Thursday, April 02, 2009

Are BC Human Rights, Human Rights?

If Human Rights are restricted to the public sphere, are they Human Rights? The Province of BC thinks they are, the Provinces of Ontario and Nova Scotia, not to mention the UN disagree and so do I. Quite simply I believe Human Rights are attributed to a person because they are a person, not because they are a person in a public space. The equality and dignity these rights afford should not end when you walk in a private establishment, join a private club, or participate in a private relationship. Humanity should not, must not have jurisdictions.

In July 2004 the Marine Drive Golf Course in Vancouver BC restricted one of its lounges to men only and 36 female members of the private club filed a complaint pursuant to the BC Human Rights Code. The BC Human Rights Tribunal found in favour of the women; however upon appeal the BC Supreme Court and the BC Court of Appeal overturned the decision. Though the higher courts acknowledged that the Marine Drive club's actions were discrimantory in nature, they ruled that the Code and the Tribunal did not have jurisdiction due to the private nature of the club, and therefore the Club was not violating the female members' Human Rights.

The BC Supreme and Appeal Court reiterated that section 8 of the BC Human Rights Code clearly restricts the jurisdiction of Human Rights in BC to the public domain; it reads:

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 or age of that person or class of persons.
Now the BC Human Rights Tribunal had addressed the issue of s.8 but in interpreting other cases (Gould and Berg) found that because of the public nature of the services offered by the Club the Code did apply. The higher courts overturned the decision on grounds the Tribunal clearly misinterpreted those cases (and it admittedly had). I would argue however that had the Tribunal investigated the Club instead of resting on an a priori rationale, the Club would have been demonstrated to in actuality be a public club, but this argument is irrelevant here.

What is relevant is that British Columbia believes Human Rights should only apply to the public arena, and I believe that is not only wrong but contravenes commonsense. Ontario and Nova Scotia do not include a restriction in their Human Rights Codes lthat imits Human Rights to only certain situations; in fact our largest province went out of its way to exclude such a jurisdictional clause. As described in the last paragraph (and footnote) of this law bulletin:

Both the Ontario Human Rights Code and the Nova Scotia Human Rights Act contain no such restriction. In Ontario, the phrase "to which the public is customarily admitted" was purposely removed from the relevant section of their Human Rights Code in 1981. In these jurisdictions, individuals have a general right to services without discrimination-the service need not be available to the public.
It should also be noted that the UN does not include any type of restriction in its Universal Declaration of Human Rights. But just because other provinces and an international body have excluded such a clause does not prove my case that such a restriction is wrong, I only offer such evidence to substantiate my argument.

What I put forth is that Human Rights can not by their definition be applied only to certain situations. If Human Rights are only enforced in the public sphere, they aren't Human Rights.

In the case of the Marine Drive Golf Course and others like it, some might claim there's justification for sex-specific lounges, but I argue such justification is either based on a superficiality with some semblance of conservative tradition or that it fails to consider the complexity of the situation.

In regards to the explanation that sometimes its nice to be able to relax without the other gender around, I would respond that is based on an unfounded traditional seperation of the sexes that has no reasonable support and is solely based on conservative values. Why do the sexes need to be institutionally separated for any pleasure to be gained? I can only imagine that such people not only act differently in the midst of their own sex, but that they want that ability to behave that way protected and thus regulate againest the other sex.

The equality and dignity Human Rights afford should not end when you walk in a private establishment, join a private club, or participate in a private relationship. Humanity should not, must not have jurisdictions.

1 comment:

sandra said...

Thanks for raising this issue on your post.

Note as well the "olympics" are a private affair, there is no women's ski jumping either, even though there is provincial and federal money being poured into the Olympics.

You've still got a long way to go, baby!