We got served! William Whatcott filed a petition for judicial review two years ago and finally served it on our client earlier this week. We’re gearing up to defend this important victory for trans equality in court.
Whatcott appended a full transcript of the proceeding to the petition, so we’ve had a chance to revisit some of what happened during that hearing. There are some highlights and some painful lowlights, but for now, here is our opening statement setting out the issue at the heart of this case: the right of trans people to full personhood, lived in peace.
OPENING
When a new human being comes into the world, the adults around it look at its body and decide for it whether it is a boy or a girl. They mark down an M or and F and everyone goes on as though that is the final word on who that tiny person is or might grow up to be.
Lots of people get a letter marked down that more or less matches who they understand themselves to be, and they too go on accepting that M or F as describing who they are.
Some people don’t. Some people get a letter that feels wrong. That M or that F chafes, or stifles, or causes deep shame.
They may discover at a young age or maybe not until much later in life, that that letter isn’t the right letter for them. That who the adults around them told them to be as a kid and even into adulthood, isn’t who they really are.
But whenever a person comes to terms with who they really are, not just what it says on their birth certificate, not just who other people tell them they are supposed to be, they are free, in this province and across this country, to be themselves.
Transgender people are equal under the law.
Bill Whatcott doesn’t agree with that law. Mr. Whatcott thinks that people should not be free to be themselves. He thinks that the law, and this Tribunal, should prioritize his right to insult, denigrate, and promote the hatred of transgender people above the right of transgender people simply to exist at peace in the world.
In 2017, Mr. Whatcott distributed a flyer calling on the public not to support Ms. Oger as a political candidate because she is transgender.
Imagine a flyer that said, don’t vote for this candidate because she is Chinese. Don’t vote for that candidate, because he is Indian. Don’t vote for a candidate who uses a wheelchair, or who is Jewish.
People are allowed to campaign for or against any candidate for a whole range of valid reasons. That’s important to our peaceful democracy. BUT a personal characteristic that is fundamental to individual human freedom is not a valid reason in a political campaign.
Mr. Whatcott’s flyer said that transgender people don’t exist. They are lying about who they are, to themselves and to the world. As you’ll hear in argument, this is a pernicious stereotype about transgender people, and at the root of transphobic hatred and violence.
Mr. Whatcott’s flyer associated transgender people with diseases, disgusting diseases, and with immorality, violence, and social problems. His flyer urged readers not to support transgender people, and that if they did, they were morally equivalent to liars and murderers.
Mr. Whatcott’s words matter. Words like his embolden people who would abuse, beat, and murder transgender people for being who they are.
Mr. Whatcott can think whatever he likes about Ms. Oger. He can privately communicate any horrible thought he has about her to anyone in his life. He can publicly oppose her candidacy on the basis of her platform – maybe he thinks she wants to raise taxes too high, or doesn’t like her position on climate change.
What he can’t do is attack her very right to be who she is, a transgender person, in a way that undermines her equality under the law and risks exposing her, and other transgender people, to hatred and contempt.
Ms. Oger’s complaint is brought before this Tribunal under section 7(1)(a) and section 7(1)(b) of the Code. Under 7(1)(a), Ms. Oger says that Mr. Whatcott’s flyer indicates discrimination against her, because it urges people not to support her based on her protected characteristic: her gender identity and expression. Under section 7(1)(b), Ms. Oger says that Mr. Whatcott’s flyer is likely to expose her and others like her to hatred and contempt on the basis of gender identity and expression.
Ms. Oger will testify about the impact that Mr. Whatcott’s flyer had on her dignity, feelings, and self respect. You will hear that the flyer hit her at a time when she was especially vulnerable: she was in the midst of a hard-fought election campaign, and highly sensitive to this type of attack. You will hear that the flyer went to the core of what she feels most strongly about herself, who she is as a woman.
So this case is about Mr. Whatcott’s flyer, but it is about more than this one flyer attacking one individual, Ms. Oger. It is about the message that the Tribunal, in upholding the rule of law and advancing the purposes of the Code, will send to transgender people across the province. This case asks the Tribunal to affirm that transgender people are equal under the law – that just because some people view their very existence as controversial or even extremist, that doesn’t mean transgender rights are worth less than anyone else’s rights. It asks the Tribunal to uphold the right of all transgender people, of everyone in British Columbia, to this most basic, most personal human freedom: to simply be themselves.