OPINION CHECKļ¼ Confusion at the swimming pools
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Summary
Trans women with male genitals should not be allowed in the same change room as women and their children, argues Alison Pajovic, a constitutional lawyer with the Justice Centre for Constitutional Freedoms (JCCF) in Calgary, Alberta.
Transcript
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Good day. We live in confusing times. Men who identify as women are starting to invade women's
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spaces. They're competing in women's sports. They read to children in drag, and now they are moving
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in to women's changing rooms at swimming pools. What is going on? To try and make some sense of
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this, we are pleased to welcome here today Alison Pajovic, a constitutional lawyer working with
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the Justice Center for Constitutional Freedoms. Ms. Pajovic specializes in constitutional and
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human rights issues. Welcome to the Western Standard, Ms. Pujovic. Thank you very much for
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having me today. You are very welcome. Ms. Pujovic, I think the issue here is the use of bathrooms,
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not the legitimacy of trans people themselves, each to their own, right? Absolutely. The issue
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here that we've been hearing about in the media and parents complaining is that there are some
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trans women entering women's bathrooms who have not completed gender reassignment surgery,
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so they still have male anatomy. The issue isn't whether they should be treated as women,
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whether they should be treated differently, but rather it's the effect on women and children
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when they're being exposed to trans women's male anatomy in a changing room. And these are spaces
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that have previously been reserved for individuals with female anatomy,
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and that is what women and female children expect
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And this, of course, has been the case for thousands of years.
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Nobody has disputed the fact that there are men and there are women,
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and for some purposes, they need their own space.
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Now we're finding that the law doesn't see it that way.
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Well, if you take a look at Section 4 of the Alberta Human Rights Act, as of 2017, I believe
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is when it was last amended, it now protects gender identity and gender expression. So,
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you can't discriminate or deny a person or class of persons accommodation or access to a facility
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because of a variety of individual characteristics such as race, color, gender, age, and now
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gender identity and gender expression are included in that section of the Human Rights Act.
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So the human rights legislation protects the rights of trans women to access the pool,
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but in my professional opinion there is a gray area here because municipal pools,
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in my view, could bar trans women with male genitals from using the same change room as women
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and their children. So why do you say that? Yeah, I say that because of section 11 of the Alberta
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Human Rights Act, and that provides a defense clause to a potential claim for discrimination.
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If a trans woman with male genitals complained, I can't access the women's changing room,
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that's discriminatory while the municipality such as the city of Calgary
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could have an argument using section 11 of the Alberta Human Rights Act which
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basically says that there hasn't been a contravention of the Act if there are
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reasonable and justifiable circumstances and in my legal opinion it is
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reasonable and justifiable to exclude anyone with male genitals from changing
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in a space that has historically been only for women to protect the comfort
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and emotional mental well-being of vulnerable female children and women and
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some women are victims of sexual assault so seeing male anatomy can be
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triggering for them. So this is a live issue, but I do believe that there is room in the Alberta
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human rights legislation for city pools to say no. I'm sorry, we're recognizing that you are
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entitled to your own space to change, but unfortunately, if you haven't physically
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transitioned into that you don't have female anatomy at the moment, you're not allowed to
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change in that space. You know, Ms. Pujovic, speaking as an unreconstructed product of the
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19th century, it does seem to me to be a peculiar thing that we should even be having this discussion.
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I'm looking at the legislation that you have provided here, and to me, no wonder people
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are confused about this. Everything we thought we knew six months ago, a few years ago, has
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been turned upside down. So, let me ask you, what happened? Why are we having to deal with this?
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Well, over the years, there has been an evolution in our society. Society is constantly progressing,
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and we've progressed to the point where there is continuing and ongoing and evolving recognition
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for marginalized groups in society. I guess that's a good thing. Absolutely, absolutely, and the law
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has kept up with that the supreme court of canada you know continues to be open to recognizing
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analogous grounds of discrimination and so you know in in recent times we've recognized as a
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society that the trans people trans individuals are groups that are being discriminated against
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and so the law has responded the courts have responded and we're seeing greater protections
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for that group just as we have for other groups in the past such as different racial minorities
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people with disabilities and now it's uh it's trans the trans community i see i i mean i i hear
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what you say but i also have the conversations of people who read what we put out in the western
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standard and i have to ask you this in a very a very direct way does the law actually allow
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Now, trans people who are not fully transgendered to use washrooms of the sex they identify with.
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People just can't wrap their heads around that.
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It just seems like the decent thing to do is not to do that.
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In other words, a biological male gets undressed in a woman's changing room only a few years ago.
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As I mentioned earlier, it's that human rights legislation, and I believe from reading an article from your news organization, that a parent complained about their child witnessing an individual with male anatomy walking around the women's changing room.
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and I read that the city of Calgary responded and said well we can't do
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anything because you know there's human rights legislation protecting that
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person and giving that person the right to change in that bathroom but as I've
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said there is a defense clause and so if a complaint was made to the city or
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another municipality about this I do believe there is an argument that a
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human rights tribunal could consider and I think it would be successful that it
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reasonable and justifiable to exclude somebody with male genitals from using
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the change room to protect the most vulnerable in our society who are our
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children. So the common sense solutions seem to just use a use one of the washroom
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stalls or use I guess most most facilities these days have family
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changing room a private space so the person the trans person could use one of those private spaces
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and not intrude on the experience of the of the of the changing room that anybody else has
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is that a solution absolutely i i think that there has to be a safe space for vulnerable female
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children and women who want to go to access these public facilities and are not expecting to see
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somebody with with male anatomy and it's not about hating a trans person whatsoever it you know you
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can you can identify as a female but if you still have male anatomy that's going to have that could
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have an effect and we know it has an effect on some vulnerable people we know that there was a
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a teenage girl recently who complained um i read about it on your news organization that she was
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glad you're reading the western standard that's right she was traumatized when she was changing
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in a calgary changing room at a pool and there was a trans woman walking around
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fully nude and she was traumatized by that so this is definitely an issue that needs to be resolved
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and unfortunately where the law has done a good job of protecting minorities
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such as trans people it has not taken into account the effect on vulnerable
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citizens such as young female children or young women in these facilities and
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so there's competing interests here absolutely there's competing rights and
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but here's the confusion that I hear over the phone,
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Let's say you're a mother who encounters this situation.
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You're in the changing room, you have your daughter with you,
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and there's a person in there with a male anatomy
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Walking around, at any rate, undressing, it's beyond awkward.
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You ask the person to leave, but that person refuses.
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Say, I'm trans, I have a legal right to be here.
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We've already established that there is a legal right.
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Well, I know that there have been calls to police about this happening in Calgary,
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and to my knowledge, the police have not charged anybody right now, and if you look at the
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offense of indecent exposure, which you might think that this might fall into that category,
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indecent exposure requires exposing oneself for a sexual purpose, and merely changing in
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a changing room that you are otherwise lawfully allowed to access in my view would not be
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construed as being an act to an act for a sexual purpose so you know unless somebody whether it was
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someone of any sexual orientation was was doing something lewd in a changing room
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you really don't violate that provision here and my guess is that's why the police haven't
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made any charges yet because if you're just changing in the changing room and you're allowed
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to be there that doesn't breach the provisions of the criminal code but i i just want to reference
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a 2019 case out of bc where a trans woman named jessica yaniv made human rights complaints against
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various owners of waxing salons because Yaniv wanted the owners of the salons to wax her
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male body parts, and the women of multiple salons refused to do so, and the BC Human
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Rights Tribunal dismissed Yaniv's complaints against the salons and the salon owners and
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found, and I quote, a scrotum is different than a vulva, regardless of the gender of the person
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it is attached to. The tribunal also took into account the testimonies of various salon owners
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that they did not feel comfortable waxing Yaniv's male anatomy, and also found that there's an
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element of consent. There would have to be consent by the owners to wax anatomy that is different
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from what they advertise for which is female anatomy so again I want to stress here it's very
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important that we're not talking about hating on anybody what we're talking about is the fact
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that unless there has been a physical gender reassignment surgery someone in the female
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changing room young women and children are going to see male anatomy in these situations
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and they don't understand that this trans woman identifies as female,
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And that is having an effect on women and children
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and we hear about that kind of thing through the work that we do.
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So this is an issue and there are conflicting rights here
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Do you take some encouragement for positive change
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Well, yes, I mean, it's a recognition that there has to be a line drawn, and we have
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to respect the rights of minorities, including trans women, absolutely, but there are differences
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in anatomy, unless someone has had surgery, that the tribunal has recognized, and that
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That is a factor, and there's a reason, and the tribunal found this is a reasonable reason
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for refusing that service, is that the anatomy is different.
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And so, I can see that being somewhat analogous to a situation like this if it ever got into
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a tribunal complaint situation, or if it ever got to court, because there are competing
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rights here, and unfortunately, the rights of children are not being looked after at
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So, yes, what I'm hearing you saying is if you're actually in this situation, there's not an awful lot you can do.
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But if you want to work for change, what are your options?
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Well, what I would tell parents at this point, I would tell them about the human rights legislation,
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which protects trans women's rights to access that changing room.
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but you know parents are free to make a complaint to the city of calgary or whatever municipality
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there they live in um if if enough people come together and explain i don't know that it needs
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to be explained but you know write a letter make a phone call talk to your mla uh you know talk to
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the city about how this is affecting their children how this is affecting them they
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want to have a space where they can change where they're not going to be witnessing and exposed to
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anatomy of a male and that that unfortunately we're faced with these conflicts so the city
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of calgary owns the swimming pools and the changing rooms that go with them at the provincial level is
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Is there, the province owns the Alberta Human Rights Act, is there a way of changing that?
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Absolutely, it could be amended and what I would like to see, just so that everybody's
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rights are respected, is the recognizing that there are protections for gender expression
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and gender identity, but also including a provision in there that there have to be safe
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spaces for women and children to change in these kind of situations where they are changing
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with other people with the same anatomy, and they're not going to be exposed to male anatomy.
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And that is something that is absent in the law right now, and it's something that we
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Ms. Podjovic, I can't believe I'm saying this, but what about a human rights challenge?
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I'm not sure. The problem with the human rights legislation, it wasn't drafted with
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these situations in mind years ago. What it does is it protects someone from being denied
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access to a service. So in this situation, a mother who wants to protect her child is
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not being denied access to a female changing room and the law right now doesn't protect
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her right to be in there and exclude somebody with male anatomy it just doesn't cover that situation
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so um i think that a case could be made that she and her child are being discriminated against on
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the basis of sex i don't know what the human rights tribunal will do with that that is a
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a new situation but I'm not saying there's no chance but I'm not sure how
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strong of a case it would be but it'd be worth looking into and also there could
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be a charter rights to under section 7 if this situation could engage section
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7 which is a right to security of the person and a you know a parent could
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argue that my child's security of the person right is being infringed by being exposed
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in this government facility to someone who has male anatomy and they want to protect
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that child from that. So, I'm not sure how strong that would be, but it's definitely
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Well, for sure. I'd be a brave guy if I tried to guess what the Human Rights Commission
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would do on any given issue but i'm interested to hear you say
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there could even be a an argument there that would be listened to so
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that's you looked at the law side of this we've looked at the situation at
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the swimming pool um what are then there's simply the
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matter of protesting uh this is wrong you say i don't know
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this shouldn't be going on and yet we have a bylaw apparently which
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if you do that you're considered hateful so can you talk to us um what advice do you have for
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people who just plain want to have their say on this protest well peaceful protest is protected
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by the canadian constitution specifically in the charter of rights and freedoms
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the canadian constitution is the highest law on the land and in my view the calgary bylaw which
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it looking to rebrand freedom of expression as harassment or freedom of
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speech as harassment in my view that's unconstitutional and a violation of the
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Charter of Rights and Freedoms because for as long as the Charter has been
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around people are allowed to stand in public places holding signs, chanting,
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making themselves heard, protests are a part of a stable and functioning
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democracy, what you can't do is be hateful with your speech and that is
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already a criminal code offense. So what it looks like the city of Calgary is
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trying to do here is to, you know, make something penalize protesters when the
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criminal code already protects against hate speech so in our view they don't
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have city of Calgary doesn't have the jurisdiction to do that that is
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something that the federal government has already done and it's a high bar to
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inciting hatred with speech and the criminal code basically says you cannot
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incite hatred which would which could lead to violence against a specific group and so
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i would say as long as you're you know protesting respectfully in every case against whatever you
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want to say about anything in society you have to be respectful and you can't make comments
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that could incite other people to violence that's that actually puts in puts us in mind of an
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incident recently where somebody actually went into a private event and I think it was a drag
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queen story hour I got I'm pretty sure that's what that's what it was at a public library
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well again um it's a private event if it's a private event somebody can be charged with
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trespassing. If you stay in a public space, you are absolutely legally entitled to protest.
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That right is, as I've said, is protected by the Constitution, and no bylaw can override that,
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as long as you're not inciting violence through hate speech. I see. Okay. So then, really,
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we have toā¦ Is it going to take a challenge to that city bylaw, do you think?
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Yes, yes. I mean, you can be charged under, you can be given a ticket under this bylaw,
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but in my view, that bylaw will not survive a constitutional challenge. So I hope to see
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that happen in the future because we need to protect the freedom of expression and freedom
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of speech in Canada. It's very important. Okay. So what we have here is a complex situation
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And really, we're looking for a way that people of goodwill, and that may not include everybody,
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but people who actually want to get along together can get along together.
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What's the path forward for people who just want to make this work?
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Well, I would suggest in order to respect and protect the rights of everyone here is
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that trans women are not forced to change in the male bathroom, but that they be given
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their own private space to change to protect the interests and rights of vulnerable female
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children and women so that they can also have a space where they're not being exposed to
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male anatomy in a space that they previously felt safe.
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I fear just from reading the stories and the comments and hearing from parents, some parents
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are very angry and very protective of their children.
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they don't it doesn't matter to them how somebody identifies when what they're
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looking at is what you can see in a changing room so I see this as a real
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problem because we certainly don't want any hatred towards the trans community
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so the best result in my view is to have a separate space for that trans person
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who does not has not undergone the gender reassignment surgery to change so that
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there's no conflict with anyone. And as I've said before repeatedly, we have to remember the most
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vulnerable group in our society is children. And specifically in this particular circumstance,
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it's young female children, and their interest must be protected.
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Certainly you can see the possibility of conflict in this situation.
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Yes. Yes. I'm afraid of what might happen if this doesn't get resolved.
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okay so there it is ladies and gentlemen the law has been changed this does not make the law right
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but laws can be changed practices can be changed and some need to be there is a way to do it
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parents and children have rights and in our hurry to accommodate a minority
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Which is not necessarily a bad thing, but nevertheless, in our haste to accommodate a minority, we have an obligation, in my view, not to trample upon the rights of a majority.
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People who care about this need to go to work on it, and there's a right way to do it.
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Ms. Pujovic, all your career, I am aware of some of it, all your career you have been
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Thank you for being here today and giving us your wisdom.
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