Background

A transgender woman undergoing transition was referred to a psychiatrist for depressive symptoms including suicidal thoughts. She saw the psychiatrist to address her overall mental health, but alleged that the psychiatrist’s questions were focused on her upcoming gender-affirming surgery. The psychiatrist advised her that he would not provide psychotherapy concerning the surgery because he did not have expertise in the area. The woman further argued the psychiatrist would not provide her with a referral, but he disagreed and said he was unable to do so because she left his office before he could.

The Human Rights Complaint

The woman made an application under BC Human Rights Code, section 8. An “application” is an official legal request made to a tribunal or court. In the case of tribunals, a person requests that a certain decision be made. Here, the woman wanted the tribunal to decide she was discriminated against in the area of “accommodation, service or facility”. This area is found in section 8 of the Code.

Section 8 gives service-providers and others a duty to not discriminate. They also have a “duty to accommodate”, which means taking all reasonable steps to avoid having a negative effect on a person. The negative effect is based on a “personal characteristic” listed in the Code, which we discuss in this blog.*link In this case, the service denied was ongoing psychotherapy.

Attempt to Dismiss the Complaint

Section 27(1)(c) of the Code lets the tribunal do an early review of complaints to dismiss those that are unlikely to be successful. If a complaint is dismissed, it does not have a full hearing in front of the tribunal. It is up to the person opposing the complaint to show there is “no reasonable” chance of the complaint being successful. At this early stage, the tribunal does not decide “the facts” of the complaints, that happens at the hearing. But, the tribunal does review the evidence for consistency along with the relationship between those involved in the complaint. If the tribunal’s review and analysis of evidence shows it is simply “conjecture” (an opinion with little evidence to back it up), they may dismiss the complaint.

Like all human rights complaints, the woman’s complaint was made up of three parts:

1) She had a protected characteristic under the Code: As a transgender woman, this factor was met. The doctor did not disagree on this point.

2) She experienced harmful treatment: The tribunal said that because the doctor refused to accept the woman for ongoing psychotherapy, there was a reasonable chance she could prove harmful treatment at a hearing. Similarly, the tribunal thought that refusal to provide a referral could be proven as harmful treatment at a hearing.

3) The characteristic (gender identity) was a factor in the harmful treatment:

The doctor argued that there was no link between the woman’s gender identity and his refusal to provide ongoing medical care because he provided a service (the consultation) according to the referral. He further argued that it was not the role of the Tribunal to second-guess clinical judgements of medical practitioners. He said he used proper clinical factors in his assessment and that his lack of expertise were non-discriminatory reasons for refusing ongoing care.

The woman both disagreed with the doctor’s facts and said that she was seeking general psychiatric care because she was going through a major life change, not because she was transgender. She argued that her upcoming surgery was like other big life changes such as immigrating to a new country. She further challenged that the doctor should have some expertise or training to provide ongoing care to transgender patients. The tribunal agreed that this would be an important issue and allowed the hearing about the refusal of service to proceed.

As for the doctor’s alleged refusal to provide a referral, the tribunal found no evidence that the woman’s gender identity was a factor in the doctor’s decision. They decided to dismiss this part of the complaint.

Conclusion

This case is a good example of how the tribunal reviews complaints before they proceed to a full hearing. It also shows how human rights complaints might address important social issues, like the kind of training doctors should have.

Disclaimer

The VIHRC blog is for informational purposes only and is not intended to be legal advice.