Human rights case will determine whether the state can lawfully compel a woman to wax biological male genitals?

Source: Twitter

On July 17th, Devyn Cousineau, Member for the British Columbia Human Rights Tribunal reversed a year-long publication ban barring identification of Jessica (formerly Jonathan) Yaniv (@trustednerd). As a result, the media, until recently, had been referring to Yaniv only as “JY” because of, according to Cousineau, Yaniv’s “vulnerability as a transgender woman and the threats and harassment she is almost certain to endure if her identity is published in connection with these complaints.” Yaniv is the originator of 16 Human Rights complaints filed during the spring of 2018 against female aestheticians who declined to provide him with arm, leg, and genital waxing. The respondents either worked from their homes, most alone with small children present, or travelled alone to their clients’ homes.

Several complaints have been settled in mediation (meaning that Yaniv may have received financial compensation from the women) and three were withdrawn by Yaniv. Cousineau has previously written that Yaniv “does appear primarily motivated to meet the respondents in mediation,” implying he sought financial gain. She also noted a pattern of Yaniv withdrawing complaints when the respondent obtains legal representation and “mounts a defence.”

Cousineau is currently hearing all 13 remaining complaints and will be considering the nature of Yaniv’s proclaimed gender identity, the scope of service provided by respondents, if Yaniv’s gender identity was a factor in the denial of a service, and, if so, whether the respondents have a bona fide defence to a claim of discrimination and any redress, including compensation if required.

Cousineau, who stated in a previous ruling that “Waxing can be critical gender‐affirming care for transgender women,” recently consolidated three of the seven remaining cases in which the respondents were represented by Jay Cameron of the Justice Centre for Constitutional Freedoms (JCCF).

The BCHR Code provides protection for certain personal characteristics, including sex, sexual orientation, religion, gender identity, and gender expression. Gender identity and expression were added to the BCHR Code in 2016.

Commenting on the difference between sex and gender identity, Cameron said:

“The complaints against my clients all allege discrimination in the provision of a service under the BC Human Rights Code. Sex is a separate category from gender identity or expression under section 8 of the Code. That was a legislative distinction made by the BC legislature for a reason, and the normal rules of statutory interpretation mandate that the distinction has legal meaning. In other words, it would not make sense to interpret both grounds (which use completely separate terms) as being the same thing. Therefore, there is a difference in law between sex and gender identity/expression.

There is an obvious reason for this. Biological sex is grounded immutably in a physiological reality.”

The three consolidated cases were heard over the last few weeks. The respondents were Sandeep Banipal, proprietor of Blue Heaven Beauty Lounge, Sukhi Hehar Gill, and Marcia Da Silva. Cameron explained:

“…The complaints against my clients are serious, and have been a source of worry and consternation that only they are fully aware of. They are afraid for their family, for their livelihood. They are afraid of being branded as bigots when they did not seek any controversy and did not bear any ill will toward the Complainant. At least two of my clients have closed their aesthetics business as a result of the complaints. Some of them have suffered depression and profound anxiety that has strained their marriages.”

Contacting the respondents on Facebook Marketplace, Yaniv allegedly used both the names Jonathan and Jessica, and used stereotypically male pictures of himself as well as pictures of himself wearing makeup. He also used numerous fake profiles, including fake names and  profile photos. Cameron suggested that Yaniv targeted the respondents because they are racialized women who lack English skills (i.e. English is not their first language) and that Yaniv filed the complaints in bad faith and for financial gain.

Prior to his opening statement, Yaniv indicated that he will pursue costs of $500,000 against the respondents due to alleged but unspecified misconduct on the part of Cameron.

All the respondents testified that they didn’t understand what Yaniv meant in calling himself a transwoman, and, based on interactions with Yaniv, said they did not feel safe having him in their homes or travelling to his personal residence.

Banipal is a Sikh woman who operated a waxing business from her home in which her small children were present. Yaniv told her that he was on his period and asked if she could work around the string. Banipal testified that she has no experience waxing male genitalia. She said she would not be comfortable doing so or feel safe having an unrelated biological male in her home while she is alone with her children. Her Sikh faith and cultural beliefs preclude her as a married woman from touching the genitals of a man other than her husband.

Gill is a Sikh woman from whom Yaniv requested arm and leg waxing. She has a developmental disability, suffers from epilepsy, and was bullied as a child and teen. Gill uses a van to travel to her clients’ homes. Her father and husband both testified, with the assistance of a translator, about Gill’s special vulnerability, fears for her safety, and the role of her marriage, religion, and cultural beliefs in her life. Gill testified that she now suffers from anxiety and depression, and worries how this will affect her if she decides to have another baby.

Da Silva is originally from Brazil. She had just started her home business when Yaniv contacted her for a Brazilian bikini wax. Da Silva testified that she thought that identifying as a transwoman meant that Yaniv had undergone surgery and therefore would have waxed him, but was confused, as Yaniv originally misrepresented himself by communicating to Da Silva via the profile of a pregnant woman. She would have been alone with her four-year-old during Yaniv’s appointment, had she agreed to see him, and felt unsafe having Yaniv in her home. Yaniv allegedly contacted a gym Da Silva worked at and harassed her to the point that she sought help from the police.

Cameron said:

“Some of my clients are adherents to the Sikh religion. They believe that they marry for life to one husband, and that it is not permitted for a married woman to touch the genitals of a biological male (penis/scrotum) who is not their husband. That is a belief of both the female service provider and her husband. For the state to compel a woman to violate her conscience and religious rights through enforcement of the provision of an intimate service of this nature would be a gross infringement of her and her family’s constitutional rights.”

Angie Barnetson, a woman with 29 years of experience as an aesthetician who operates her own salon providing male waxing, testified as an expert witness for the respondents. She explained that waxing male and female genitals is very different and that an untrained waxer could cause serious injury.

She explained that waxers are required to hold and manipulate a client’s penis and scrotum. Men often get erections and many ask for sexual services. When Barnetson refused to provide sexual services, she said they would often become very angry and intimidating. She has been called a bitch, a slut, and a cunt. She further testified that masturbation is not uncommon.

As a trainer at Blanche Macdonald, Barnetson explained that male genital waxing is not taught due to the youth of some students and/or their religious beliefs.

Cameron summarized the key issue at hand, in terms of the outcome of these complaints, saying, “These cases deal with a physiological reality: the Complainant has male genitals.” He went on:

“Given this reality, the question in these cases is: can the state lawfully compel a woman who does not wax biological male genitals (penis/scrotum) to provide this service, and punish the individual for refusing, because the customer identifies or expresses as female? Frankly, and with all due respect, that would be an act of tremendous oppression unheard of in Canadian law to this point. It would be a very significant infringement of the security of the person of the service provider.”

Cameron explained that, “Waxing genitals is a very intimate service, as the expert in the case, Angie Barnetson, testified.”

“The demanded service raises a number of compelling issues: the personal comfort of the female aesthetician, her training, her religious and cultural beliefs, her personal safety in her workplace (in most of these cases the demanded service takes place in the service provider’s home, and the service provider is alone or with only small children present), etc. Section 7 under the Canadian Charter of Rights and Freedoms protects the security of the person of the service provider from unlawful state infringement. Section 2(a) of the Charter protects her religious beliefs. These are very significant protections for service providers.”

In his opening statement and testimony, Yaniv claimed, “I embody all the qualities of a female” and said he has known he was a girl since age six, because he was a “diva” and liked to “prance” around the house. In other testimony, Yaniv said he uses tampons and claimed to be intersex, explaining that intersex means “both sexes together.” When told by Cameron that what he should have sought was not a Brazilian, but a “Brozillian,” Yaniv claimed he had female genitalia as well as male genitalia, but that “one set” is “deformed.” When asked which set of genitals were deformed, Yaniv declined to say. Cameron called this a “fabrication” and said “You’re attempting to mislead the Tribunal.”

Yaniv questioned why the respondents should be able to use their religion and cultural beliefs “against the LGBT” and claimed that British Columbia is becoming a neo-Nazi state.

Yaniv’s mother, Miriam, was his sole witness. She testified that Yaniv was both a boy and a girl as a child, said he started his period at 13 or 14 years old, and that he suffered from extreme abdominal cramping. Miriam Yaniv repeatedly “misgendered” her son, calling him “a boy of the LGBT” and saying he has “grown into the boy he always wanted to be.”

When asked to testify about the impact the denial of “gender affirming” services had on her son, Miriam Yaniv instead testified that she had being impacted, herself, saying that she had threatened suicide, and that she was going to exhume her deceased husband and another family member and return with them to Israel.

Pressed by her son, Miriam declined to discuss the impact on his health, citing privacy concerns for him. Asked by Yaniv to rate the effect of reported harassment of him on a scale of one to 10, Miriam replied, “11,” and said to her son, “Are you a human being right now? No you are not!” Both Yaniv and his mother agreed that “gender affirming care” was necessary to validate Yaniv’s gender identity and his supposed sex as female.

Yaniv and his mother repeatedly complained that people of other cultures are trying to impose their values on Canadians, saying that when “immigrants” move to Canada, they need to conform to Canadian values and learn to speak English as she and her son did. Miriam Yaniv said that the translator provided for Gill’s father and husband was a waste of her tax dollars.

In her ruling lifting the publication ban, Cousineau found that Yaniv was using his own Twitter account to tweet about these complaints (under his own name). Cousineau referenced a tweet reading:

“What ‘huge problem for women’ am I causing? Asserting the rights of the LGBTQ? That’s not a problem. You know what the problem is? People who come here with hateful views using their religion as a shield to spew hatred and refuse service on religious grounds.”

Counsineau explains, “This is a reference to the balancing of interests raised in Ms. Yaniv’s waxing complaints, between the rights she is asserting as a transgender woman and the defence of some of the respondents based on religious or cultural objections to providing waxing services to people with a penis.”

Cameron agreed with the decision to lift the publication ban, saying:

“This is a public matter with broad public implications. It is appropriate that the Tribunal process take place openly. Absent exceptional and demonstrable circumstances, people who make complaints under the Code against other people should have to do so publicly to prevent abuse.”

Written closing arguments are to be submitted by the end of August. Member Cousineau will hear all cases before making her ruling(s).

Chelsea B. is a radical feminist and mythological biological female living in Vancouver.

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