Jamie Sarkonak: At a human rights tribunal, it's better to be a transwoman
The B.C. Human Rights Tribunal went out of its way to accommodate a trans inmate, but wouldn't even give a hearing to a female victim of sexual violence
Human rights tribunals have drastically expanded society’s obligations to accommodate transwomen — but biological women seeking sex-based protections aren’t extended the same courtesy.
One of those regular women, known only as J, had moved into transitional housing on the women’s floor of a B.C. Salvation Army building back in the fall of 2020. She lived there for two years without issue, but when her tenancy ran out in 2022 and she hadn’t found a new place to live, the Salvation Army extended her term and offered to place her in a different building. The problem: that building was trans-inclusive. For this, J filed a human rights complaint.
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J had experienced sexual violence from men before and suffered from post-traumatic stress disorder. She did not want to be housed with intact male tenants, no matter how they identified. She believed that the Salvation Army had a duty to provide her with such a living space. She refused to move to the new building and the Salvation Army extended her stay in her existing unit multiple times as she looked for new housing. At the end of 2022, she moved out by checking into a hospital.
The Salvation Army, in turn, told the B.C. Human Rights Tribunal that J’s complaint was based “only on her transphobic views, which cannot ground a complaint of discrimination under the (B.C. Human Rights) Code.”
On March 27, tribunal member Amber Prince dismissed J’s complaint without a hearing, writing that J had “no reasonable prospect of proving she was adversely impacted by the Salvation Army” and therefore “no reasonable prospect of proving discrimination.”
Prince largely chalked it up to a lack of evidence: J had “not pointed to any actual adverse impact she experienced” as a Salvation Army tenant; she could not prove that the Salvation Army ignored her because staff corresponded and met regularly with her; and the end of her two-year residency term had been agreed upon from the beginning.
“Ultimately, J’s complaint is about her beliefs and speculation about trans women, and not actual adverse impacts she experienced while accessing Salvation Army housing and services,” Prince wrote. “Her speculative beliefs, without more, are not enough to show an adverse impact.”
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Prince ruled the other way in 2021 when Makayla Sandve, a trans-identifying inmate who was jailed in B.C. for three months while awaiting trial, pursued a human rights complaint for not being housed with women.
Sandve did have more material to substantiate claims of hardship, including allegations of sexual harassment by male inmates, and, as a result, having to spend long periods in isolation. The case had other problems, however: Sandve only began identifying as a woman one month into the three-month jail stint. B.C. Corrections barely began the process of providing cross-sex medical treatment, according to the decision. Sandve was a fully intact male with an “extensive criminal record,” and it’s not clear whether hormone treatments had even commenced.
To Prince, this was a problem: “I appreciate the fact that Ms. Sandve did not initially self-identify as female at the start of her incarceration (Oct. 17, 2017) at (the pre-trial jail). However, when Ms. Sandve did self-identify as female in November 2017, B.C. Corrections’ transgender policy (then in force) and obligations under the code were triggered.”
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Prince continued, “I am left to wonder: Why was Ms. Sandve not transferred to (the women’s facility) as soon as possible, per the transgender policy? What were the unresolvable ‘overriding health and safety concerns’ that justified Ms. Sandve’s segregation within a male jail (for over two months) after self-identifying as female?”
The fact that Sandve had a lengthy criminal record didn’t move Prince, either, because “cisgender women are not incarcerated based on the extent of their criminal records or seriousness of charges against them.” In other words, serious crimes don’t keep biological females out of female prison, so serious crimes shouldn’t keep transwomen out of female prison, either.
Sandve also demanded to be frisked by female corrections officers, which was refused (Sandve alleged that one female officer said, “Eww, I’m not doing it,” in response, and said the inmate wasn’t really transgender). Requests for female undergarments were honoured, but they did not fit.
“Sandve articulates a number of adverse impacts she says flow from B.C. Corrections’ conduct,” wrote Prince.
“She describes ‘having a hard time’ and feeling ‘ugly’ without clothing and items needed to express her gender. In her human rights complaint, she describes a loss of dignity and self-respect related to her gender not acknowledged and not treated as a female with respect.”
B.C. Corrections asked Prince to dismiss Sandve’s complaint before a hearing, arguing that its accommodations were reasonable. Prince did not agree.
Sandve was given the dignity of a hearing, while J was not. The concerns of a trans-identifying complainant were treated with great care, while those of a biological woman were dismissed with little thought. Indeed, one gets the sense that J had to actually live with transgender inmates and experience anything from discomfort to trauma from it before the human rights apparatus would take interest. B.C. Corrections, on the other hand, couldn’t segregate the sexes without undergoing a hearing.
It’s clear the law needs to be reworked: female spaces need to be protected — not just from male-bodied intrusions, but also from the creative reasoning by decision-makers who got us here in the first place.
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