Morgane Oger, a trans woman, was attacked and vilified by the Christian transphobe Bill Whatcott when she stood for the Legislative Assembly of British Columbia. He called her deceitful simply because she is trans, and distributed flyers saying that anyone who supported her would go to Hell, “The lake that burns with fire and sulfur”. So she sued him in the British Columbia Human Rights Tribunal, supported by the West Coast Women’s Legal Education and Action Fund (LEAF).
LEAF supported her as a woman, drawing the tribunal’s attention to the experience of politically active women across the world, which can include being targeted for gender‐based harassment, as well as threats and acts of violence. The aim of such attacks is to “discourage women from being politically active and exercising their human rights and to influence, restrict or prevent the political participation of individual women and women as a group”. Their support warms me. Whatcott would not have attacked Ms Oger simply as a woman, but women come out in solidarity with her.
The judge writing the decision, Devyn Cousineau, quoted Whatcott in a particular way: “I definitely didn’t want [her] to get elected and I do want to see [her] disinvested of all political power and would rather [she] do something else with [her] time.” That is, she took Whatcott’s voice from him, by silencing his malice. Why should Whatcott’s use of male pronouns be used in a public legal judgment? Whatcott was unmanned. In summing up, he argued that his right to “Life, liberty and security of the person” under the Canadian Charter of Rights and Freedoms was violated. It was too late to introduce such arguments, the judges ruled, but anyway the argument had no merit. They did not accept there was a “serious state-imposed psychological stress”.
Also showing the obsession of the transphobes was Kari Simpson, previously Whatcott’s assistant representative. She was sacked, but went to the public gallery, and asked to intervene in the case on the last day of the hearing, to attack Ms Oger’s “tactics to silence voices” and give evidence. The role of intervenors is to assist with legal issues, and she too was silenced. She shows the transphobes’ self-righteousness and arrogance, and their desperation when their hate is named and resisted.
Whatcott’s argument was remarkable in that he did not mention the Supreme Court case where he lost a similar argument about gay people. The tribunal’s time was wasted by his repeating arguments that had lost before in that case, and also by repeating claims on which the tribunal had adjudicated, such as what evidence was admissible.
At the tribunal, he wore a t-shirt with a pre-transition photo of Ms Oger on it. The tribunal told him this was improper, because the tribunal should be a safe space to air issues of discrimination, and he replied, “I see this Tribunal as an affront to freedom of speech, freedom of conscience, and is a completely inappropriate process”.
The purpose of the law is to “create a climate of understanding and mutual respect”. The tribunal repeatedly required Whatcott to use Ms Oger’s name and pronouns, and he refused. He would not even call her “The Complainant”. The tribunal found this deliberately disrespectful. He complained about the judges’ use of female pronouns, claiming it showed bias against him, and that it was as ridiculous as if they had ordered him to call Ms Oger “a tomato, a dog, or a cat”. The tribunal said,
For trans and gender non‐conforming people, being properly ‘gendered’ by the service providers they are required to interact with is a critical part of their ability to participate with dignity in the economic, social, political and cultural life of the province. The tribunal process should honour the dignity of the people who come before it.
How did Whatcott feel when Ms Oger called him a “Christian Jihadist”? For the purposes of the Tribunal, I was devastated and crying. For the purposes of me, I found it to be entertaining. So he showed his contempt. Possibly he does not believe the feelings of those he attacks are hurt- he cannot empathise, though his actions show the distress of the privileged when they are called out.
The tribunal recognised the claimant’s bravery: Most people would not have been able to withstand the level of discrimination that Ms. Oger faced during the Tribunal’s hearing. They should not have to. To her immense credit, Ms. Oger comported herself with grace and dignity in the face of the persistent efforts to insult, undermine, and humiliate her.
Whatcott compared her to a trans woman who was a sex offender. The judge found that associating her with serious criminality in this way is hate speech.
In his blog and social media, Whatcott attacked the judge, the tribunal, Ms Oger’s counsel as a “lesbian lawyer” which he believes to be derogatory, and Ms Oger. That might deter less resilient claimants than Ms Oger from pursuing her claim. The tribunal ruled that they should tolerate “public, forceful, and uncomfortable criticism” and that attacks on the tribunal and judges did not affect the integrity of the process, but the attacks on Ms Oger and her counsel prejudiced their participation in the complaint, and therefore awarded costs against him of $20,000, in addition to the damages of $35,000. Costs in these cases are a punishment for bad conduct.
The Canadian Association for Free Expression intervention was “unhelpful” said the judge- “inflammatory, derogatory, disrespectful and inappropriate”. It argued Ms Oger was a man, and called her a transvestite. Its written submission, submitted late, was “65 pages of dense, disorganized and barely intelligible text”.
The judge discusses how free speech should be restricted by rules on hate speech and discrimination, and I will return to this. The decision in full is here.