WATCH: Non-binary waitress awarded $30,000 by Human Rights Tribunal for being 'misgendered'

In addition to the money awarded to Nelson, the tribunal also ruled that the restaurant must implement a pronoun policy and provide both human rights and diversity, equity, and inclusion training for all staff.

Amy Eileen Hamm Montreal QC

The BC Human Rights Tribunal is at it again. In October, the tribunal awarded Jessie Nelson, a biological female restaurant server who uses "they/them" pronouns, $30,000 as "compensation for injury to their [sic] dignity, feelings, and self-respect." The tribunal concluded that Nelson was discriminated against on the basis of gender identity and expression, which is prohibited by the BC Human Rights Code.

This ruling came from Devyn Cousineau, the same tribunal member who brought international notoriety to the BCHRT for entertaining discrimination claims against minority, immigrant women over their refusal to wax a trans woman's testicles. Before the media scrutiny over the waxing cases, Cousineau referred to the waxing of the testicles of gender non-conforming biological males who identify as transgender as "critical gender-affirming care."

Though Cousineau proclaimed in this recent decision that Nelson was discriminated against in Nelson's non-binary identity, Cousineau downplayed offenses that Nelson committed. Nelson had slapped a colleague on the back in anger. Other employees described this as a physical assault. Yet Cousineau stated that "there is no evidence that the contact… could fairly be characterized as violent."

Cousineau, however, sees a greater threat in the use of language that in actual physical violence. In the decision, Cousineau wrote about "the power of language" and how not using a person's preferred pronouns is "extremely harmful." She also wrote that in "Nelson's case, there was an added layer of harm by the implicit messaging that [the defendant] regarded and treated them as a woman. This undermined, erased, and degraded their gender identity in their place of work. This is discriminatory."

Nelson was fired from her position at Buono Osteria after four weeks of employment, during her probationary period, when it is legal to fire an employee without cause. Her employer fired her during a phone call. As the ruling outlines, Nelson kept her former employer on the phone for 20 to 30 minutes, demanding to know why she was being fired. The employer eventually made comments about Nelson "coming off too strong" and being "militant." These comments made Nelson's human rights complaint possible.

In addition to the money awarded to Nelson, the tribunal also ruled that the restaurant must implement a pronoun policy and provide both human rights and diversity, equity, and inclusion training for all staff. Cousineau also "encouraged" the restaurant to update all existing policies with "non-binary, gender neutral language."

Buried within her ruling, Cousineau wrote that she has "a hard time imagining that the restaurant would have responded in the same way to other serious complaints of discrimination."

I find this telling; and I agree with Cousineau here: Because not referring to someone as "they" is not a serious form of discrimination. It seems that Cousineau has subconscious awareness of this – or why the conjecture and backhanded compliment amidst what is otherwise 41 pages of excoriating the defendants for not exalting Nelson's pronouns?

I refuse to pretend that not calling an obviously female person "they" compares to serious workplace discrimination; you know, the type females often face because of pregnancy and child-rearing, or the type related to racism or homophobia.

Bespoke pronouns are a trend for navel gazers or those who've fallen for the postmodernist lie that they can escape their biological sex. Not having your personal sense of identity validated by everyone around you is not discriminatory. You cannot be "erased" by another person's perception of you, nor can you police everyone's thoughts and stop them from seeing your biological sex, which humans generally determine immediately and with great accuracy.

If women like Nelson find it painful to be seen and treated as female, I sympathize. There are countless reasons a woman might feel this way. But the solution likely lies in therapy, not in vain attempts to abscond from womanhood or in behaving like an insufferable tyrant at your new place of work.

I don't blame the staff for not wanting to work with Nelson; no one wants to spend their workday worrying that a colleague will lecture you in front of customers for referring to their group as "guys" (yes, Nelson did this to a colleague).

There are two injustices in this case: the first is that a small business is forced to spend tens of thousands of dollars as punishment over a discrimination that didn't happen during the most financially challenging time small businesses have faced in decades; and the second is that the BCHRT has downgraded physical violence to a justified, harmless reaction to hurt feelings over pronouns, while words are elevated to a "powerful" source of extreme harm. Ridiculous.

The BC Human Rights Tribunal is a farce and international embarrassment. Shame on them.


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