No clean hands in infamous transgender genital waxing case
In what was called “vexatious” litigation by one of the respondents, a decision has been made in the case of a transgender person who was refused genital waxing at various waxing salons.
In a decision by B.C. Human Rights Tribunal Member, Devyn Cousineau determined that being a “frequent litigant” did not equate to vexation. Cousineau felt the issue raised by JY (whose name is currently under publication ban) was of public interest to resolve but award costs to one of the salons because of a pattern of behaviour exhibited by the complainant.
JY filed separate cases against thirteen different salons for refusing to provide genital waxing after determining that JY had male genitalia. Any time a salon responded and retained a lawyer JY withdrew the complaint.
While trying to give the complainant the benefit of the doubt, Cousineau stated “I am now of the view, based on these new facts, that JY’s pattern of filing such a high volume of complaints and then withdrawing in the face of opposition undermines the integrity of the Tribunal.”
Of concern was whether or not the “gravity” of making a human rights complaint was being taken seriously. The tribunals are designed to be accessible and complaints can be filed at no cost. The system is designed to facilitate self representation.
The question of JY’s motives and whether or not the complaints were filed in “good faith” ended in an award of costs in favour of the salon. JY was ordered to pay $150.
This does not cover the legal fees incurred by the salons, the intention seems to be a warning shot that JY should reconsider filing complaints where there is no intention of following through to a full hearing.
The publication ban was left in place as JY claimed to be “in constant fear for her safety” after receiving death threats online and being bombarded by “fake food orders.”
Coustineau agreed with the salon that most of the online harassment was generated by other public posts JY had made on Facebook, unrelated to the case.
The decision stated that “one cannot openly seek the limelight, while at the same time retreating into namelessness, when it is convenient to do so”. The decision to grant anonymity may be revisited at a later date.
The lawyer for the salon, Honveer Randhawa, cautioned that “other similar businesses should be aware of JY’s conduct so that they do not ‘cave in’ to her ‘pressure tactics.’” It was alleged that JY was targeting salons run by vulnerable racial minorities and had also engaged in racial stereotypes about the lawyer throughout the complaint process.
One of the public interest questions Cousineau felt should be resolved was how waxing salons should deal with clients who exhibit gender fluidity. In the original request for service, JY had used a clearly male name then asserted a gender identity of female while verifying possession of male anatomy.
While not all transwomen have surgery to transition, businesses that offer services to specific anatomical parts have an interest in knowing exactly what they are being asked to wax.
The salon argued that JY claimed “that she can dress however she wants, use whatever name she wants, or use ‘any pronouns that I want at any point in time’ [and] that JY has been picking and choosing her gender identity”
While Cousineau was unwilling to call the case vexatious the decision did assert that “JY does not come to this issue with clean hands.”