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.

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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.]