists a binding legal statement that Ms. Oger’s sex and gender
are something other than what they are. Ms. Oger is a prominent activist for transgender
rights and other social causes, and the impacts of this false statement on her sense of self
and public reputation are significant.
The interests of fairness and justice and the purposes of the Code militate in
favour of reconsideration
Reconsideration may be granted where to do so would serve the interests of fairness and
justice: Grant v City of Vancouver and others (No. 4), 2007 BCHRT 206 at para 8.
The erroneous statement is not only patently false, it perpetuates the very discriminatory
thinking that is at the centre of this case. The erroneous statement makes a finding of fact
on something that is wholly irrelevant to the complaint. The Tribunal has gratuitously
invented a fact about the Complainant and then required the Complainant to prove that
this erroneous, extraneous, and discriminatory “fact” is false.
The inclusion of this erroneous, extraneous, and discriminatory “fact” in 2017 BCHRT 195
is contrary to the purposes of the Code.
It is contrary to promoting a climate of understanding and mutual respect where all are
equal in dignity and rights (s. 3(b)): it creates a standard where cisgender people are who
they say they are, but transgender people have to persuade the Tribunal that their selfdeclarations
It is contrary to the prevention of discrimination prohibited by the Code (s. 3 (c)), because
it perpetuates stereotyped thinking that assumes that transgender people have a “true”
biological sex, assigned at birth, and change from that true sex to something else that is
merely an identity.
It is contrary to the provision of a means of redress for persons discriminated against
contrary to the Code (s. 3(e)): transgender people will be dissuaded from seeking redress
through the Tribunal if the message to them is that they will have to prove their sex or
gender, or risk having a false statement about who they are published by the Tribunal in a
binding decision, which the Tribunal refuses to correct.
For all of the above reasons, the Complainant asks that the Tribunal’s decision refusing to
correct the error in 2017 BCHRT 195 at paragraph 2, communicated by letter dated
September 13, 2017, be reconsidered.
All of which is respectfully submitted on behalf of the Complainant,
ALLEVATO QUAIL & WORTH
per Susanna Allevato Quail
Barrister & Solicitor
cc Morgane Oger