On March 27th 2019, the British Columbia Human Rights Tribunal (BCHRT) ruled in favour of Morgane Oger against the “jihadist-for-Jesus” William Whatcott. In 2017, Morgane Oger, ran for the NDP MLA seat in the Vancouver – False Creek riding. During that election Whatcott, who is not a resident of that riding, distributed 1500 flyers and digitally shared the flyers to an estimated 10,000 people. The flyers were decided by the BCHRT to have contravened the BC Human Rights Code. The case and decision have been labelled a landmark case for trans rights provincially in BC, and for Canada more broadly. Not only was Whatcott resoundingly defeated in this case, the awarding of costs as a result of his conduct was the most severe in twenty years.

Whatcott made the argument during the case that, because the flyer was distributed during an election, his flyer was adding to the marketplace of ideas. The intervening body, the Justice Centre for Constitutional Freedoms, argued that “If the electorate is only permitted to hear censored opinions and approved beliefs about 34 candidates for public office, the right to make informed decisions in voting becomes illusory”. Whatcott himself told the Tribunal :“I definitely didn’t want [her] to get elected, and I do want to see [her] disinvested of all political power and would rather [she] do something else with [her] time”. He was upset at the media and public, claiming that they were “pretending” that Ms. Oger was a woman, adding that he was the only one brave enough to speak the truth.

In her decision Judge Cousineau addresses the fundamental basis of this argument, saying that there is value in spotlighting Ms. Oger’s gender identity. Tribunal member Cousineau wrote in the decision: “Unlike other groups protected by the Code, transgender people often find their very existence the subject of public debate and condemnation. What flows from this existential denial is, naturally, a view that trans people are less worthy of dignity, respect, and rights. In the hearing room for this complaint, we were witness to repeated, deliberate, and flagrant attacks on Ms. Oger based on nothing more than a belief that her very existence is an affront”. The member goes on to say: “Far from an attempt to engage in an enriching policy debate, the expression contained in the Flyer is intended to denigrate and humiliate Ms. Oger based on her gender identity and encourage voters not to support her party – not because of the quality of its ideas, but because of its support for a transgender candidate”.

In an attempt to further the argument that Ms. Oger’s “pretending” was of significance, they brought up Clinton, Trump Roy Moore, and David Duke to legitimize the significance of someone’s personal life and values in public office. The tribunal member rebuked the argument, noting that unlike extra marital affairs or white supremacy, being trans is not a moral choice and says nothing about a candidate’s moral values. Furthermore the flyer by Whatcott did not address Oger’s platform or policies, but rather her existence as a trans person. In making the decision that Whatcott violated the code the member noted “In my view, the Flyer is the modern version of a “whites only” sign. It is an attempt to block the doors of government with a message that the political realm is for ‘cisgender people only’”.

The Whatcott Case. The other one.

One of the more notable things about this case in particular was the déjà vu. Many of the legal arguments that Whatcott professed, as well as the references to the Charter rights that he argued which allowed him to share the hate flyer, were either incredibly similar or identical to  past arguments from when he challenged an almost identical provision in the Saskatchewan human rights legislation. In the decision by the Supreme Court of Canada they found that the provision infringed on Whatcott’s freedoms of expression and religion, but that it was “demonstrably justified in a free and democratic society”. Whatcott, either oblivious, or wilfully ignoring his own loss at the Supreme Court attempted several of the same arguments.

Judge Cousineau noted: “At the outset of this exercise, I observe that, in making these arguments, Mr. Whatcott did not once refer to the Supreme Court of Canada’s decision in Whatcott. This is remarkable not only because this is clearly the leading case, and it was Mr. Whatcott himself who was the affected litigant in circumstances quite similar to the present ones, but also because many of the arguments he advanced before this Tribunal are essentially invitations to ignore or depart from Supreme Court of Canada jurisprudence. Even if I were inclined to accept those arguments, I obviously could not. This Tribunal is bound by those precedents, and it does not serve this process for Mr. Whatcott to repeatedly advance arguments here that he has already lost at the Supreme Court of Canada.”

Whatcott loses case… again.

The BC Human Rights Tribunal ruled that “his conduct in publishing the Flyers was discrimination contrary to the Code and order him to cease the contravention and refrain from committing the same or a similar contravention: Code, s. 37(2)(a) and (b).” In the decision the judge awarded Ms. Oger $35,000 for injury to her dignity, feelings, and self-respect. It is worth noting that in the evidence provided, Ms. Oger outlined preemptively engaging with the Vancouver Police for protection during the political campaign as a result of Whatcott’s flyers. She also had to advise the Vancouver Police Hate Crimes Division if she intended on speaking publicly, and follow extensive safety precautions which, prior to Whatcott’s flyers, she had not. Morgane Oger told the Tribunal: “what this flyer is, is a reminder to the transgender community… that ‘we’re gonna get you’. That’s what this flyer says. The experience lived by me and every trans person, especially transwomen, because this kind of hatred is specifically targeted at transwoman, it’s the reminder that we’ll come after you”

The Kangaroo of the Court

One of the remarkable things in this case is the sheer extent to which William Whatcott went to continually and excessively degrade and belittle Ms. Oger. The scale and scope of his discrimination both in, and outside of the courtroom were so significant that the BCHRT created precedent by awarding costs of $20,000 to Ms. Oger, in addition to the $35,000 awarded as a direct result of Whatcott’s behaviour. His behaviour included wearing a T-shirt every day of the proceeding reading “Mr. Oger, no matter how you use the state to silence your critics, you are still a guy”. This is despite several warnings that in doing so he would be in contravention of the Tribunal’s process where everyone is due respect. Whatcott throughout the proceeding refused to use Ms. Oger’s name or her prefered pronoun. He was instructed by the Panel to use ‘Complainant’ if he felt uncomfortable, but instead continued to misgender Ms. Oger and use her former name. Judge Cousineau wrote in her decision: “He denies Ms. Oger’s very existence as a woman, associates her with serious criminality, ridicules her, and likens her access to the Tribunal to a child’s whining. This is not something that anyone accessing the Tribunal’s process should be forced to endure.”

The conclusion of this case is monumental in many ways, firstly it creates within BC the precedent that there are limits which prevent someone from inciting hatred based solely on gender identity. The existence of trans people is no longer up for debate in BC, and their rights are no longer up for debate. It additionally set a precedent that discrimination and hateful conduct, both in and outside of a hearing, will not be tolerated. Despite all this, Whatcott told The Star that the decision didn’t matter, and that he “will not shut up”, and will continue to share his flyer. Morgan Oger told Queer News that Whatcott continues his harassment of her, and intends on protesting and distributing the hate flyers at an event she is speaking at in Kamloops at the Hills of Peace Lutheran Church. To see Morgan Oger’s take on the decision see her video here.