A Human Right to Group Self-Identification? Reflections on Nixon v. Vancouver Rape Relief

In Nixon v. Vancouver Rape Relief Society, the British Columbia Court of Appeal upheld the right of a feminist collective to identify itself in such a way as to exclude persons who lacked the life experience of being treated as girls and women. This article contributes to the on-going debate about the limits to group self-identification by surveying a range of groups in Canada, the history of challenge to women’s and Aboriginal groups, the legal exemptions of groups from the duty of non-discrimination, and the question of whether there should be limits on such exemptions.

The author takes the position that groups subject to human rights legislation can contribute in positive ways in Canadian society, including through their efforts to promote equality, and suggests that their exemption from the duty of non-discrimination (so they can exist) is protected by various Charter rights and freedoms. While it is appealing in some ways to try to craft group exemption provisions that protect equality-seeking groups while not protecting groups actively working against equality, there are both pragmatic and constitutional barriers to the creation of a limiting test. In summary, any attempt, such as in Nixon, to deny or restrict the right of women with the life experience of being treated as girls and women to form groups with that self-identification, lacks policy and constitutional support.