– 
Ronan (picture left) when he was a husband and father of two children 5 years ago. Ronan (picture right) campaigning for NDP in Downtown Toronto riding Vancouver False Greek.

Bill Whatcott’s response to Ms. Susanna Quail’s long winded letter to the BCHRT asking the member Walter Rilkoff to reconsider his decision to not rewrite one sentence in his decision on interveners in Oger vs Whatcott to suit Ronan Oger’s gender delusion.

October. 1, 2017
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 defendant hereby responds to the spurious and factually erroneous arguments of the complainant and his counsel, Ms. Quail.

Ms. Quail started this circus by claiming in her e-mail exchange with the BCHRT that the complainant “was not born as male.”

The defendant, the complainant’s obstatrician who gave birth to him, the French government and the complainant’s ex-wife to only name a few, know otherwise. The bottom line is, if the complainant and his counsel are deluded on a fact as basic as the complainant’s sex at birth then they won’t be credible on just about anything else. Indeed the defendant can demonstrate that Ms. Quail is light on facts with just about everything she says in her latest letter by doing a very quick and superficial critique of her arguments in her September 27th, “Application for reconsideration.”

Ms. Quail claims “The Complainant’s gender identity is not on the record.”

Actually, the complainant’s gender identity is on the record.

On page 1 of the original complaint against me, Ms Quail wrote: “The Flyer attacks Ms Oger’s gender identity. It says Ms. Oger’s gender identity is false and an “impossibility” and that transgender people like Ms. Oger are at elevated risk of various diseases and violent acts.”

As the Tribunal can see in the above paragraph Ms. Quail refers to the complainant with a female pronoun and Ms. Quail tells the tribunal and anyone reading the complaint that the complainant is transgender.

Ms. Quail states “The Complainant’s gender identity is irrelevant to the complaint.”

With all due respect the complainant seems to believe his gender identity is relevant to the complaint. On Twitter three days after launching his complaint, the complainant wrote: “Monday I filed a BC #Human Rights tribunal (sic) complaint against Bill Whatcott due to hateful acts over my gender identity + expression.”

Ms. Quail incorrectly states, “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.”

In actual fact defendants are entitled to discovery, especially in matters that are pertinent to the defendant’s defense. In any event the complainant’s so-called gender identity is not really all that personal or private of a matter. A quick perusal of the CBC, Globe & Mail, Youtube, Vancouver Province, Xtra, Facebook, Twitter, etc, etc, etc….. will show quite definitively that the complainant’s gender identity is just about the only thing he actually talks about when speaking to the public. And a quick check will confirm the complainant likes to talk about his gender identity in public often.

Some pertinent questions that the defendant believes should be answered by the complainant’s counsel if the BCHRT is actually going to entertain this request for the reconsideration of Walter Rilkoff’s September 13, 2017 decision in regards to interveners in the Oger vs Whatcott case where Mr. Rilkoff aptly noted “Ms. Oger was born as a male but identifies as a female.”

1. What does the complainant’s French Birth Certificate identify him as?
2. Did the complainant’s obstetrician and/or midwife identify him as a male or a female when he was born?
3. Did the complainant’s mother think she had a boy or a girl when she gave birth to the complainant?
4. Did the complainant identify as a woman when he first met his ex-wife? Did the complainant’s ex-wife think the complainant was born male or female when she got married and had children with the complainant?
5. Did the complainant’s foundational Canadian identity documents (passport, citizenship papers) identify him as a boy or a girl 10, 20, or 30 years ago?
6. When the complainant applied for entry into the University of British Columbia in 1986 did he check the male or the female box?
7. If the complainant presented himself as a male when applying for university or when courting his ex-wife, why should the BCHRT or Defendant think the complainant was born a female?

Shouldn’t the defendant have a right to have an answer to these questions if the defendant is being charged under Section 7a and b of the BC Human Rights Code, because the defendant allegedly offended the complainant’s alleged gender identity?

In Christ’s Service
Bill Whatcott

Ms. Quail’s long letter not letting go of a BCHRT member’s decsion to not waste more time and money pandering to Ronan’s neurosis over a sentence referring to him as “born a male.”

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
female.”

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.

page 2

Demanding that the Complainant, a transgender person, prove her identity is
itself discriminatory

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
sufficient proof.

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

page 3

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

page 4

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
in law.

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.

page 5

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
are true.

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
Bill Whatcott
CAFE