Western Standard - OPINION CHECK： Confusion at the swimming pools

00:00:00.000 Good day. We live in confusing times. Men who identify as women are starting to invade women's 1.00

00:00:17.420 spaces. They're competing in women's sports. They read to children in drag, and now they are moving

00:00:24.960 in to women's changing rooms at swimming pools. What is going on? To try and make some sense of

00:00:34.460 this, we are pleased to welcome here today Alison Pajovic, a constitutional lawyer working with

00:00:45.500 the Justice Center for Constitutional Freedoms. Ms. Pajovic specializes in constitutional and

00:00:53.320 human rights issues. Welcome to the Western Standard, Ms. Pujovic. Thank you very much for

00:01:00.340 having me today. You are very welcome. Ms. Pujovic, I think the issue here is the use of bathrooms,

00:01:07.180 not the legitimacy of trans people themselves, each to their own, right? Absolutely. The issue

00:01:15.040 here that we've been hearing about in the media and parents complaining is that there are some

00:01:22.020 trans women entering women's bathrooms who have not completed gender reassignment surgery,

00:01:28.420 so they still have male anatomy. The issue isn't whether they should be treated as women, 0.96

00:01:34.260 whether they should be treated differently, but rather it's the effect on women and children 0.99

00:01:42.100 when they're being exposed to trans women's male anatomy in a changing room. And these are spaces 0.63

00:01:48.020 that have previously been reserved for individuals with female anatomy, 1.00

00:01:53.340 and that is what women and female children expect 1.00

00:01:56.280 when they go into a female changing room. 0.98

00:01:59.320 And this, of course, has been the case for thousands of years.

00:02:02.880 Nobody has disputed the fact that there are men and there are women,

00:02:06.620 and for some purposes, they need their own space.

00:02:11.200 Now we're finding that the law doesn't see it that way.

00:02:15.040 Not in Canada. Anyway, what has changed?

00:02:17.920 Well, if you take a look at Section 4 of the Alberta Human Rights Act, as of 2017, I believe

00:02:24.240 is when it was last amended, it now protects gender identity and gender expression. So,

00:02:30.960 you can't discriminate or deny a person or class of persons accommodation or access to a facility

00:02:39.920 because of a variety of individual characteristics such as race, color, gender, age, and now

00:02:50.080 gender identity and gender expression are included in that section of the Human Rights Act.

00:02:54.880 So the human rights legislation protects the rights of trans women to access the pool,

00:03:01.280 but in my professional opinion there is a gray area here because municipal pools,

00:03:07.600 in my view, could bar trans women with male genitals from using the same change room as women 0.94

00:03:14.660 and their children. So why do you say that? Yeah, I say that because of section 11 of the Alberta 0.91

00:03:20.140 Human Rights Act, and that provides a defense clause to a potential claim for discrimination.

00:03:26.940 If a trans woman with male genitals complained, I can't access the women's changing room,

00:03:32.720 that's discriminatory while the municipality such as the city of Calgary

00:03:37.820 could have an argument using section 11 of the Alberta Human Rights Act which

00:03:43.580 basically says that there hasn't been a contravention of the Act if there are

00:03:50.840 reasonable and justifiable circumstances and in my legal opinion it is

00:03:55.940 reasonable and justifiable to exclude anyone with male genitals from changing 1.00

00:04:05.340 in a space that has historically been only for women to protect the comfort 1.00

00:04:13.020 and emotional mental well-being of vulnerable female children and women and

00:04:18.920 some women are victims of sexual assault so seeing male anatomy can be

00:04:24.680 triggering for them. So this is a live issue, but I do believe that there is room in the Alberta

00:04:31.540 human rights legislation for city pools to say no. I'm sorry, we're recognizing that you are 0.95

00:04:39.580 entitled to your own space to change, but unfortunately, if you haven't physically

00:04:46.040 transitioned into that you don't have female anatomy at the moment, you're not allowed to 1.00

00:04:53.480 change in that space. You know, Ms. Pujovic, speaking as an unreconstructed product of the

00:04:58.760 19th century, it does seem to me to be a peculiar thing that we should even be having this discussion.

00:05:05.440 I'm looking at the legislation that you have provided here, and to me, no wonder people

00:05:13.860 are confused about this. Everything we thought we knew six months ago, a few years ago, has

00:05:20.360 been turned upside down. So, let me ask you, what happened? Why are we having to deal with this?

00:05:27.120 Well, over the years, there has been an evolution in our society. Society is constantly progressing,

00:05:33.500 and we've progressed to the point where there is continuing and ongoing and evolving recognition

00:05:38.940 for marginalized groups in society. I guess that's a good thing. Absolutely, absolutely, and the law

00:05:44.800 has kept up with that the supreme court of canada you know continues to be open to recognizing

00:05:51.360 analogous grounds of discrimination and so you know in in recent times we've recognized as a

00:05:58.960 society that the trans people trans individuals are groups that are being discriminated against

00:06:05.680 and so the law has responded the courts have responded and we're seeing greater protections

00:06:11.200 for that group just as we have for other groups in the past such as different racial minorities

00:06:17.040 people with disabilities and now it's uh it's trans the trans community i see i i mean i i hear

00:06:24.160 what you say but i also have the conversations of people who read what we put out in the western

00:06:29.440 standard and i have to ask you this in a very a very direct way does the law actually allow

00:06:37.760 Now, trans people who are not fully transgendered to use washrooms of the sex they identify with. 0.51

00:06:45.080 People just can't wrap their heads around that.

00:06:47.000 It just seems like the decent thing to do is not to do that.

00:06:51.640 In other words, a biological male gets undressed in a woman's changing room only a few years ago. 0.92

00:06:59.000 That was unthinkable.

00:07:01.160 And is it really legal now?

00:07:03.540 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.

00:07:24.680 and I read that the city of Calgary responded and said well we can't do

00:07:28.800 anything because you know there's human rights legislation protecting that

00:07:32.420 person and giving that person the right to change in that bathroom but as I've

00:07:36.080 said there is a defense clause and so if a complaint was made to the city or

00:07:43.620 another municipality about this I do believe there is an argument that a

00:07:48.020 human rights tribunal could consider and I think it would be successful that it

00:07:52.440 reasonable and justifiable to exclude somebody with male genitals from using 0.99

00:07:58.200 the change room to protect the most vulnerable in our society who are our

00:08:02.760 children. So the common sense solutions seem to just use a use one of the washroom

00:08:12.120 stalls or use I guess most most facilities these days have family

00:08:19.920 changing room a private space so the person the trans person could use one of those private spaces

00:08:27.440 and not intrude on the experience of the of the of the changing room that anybody else has

00:08:35.440 is that a solution absolutely i i think that there has to be a safe space for vulnerable female 0.98

00:08:43.840 children and women who want to go to access these public facilities and are not expecting to see

00:08:52.080 somebody with with male anatomy and it's not about hating a trans person whatsoever it you know you

00:08:59.840 can you can identify as a female but if you still have male anatomy that's going to have that could 1.00

00:09:06.080 have an effect and we know it has an effect on some vulnerable people we know that there was a

00:09:12.080 a teenage girl recently who complained um i read about it on your news organization that she was

00:09:18.320 glad you're reading the western standard that's right she was traumatized when she was changing

00:09:23.120 in a calgary changing room at a pool and there was a trans woman walking around 0.79

00:09:32.160 fully nude and she was traumatized by that so this is definitely an issue that needs to be resolved

00:09:38.800 and unfortunately where the law has done a good job of protecting minorities

00:09:45.040 such as trans people it has not taken into account the effect on vulnerable

00:09:52.860 citizens such as young female children or young women in these facilities and

00:09:59.500 so there's competing interests here absolutely there's competing rights and

00:10:04.080 and the law is only at the moment

00:10:05.920 protecting the rights of trans people.

00:10:08.360 So, this is the theoretical background,

00:10:12.160 but here's the confusion that I hear over the phone,

00:10:15.460 I get in a letter to the editors.

00:10:18.500 Let's say you're a mother who encounters this situation.

00:10:24.300 You're in the changing room, you have your daughter with you,

00:10:27.940 and there's a person in there with a male anatomy 0.91

00:10:31.300 Walking around, at any rate, undressing, it's beyond awkward.

00:10:38.200 So here's the confusion.

00:10:39.240 You ask the person to leave, but that person refuses.

00:10:42.780 Say, I'm trans, I have a legal right to be here.

00:10:45.980 We've already established that there is a legal right.

00:10:48.860 What can you do?

00:10:50.540 What are your options?

00:10:52.100 Can you call the police?

00:10:54.880 Apparently there's no crime being committed.

00:10:56.580 Well, I know that there have been calls to police about this happening in Calgary,

00:11:04.260 and to my knowledge, the police have not charged anybody right now, and if you look at the

00:11:10.820 offense of indecent exposure, which you might think that this might fall into that category,

00:11:19.140 indecent exposure requires exposing oneself for a sexual purpose, and merely changing in

00:11:25.780 a changing room that you are otherwise lawfully allowed to access in my view would not be

00:11:33.060 construed as being an act to an act for a sexual purpose so you know unless somebody whether it was

00:11:42.740 someone of any sexual orientation was was doing something lewd in a changing room

00:11:47.940 you really don't violate that provision here and my guess is that's why the police haven't

00:11:54.820 made any charges yet because if you're just changing in the changing room and you're allowed

00:11:58.900 to be there that doesn't breach the provisions of the criminal code but i i just want to reference

00:12:05.220 a 2019 case out of bc where a trans woman named jessica yaniv made human rights complaints against

00:12:15.060 various owners of waxing salons because Yaniv wanted the owners of the salons to wax her

00:12:30.000 male body parts, and the women of multiple salons refused to do so, and the BC Human 0.73

00:12:37.880 Rights Tribunal dismissed Yaniv's complaints against the salons and the salon owners and 0.88

00:12:44.220 found, and I quote, a scrotum is different than a vulva, regardless of the gender of the person 0.90

00:12:51.180 it is attached to. The tribunal also took into account the testimonies of various salon owners 0.81

00:12:57.520 that they did not feel comfortable waxing Yaniv's male anatomy, and also found that there's an

00:13:04.700 element of consent. There would have to be consent by the owners to wax anatomy that is different

00:13:12.460 from what they advertise for which is female anatomy so again I want to stress here it's very 0.97

00:13:20.020 important that we're not talking about hating on anybody what we're talking about is the fact

00:13:28.720 that unless there has been a physical gender reassignment surgery someone in the female

00:13:36.720 changing room young women and children are going to see male anatomy in these situations

00:13:42.200 and they don't understand that this trans woman identifies as female,

00:13:48.980 all they know is what they see.

00:13:51.300 And that is having an effect on women and children 0.85

00:13:55.240 because they've been making complaints

00:13:56.700 and we hear about that kind of thing through the work that we do.

00:14:00.740 So this is an issue and there are conflicting rights here

00:14:04.280 and it's a very significant problem.

00:14:06.640 Do you take some encouragement for positive change

00:14:09.640 from the outcome of the Aniv case?

00:14:12.200 Well, yes, I mean, it's a recognition that there has to be a line drawn, and we have

00:14:21.760 to respect the rights of minorities, including trans women, absolutely, but there are differences

00:14:31.520 in anatomy, unless someone has had surgery, that the tribunal has recognized, and that

00:14:38.440 That is a factor, and there's a reason, and the tribunal found this is a reasonable reason 0.97

00:14:45.440 for refusing that service, is that the anatomy is different.

00:14:49.420 And so, I can see that being somewhat analogous to a situation like this if it ever got into

00:14:56.320 a tribunal complaint situation, or if it ever got to court, because there are competing

00:15:01.220 rights here, and unfortunately, the rights of children are not being looked after at

00:15:06.300 this time.

00:15:07.300 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.

00:15:13.140 But if you want to work for change, what are your options?

00:15:17.640 Well, what I would tell parents at this point, I would tell them about the human rights legislation,

00:15:23.780 which protects trans women's rights to access that changing room. 0.98

00:15:30.060 but you know parents are free to make a complaint to the city of calgary or whatever municipality

00:15:37.980 there they live in um if if enough people come together and explain i don't know that it needs

00:15:45.020 to be explained but you know write a letter make a phone call talk to your mla uh you know talk to

00:15:52.460 the city about how this is affecting their children how this is affecting them they

00:15:59.180 want to have a space where they can change where they're not going to be witnessing and exposed to

00:16:10.460 anatomy of a male and that that unfortunately we're faced with these conflicts so the city

00:16:18.860 of calgary owns the swimming pools and the changing rooms that go with them at the provincial level is

00:16:25.580 Is there, the province owns the Alberta Human Rights Act, is there a way of changing that?

00:16:32.420 Absolutely, it could be amended and what I would like to see, just so that everybody's

00:16:38.460 rights are respected, is the recognizing that there are protections for gender expression

00:16:47.240 and gender identity, but also including a provision in there that there have to be safe

00:16:53.280 spaces for women and children to change in these kind of situations where they are changing 0.99

00:17:04.820 with other people with the same anatomy, and they're not going to be exposed to male anatomy.

00:17:12.260 And that is something that is absent in the law right now, and it's something that we

00:17:15.960 very much like to see changed.

00:17:17.520 Ms. Podjovic, I can't believe I'm saying this, but what about a human rights challenge?

00:17:22.040 I'm not sure. The problem with the human rights legislation, it wasn't drafted with

00:17:34.040 these situations in mind years ago. What it does is it protects someone from being denied

00:17:41.420 access to a service. So in this situation, a mother who wants to protect her child is

00:17:47.860 not being denied access to a female changing room and the law right now doesn't protect 1.00

00:17:54.340 her right to be in there and exclude somebody with male anatomy it just doesn't cover that situation 1.00

00:18:02.420 so um i think that a case could be made that she and her child are being discriminated against on

00:18:10.980 the basis of sex i don't know what the human rights tribunal will do with that that is a

00:18:15.780 a new situation but I'm not saying there's no chance but I'm not sure how

00:18:21.420 strong of a case it would be but it'd be worth looking into and also there could

00:18:26.700 be a charter rights to under section 7 if this situation could engage section

00:18:34.980 7 which is a right to security of the person and a you know a parent could

00:18:41.260 argue that my child's security of the person right is being infringed by being exposed

00:18:48.840 in this government facility to someone who has male anatomy and they want to protect 0.76

00:18:57.300 that child from that. So, I'm not sure how strong that would be, but it's definitely

00:19:03.700 worth looking into.

00:19:04.700 Well, for sure. I'd be a brave guy if I tried to guess what the Human Rights Commission

00:19:11.060 would do on any given issue but i'm interested to hear you say

00:19:14.820 there could even be a an argument there that would be listened to so

00:19:18.900 that's you looked at the law side of this we've looked at the situation at

00:19:22.980 the swimming pool um what are then there's simply the

00:19:28.580 matter of protesting uh this is wrong you say i don't know

00:19:33.220 this shouldn't be going on and yet we have a bylaw apparently which

00:19:38.500 if you do that you're considered hateful so can you talk to us um what advice do you have for

00:19:46.100 people who just plain want to have their say on this protest well peaceful protest is protected

00:19:52.740 by the canadian constitution specifically in the charter of rights and freedoms

00:19:57.860 the canadian constitution is the highest law on the land and in my view the calgary bylaw which

00:20:04.740 it looking to rebrand freedom of expression as harassment or freedom of

00:20:13.620 speech as harassment in my view that's unconstitutional and a violation of the

00:20:17.920 Charter of Rights and Freedoms because for as long as the Charter has been

00:20:22.440 around people are allowed to stand in public places holding signs, chanting,

00:20:28.740 making themselves heard, protests are a part of a stable and functioning

00:20:35.980 democracy, what you can't do is be hateful with your speech and that is

00:20:42.420 already a criminal code offense. So what it looks like the city of Calgary is

00:20:49.420 trying to do here is to, you know, make something penalize protesters when the

00:20:57.680 criminal code already protects against hate speech so in our view they don't

00:21:06.500 have city of Calgary doesn't have the jurisdiction to do that that is

00:21:09.860 something that the federal government has already done and it's a high bar to

00:21:16.680 inciting hatred with speech and the criminal code basically says you cannot

00:21:23.540 incite hatred which would which could lead to violence against a specific group and so

00:21:30.100 i would say as long as you're you know protesting respectfully in every case against whatever you

00:21:37.700 want to say about anything in society you have to be respectful and you can't make comments

00:21:44.820 that could incite other people to violence that's that actually puts in puts us in mind of an

00:21:52.420 incident recently where somebody actually went into a private event and I think it was a drag

00:21:59.780 queen story hour I got I'm pretty sure that's what that's what it was at a public library

00:22:06.500 um is that acceptable

00:22:11.860 well again um it's a private event if it's a private event somebody can be charged with

00:22:19.380 trespassing. If you stay in a public space, you are absolutely legally entitled to protest.

00:22:25.300 That right is, as I've said, is protected by the Constitution, and no bylaw can override that,

00:22:30.420 as long as you're not inciting violence through hate speech. I see. Okay. So then, really,

00:22:41.860 we have to… Is it going to take a challenge to that city bylaw, do you think?

00:22:48.420 Yes, yes. I mean, you can be charged under, you can be given a ticket under this bylaw,

00:22:56.660 but in my view, that bylaw will not survive a constitutional challenge. So I hope to see

00:23:03.780 that happen in the future because we need to protect the freedom of expression and freedom

00:23:08.420 of speech in Canada. It's very important. Okay. So what we have here is a complex situation

00:23:14.820 And really, we're looking for a way that people of goodwill, and that may not include everybody,

00:23:25.260 but people who actually want to get along together can get along together.

00:23:34.660 What's the path forward for people who just want to make this work?

00:23:38.400 Well, I would suggest in order to respect and protect the rights of everyone here is

00:23:47.020 that trans women are not forced to change in the male bathroom, but that they be given

00:23:56.840 their own private space to change to protect the interests and rights of vulnerable female 0.99

00:24:04.120 children and women so that they can also have a space where they're not being exposed to 0.80

00:24:11.380 male anatomy in a space that they previously felt safe.

00:24:16.220 So can we go on like this?

00:24:21.640 Absolutely not.

00:24:22.640 I fear just from reading the stories and the comments and hearing from parents, some parents

00:24:29.620 are very angry and very protective of their children.

00:24:33.440 they don't it doesn't matter to them how somebody identifies when what they're

00:24:41.120 looking at is what you can see in a changing room so I see this as a real

00:24:47.000 problem because we certainly don't want any hatred towards the trans community

00:24:51.200 so the best result in my view is to have a separate space for that trans person

00:24:58.400 who does not has not undergone the gender reassignment surgery to change so that

00:25:02.900 there's no conflict with anyone. And as I've said before repeatedly, we have to remember the most

00:25:08.620 vulnerable group in our society is children. And specifically in this particular circumstance,

00:25:14.820 it's young female children, and their interest must be protected. 1.00

00:25:20.360 Certainly you can see the possibility of conflict in this situation.

00:25:24.280 Yes. Yes. I'm afraid of what might happen if this doesn't get resolved.

00:25:28.800 okay so there it is ladies and gentlemen the law has been changed this does not make the law right

00:25:41.760 but laws can be changed practices can be changed and some need to be there is a way to do it

00:25:51.680 parents and children have rights and in our hurry to accommodate a minority

00:25:58.800 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.

00:26:15.700 People who care about this need to go to work on it, and there's a right way to do it.

00:26:22.600 Ms. Pujovic, all your career, I am aware of some of it, all your career you have been

00:26:31.820 a fighter for what's right.

00:26:34.140 Thank you for being here today and giving us your wisdom.

00:26:39.100 God bless you.

00:26:41.900 Thank you Mr. Hanford for having me.

00:26:44.380 It's been a pleasure.

00:26:45.380 For the Western Standard, I'm Nigel Hanford.

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Western Standard - March 11, 2023

OPINION CHECK： Confusion at the swimming pools

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