Trans human rights protections were never meant to be used to force cis women to touch a penis that they did not consent to. But here’s the secret: they don’t.
If it needs to be said by someone who spent years urging their passage, trans human rights protections were never meant to be used to force cis (that is, non-trans) women to view and/or touch a penis that they did not consent to.
I have to admit to being a little nonplussed about having to say that. But then, there is a lot about the case of Jessica Yaniv that is troubling. Usually, when human rights laws are passed, time elapses and demonstrates for all to see that the nightmare scenarios that were dreamed up about those laws were irrational and unfounded. Instead, Yaniv took it upon herself to exceed the worst nightmare scenario, by a factor of 16. By that, I mean that Yaniv filed 16 human rights complaints against estheticians who declined to provide genital waxing services. And then, it gets worse.
And you may have to bear with me, because I do not have any prior experience with Yaniv, didn’t attend the proceedings, and the B.C. Human Rights Tribunal has not yet published transcripts of the actual hearings conducted to date — so I have to rely on the reporting thus far, which is mostly problematic and exhibits cause for distrust. And even with the transcripts, there will be the problem of deliberate misgendering, invalidation and gender essentialism presented, especially by the legal team representing at least five of the defendants, the Justice Centre for Constitutional Freedoms (JCCF, a religious conservative legal firm akin to Alliance Defending Freedom, which endeavors to use legal strategies to push laws to conform to religious principles).
There are some things that are fairly consistent in reports on the case. Yaniv approached several estheticians wanting a Brazilian bikini wax, and it appears that she used aliases (at one point even claiming to be pregnant). There is a pattern that could suggest an abuse of process. Yaniv has also been called out for inappropriate comments and allegedly predatory behaviour (prompting a trans community advocate to issue a warning).
Beyond that, reporting gets a little murky. For example, there are accusations about misrepresentation, but how much of that claim is about lying about the, um, terrain to be waxed — as opposed to framing that suggests that trans women inherently “misrepresent” themselves as women — is impossible to untangle. For now, though, we only have the second-hand reporting of websites whose journalistic ethic has been to start with an opinion and spin the information to fit — nearly all of whom want you to believe that being trans is a pivotal deception upon which everything else rests. The purple monkey dishwasher effect that results from this makes it hard to separate horrible truth from horrible distortion. And to make it worse, religious conservative media in the U.S. has piled on, eager to use Yaniv as a “poster gal” to frighten everyone about the prospect of a national LGBTQ+ human rights law (The Equality Act, currently awaiting action in that country’s Senate).
So while Yaniv is an obviously questionable figure, so are the Rex Murphys eager to seize upon her in garish sideshow fashion. Even a conservative author at the National Review mused that “it would scarcely be surprising if [Yaniv] turned out to be a troll” — although it would be more likely that with the constant barrage of washroom fearmongering about trans people over the past several years, sooner or later someone would be inspired to try it. But that, too, is speculative, and if we are to be consistent in accepting self-identification as the criterion, then reporting must follow accordingly (unless or until shown otherwise).
In any case, I must backtrack and sidestep Yaniv and the specifics of these incidents altogether, other than to acknowledge that there is a problematic individual at the centre of them. Instead, I’m going to be blunt about what trans human rights protections are, what they’re designed to do, what they’re not designed to do, and how I expect that all would play out in a situation in which a trans individual decides to target estheticians and try to get them to wax her junk.
Trans human rights protections were never meant to be used to force cis women to touch a penis that they did not consent to.
And here’s the thing that the bad faith coverage of Yaniv’s case is attempting to conceal: those protections don’t force cis women to touch a penis that they did not consent to.
Here’s the relevant section of the B.C. Human Rights Code:
Discrimination in accommodation, service and facility
8(1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.
(2) A person does not contravene this section by discriminating
(a) on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or
(b) on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.
Popular right-wing portrayals of human rights laws attempt to paint them as creating a “hierarchy” of “special rights” in which the desires of a minority always automatically trump the rights of the majority, no matter how unfair the demand is.
That is completely wrong.
Tribunal proceedings are designed to weigh the context of any given situation, no matter how convoluted. Following the specific text of the B.C. Human Rights Code, those proceedings should weigh whether or not there is a 8(1) “bona fide and reasonable justification,” how the denial compares to services that are 8(1)(a) “customarily available to the public” (that is, anyone else comparable), and has a specific exemption to be considered 8(2)(a) “on the basis of sex, if the discrimination relates to the maintenance of public decency.”
Genital waxing is an intimate service, and consent is an obvious necessity. If a person is unwilling to consent, it’s hard not to see that as a “bona fide and reasonable justification” — and the only way that might be contextualized differently could be if that service would be typically provided for someone else who has a penis (it is not necessary to invalidate and misgender trans women in order to assess that). And even though estheticians encounter nudity in their place of work, the public decency clause should also be relevant, if they have previously chosen to limit that nudity exclusively to a different set of genitalia than Yaniv’s. It’s noteworthy here that many — if not all — of the defendants work from their homes.
(A note on terminology here: the reason I am using language limited to penises and genitalia frequently is that even though in most cases people might regard them with euphemisms like “male parts” or “biologically male,” those phrases are inappropriate when pertaining to trans women, and actually designed to further bias and deliberately misgender. I refuse to play that game. While people opposed to trans human rights protections are taking the opportunity to argue that “biological sex is grounded immutably in a physiological reality” as a way of asserting that trans people defy reality, in fact, nobody’s denying physiology… only showing that the language we use to communicate it is typically — and traditionally — politically weaponized against trans folks, and needs to be reassessed. An additional note: normally, someone’s genitalia is no one else’s business — that hasn’t changed, except in cases like this, where they become obviously relevant.)
With this all said, the way in which service is declined can still matter. If the way it is declined indicates a refusal not because of concerns about a penis, but specifically because someone is trans (i.e. not knowing or caring about their genital configuration, and/or they would have denied service to someone who is a post-operative trans woman, a pre- or non-operative trans man and/or a non-binary person with similar geography), that is a bias, and would warrant secondary consideration.
And there is some indication of bias in some of the testimony that has come out — the boyfriend of one defendant sent harassing and threatening messages to Yaniv, for example. At least one other defendant is citing their faith as a reason for declining, so there may also be the question of religious freedom to be weighed. So there does appear to be a little more complexity remaining after the defendants’ right not to consent is sustained.
While I cannot speak for the B.C. Human Rights Tribunal — which may not release its decision until later this year — or clearly predict the outcome for certain, there is more than enough reason to believe that the tribunal has enough guidance to ensure that the ruling is balanced and fair. And if it seems (as conservative media are alleging) that trans and LGBTQ+ people, their supporters, and neutral media are “ignoring” the case, it is likely because they have faith in the process to do exactly that, and that there is no need to take a deep dive into this toxic soup of transphobia.
Whether the estheticians in these specific cases refused service because Jessica Yaniv is ostensibly trans — as opposed to because she had a penis — may prove difficult to untangle, but that is what the tribunal will have to do. There is also a case to be made that it might be reasonable to throw the cases out altogether — preferably with an explanation and clarification of the law, to avoid these issues in the future.
Although opponents of trans human rights protections like to pretend otherwise, nothing about those protections preclude anyone else from having a reasonable expectation of privacy. People can be accommodated without having others be exposed to unwanted nudity.
The human rights sky is not falling.
Mercedes Allen is a graphic designer and advocate for transsexual and transgender communities in Alberta. She writes on equality, human rights, LGBT and sexual minority issues in Canada, and the cross-border pollination of far-right spin. This blog also appears on DentedBlueMercedes.
Image: Screenshots/Mercedes Allen, waxing tools/Adobe Stock, with composition by Mercedes Allen
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