What do human rights commissions do? The other day I decided to find out. I dropped in on a hearing at the Human Rights Tribunal of Ontario, where the really serious cases wind up.
This case involved a complaint by two women against Dr. Robert Stubbs, a plastic surgeon who has a private clinic in Toronto. Dr. Stubbs is best known for surgically enhancing the genitalia of people who are dissatisfied with their private parts. The women complained to the human rights commission after he turned them down for surgery.
On what grounds, you may ask? Okay, here's the wrinkle. Both women are transsexuals. They used to be men, but now they're women. They wanted Dr. Stubbs to do procedures (a labiaplasty and a breast augmentation) that are performed only on women. He told them he doesn't do surgery on transsexuals. And that, they claim, amounted to discrimination under the human rights code. He denied them service because they were transsexuals.
As the hearing got under way, I wondered what Dan Hill would have made of it. Mr. Hill was Ontario's very first human rights commissioner, back in 1961. Those were the days when people of colour faced widespread discrimination in housing and employment, when Jews were barred from the leading law firms and clubs, when women weren't allowed to hold the same jobs as men, and gays were ostracized and even jailed. I doubt that Mr. Hill had ever heard of labiaplasty, which is a type of surgery to trim back vaginal lips that are too droopy or protruding. But, hey! Times change.
First up on the witness stand was Michelle Boyce, a statuesque 38-year-old with a lush cascade of curly black hair and the breaking voice of an adolescent male. She described herself as intersex - someone who'd been born with both ovaries and a penis. Although raised male, she said she'd always thought of herself as a woman (despite the fact that in her 20s, she had married and fathered two children in the customary way).
In 2001, she had sex-change surgery in Wisconsin, where a doctor fashioned a neo-vagina from her penis and the inner lining of her urethra. This procedure, she said, promised the best sexual outcome, "and the cosmetics were the best that I could see." But the surgery wasn't perfect. One side of her new labia was bigger than the other, and she had a flap of skin that made sex painful. "I was having some issues I wanted resolved with my genitals."
Then she read an article about Dr. Stubbs and labiaplasty. "It was exactly what I was looking for," she said. "And it quoted a good price."
It wasn't until she was in the examining room that she bothered to mention she was a post-operative transsexual. At that point Dr. Stubbs (rudely, she says) ended the consultation and invited her to leave. "I chased him down the hall and grabbed his arm and said 'You can't do that.' But he walked away." Shattered by his rude dismissiveness, she bawled her eyes out on the front steps, then lodged a complaint with the human rights commission that very same day. Later she got the labiaplasty in Wisconsin, at much higher cost. She wants to be compensated for the price difference, as well for mental distress.
That was back in 2003. Since then, matters have proceeded at a glacial pace. The complaints process is cumbersome, and human rights commissions have been plagued with backlogs. Each complaint must be investigated. The respondents (in this case, Dr. Stubbs) must be notified and present their defence. Mediations must occur, and remedies sought. If all that fails, the commission can choose to send the matter to a full-blown hearing, as seen here. The complainants get a free lawyer from the human-rights tribunal to argue their case, but the respondent is on the hook for his own legal bill. Dr. Stubbs's medical insurance fund is picking up the tab for his lawyer, who's probably billing $500 an hour.
During the lunch break, I had a sandwich with Michelle. Her gestures were feminine. But up close, she looked more like a guy than a girl. She had a man's big hands, big teeth, broad-bridged nose, and coarse facial skin. She told me she'd be happy to settle for $30,000 or $40,000.
Her friend, Jenn Finnan, is the other complainant in the case. Ms. Finnan had been undergoing hormone treatment prior to sex-change surgery, and wanted Dr. Stubbs to augment her breasts so they wouldn't be going up and down all the time. Jenn, who's 45, doesn't look or sound like a guy at all. She looks like a tall, cheery, middle-aged, overweight woman with thinning blond hair. I liked them both, even though I thought their sense of outrage and entitlement - fuelled for years by the administrative apparatus of the human rights commission - was absurd.
Dr. Stubbs's defence is straightforward. He had no surgical experience with transsexuals. The chest structure and post-operative genitals of transsexuals are not the same as those of biological women, and thus, the complainants' transsexual status was medically relevant. Finally, like any doctor who performs elective surgery for a fee, he has the right (and duty) to decide who is and isn't eligible for his services.
By now you may be asking why we've wasted so much effort on this case, which ought to be a slam-dunk for Dr. Stubbs. The answer is that human rights commissions have become self-perpetuating grievance machines. Ontario's commission seems to have regarded this case as a landmark test of transsexuals' access to medical care. Clearly it is no such thing.
Indeed, after lunch the case began to collapse. After a bit of cross-examination, Michelle conceded that she wasn't, after all, insisting that Dr. Stubbs was obliged to perform the services requested, even if he thought he wasn't qualified. And there went the basis of nearly the entire claim.
What's left? Well, he was rude. He said hurtful things and hurt her feelings. The hearing has now adjourned for a few weeks, in hopes that further mediation may find a way to soothe them.
Over lunch, Michelle told me that the demeaning treatment by Dr. Stubbs "had a profound effect on the rest of my life." After that, she became a full-time activist. Today she has a government-funded job investigating the health status of the transsexual population. She and Jenn also have a small business that's hired by big companies to do diversity awareness training, especially around transgender issues. Business is good. They get a lot of work courtesy of human rights commissions.