Conduct of Transgender Complainant Leads to Dismissal of Complaint of Discrimination in the Provision of Waxing Services
Jessica Yaniv is a transgender woman who filed seven human rights complaints against multiple defendants relating to the denial of waxing services. In five cases, she requested waxing of her scrotum. In two, she requested waxing of her arms or legs. In each case, Ms. Yaniv told the Respondent that she was a transgender woman and the Respondent then refused to wax her. Ms. Yaniv says that this refusal to serve her constituted discrimination on the basis of her gender identity and expression, in violation of s. 8 of the Human Rights Code.
Despite these facts, all of Ms. Yaniv’s complaints were dismissed and a subsequent application for reconsideration was denied. A $6,000 costs award was made against her for improper conduct during the hearing process. Although Ms. Yaniv was unsuccessful, this did not mean that she did not experience discriminatory conduct. While the genital-waxing complaints were dismissed on their merits for the reasons described below, with respect to at least one of Ms. Yaniv’s requests for leg and arm waxing, the Tribunal found that her claim of discrimination may have been successful had it not been brought for an improper or bad faith purpose.
The Yaniv case garnered international media attention as people from all over the political spectrum debated not only the implications of the complaints, but also Ms. Yaniv herself, who proved to be a highly controversial figure. While there are many lessons to be learned from this much-publicised case, in the end, it serves as a reminder that it is not only evidence and legal argument that will be considered by the Tribunal. The conduct of litigants both before and during a hearing will be scrutinized as well.
The Merits of Ms. Yaniv’s Claims
The Human Rights Code prohibits service providers from denying service to a person on the basis of their gender identity or expression, except if they have a bona fide and reasonable justification for doing so. The analysis proceeds in two parts:
- First, Ms. Yaniv had to establish that the Respondents denied her a service which they customarily provided to the public, and that her gender identity was a factor in that denial.
- If she did so, the burden would shift to the Respondent to establish that the denial was bona fide and reasonably justified. If it is justified, there is no discrimination.
The Tribunal dealt with Ms. Yaniv’s genital waxing complaints separately from the leg and arm waxing complaints.
Genital Waxing Complaints
In each of these cases, the Respondents advertised the service of “Brazilian waxing”, and it was this service which Ms. Yaniv attempted to book.
Based in part on expert evidence tendered at the hearing, the Tribunal determined that a “Brazilian wax” referred to the removal of genital hair from a person with a vulva. Ms. Yaniv was requesting that the service providers wax her scrotum. Removing hair from a scrotum did not fall within the scope of a “Brazilian wax”. Although they customarily provided Brazilian or vulva-waxing services, scrotum waxing was not a service customarily provided by the Respondents. As such, they did not deny Ms. Yaniv a service they customarily provided and did not discriminate against her.
Instead, scrotum waxing is commonly referred to as a “Brozilian” or a “Manzilian”, terms which the Tribunal recognized were hurtful to Ms. Yaniv as a transgender woman given that she would have been required to request services labelled “bro” or “man”. The Tribunal found that although those terms undermined Ms. Yaniv’s gender identity and reinforced the pre-eminence that society gives to genitals as the ultimate determinant of gender, they were nonetheless the terms used in the industry.
Ms. Yaniv attempted to draw parallels with other circumstances where LGBTQ+ persons have been denied services such as in connection with gay weddings. The Tribunal did not find the circumstances analogous, commenting that while Brozilian and Brazilian waxes were two different things, there was no material difference between a cake which is baked for a straight wedding, and one that is baked for a gay wedding. Nor does baking a cake for a gay wedding require a service provider to have intimate contact with the genitals of a client, which would require active and specific consent from the service provider. The Tribunal did not accept that a person’s consent to touch a stranger’s vulva required them to also touch a stranger’s penis and scrotum even if that individual identified as a woman.
Leg and Arm Waxing Complaints
In contrast, the cases where the service provider refused to provide Ms. Yaniv with an arm or leg wax after she disclosed that she was transgender raised different issues than the genital waxing complaints. Most significantly, the Tribunal found that there is no material difference in waxing the arms or legs of a cisgender woman and a transgender woman. The Tribunal agreed with Ms. Yaniv that a person who customarily offers women the service of waxing their arms or legs cannot discriminate between cisgender and transgender women absent a bona fide reasonable justification.
However, for the reasons described below the Tribunal was nonetheless persuaded to dismiss these complaints on the basis that they were filed for improper motives or in bad faith pursuant to section 27(1)(e) of the Code.
Ms. Yaniv’s Motivation
The Tribunal accepted that Ms. Yaniv’s complaints were partly motivated by a legitimate desire to fight what she perceived as pervasive discrimination against transgender women in the beauty industry. However, the Tribunal found that this good faith motivation was overtaken by her primary purpose which was to manufacture the conditions for human rights complaints against unsophisticated and vulnerable respondents (many of whom were immigrants, and/or did not speak English as a first language) in order to secure a financial settlement. In a majority of her claims, the Tribunal found that Ms. Yaniv had the added motivation of punishing racialized and immigrant women whom she stereotyped as hostile to the interests of the LGBTQ+ community.
The Tribunal commented that a complainant may honestly believe that they have been discriminated against, and still file the complaint for improper motives or in bad faith. The Tribunal may dismiss a complaint in such circumstances, even if it would otherwise be justified, where it finds that the complainant’s predominant, or overriding, purpose is improper or in bad faith (as it was in this case).
Award of Costs
Both parties requested that the Tribunal award costs against the other for engaging in improper conduct within the Tribunal’s process. Only the Respondents were successful in convincing the Tribunal to award costs against Ms. Yaniv for engaging in various conduct including: filing her complaints for an improper purpose, misleading the Tribunal in respect of an earlier publication ban, being untruthful with respect to a central aspect of her complaint, engaging in extortionate behaviour, and making scurrilous attacks on counsel for the Respondents.
The Tribunal was satisfied that $6,000 struck the right balance in expressing the Tribunal’s condemnation of Ms. Yaniv’s conduct while not exacting too harsh a punishment.
Conclusion and Lessons for Employers
It is unfortunate that Ms. Yaniv proved to be such a problematic litigant because her case raised important issues that warranted careful consideration. “Waxing can be critical gender-affirming care for transgender women,” the Tribunal member wrote in a procedural decision in May. “At the same time, it is a very intimate service that is sometimes performed by women who are themselves vulnerable. [Ms. Yaniv’s] complaints raise a novel issue around the rights and obligations of transgender women and service providers in these circumstances.”
However, as stated by the Tribunal in its final decision, Ms. Yaniv “…hurt the Respondents by filing these complaints for improper purposes. Her conduct…had a significant impact on the Tribunal’s process, taking up a lot of its scarce time and resources. Ms. Yaniv deliberately sought to weaponize the Tribunal for financial gain and to punish individuals and groups.”
Ms. Yaniv’s case illustrates that having a valid claim is not enough to guarantee a human rights victory. The conduct of the parties was critical to the outcome in this case. Behaving in a respectful manner, staying off social media during a hearing, presenting evidence credibly, and most importantly, using the Tribunal’s processes in good faith are key to a successful outcome.