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Posted Dec 5, 2020, 6:43 PM
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Khan
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Join Date: Sep 2004
Location: Kingston, Ontario
Posts: 4,915
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Quote:
Originally Posted by lio45
The context in that decision was "that's a service for women, and you don't qualify, despite what you think". I doubt that that salon actually officially advertised "vagina" waxing, and if that's correct, then the BC HRT stretched things a bit (and, likely, erred there) in their attempt to be as... woke... as possible.
For the service to be vagina waxing, it would have to be actually identified as vagina waxing. If in all the marketing, advertising, signs, etc. the service is instead called something else (say, "Brazilian wax", which is merely defined as the removal of pubic hair using a special wax) then the actual reason that customer was denied service has to be along the lines of "this store only serves women", not "that service is clearly defined as a vagina service and it turns out this customer doesn't have a vagina". The latter would be a stretch.
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I find it amusing that you so confidently criticize a decision which you clearly have not even read (despite the fact that you were provided with a link to it).
The BCHRT devoted an entire section (~18 paragraphs) to this very issue. For example:
Quote:
[23] Section 8 of the Code only applies to services which a person customarily provides to the public. Like all provisions of the Code, the meaning of “services” customarily provided to the public must be given a large and liberal interpretation: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. To define the service too narrowly risks obscuring, and perpetuating, barriers which impede equal access to public life: Moore at paras. 27-31. At the same time, however, a service provider’s human rights obligations are grounded in their obligation to provide their particular service without discrimination. The Represented Respondents put it this way: “A grocer is not required to service a bicycle”.
[24] There is no dispute that all of these Respondents customarily provided brazilian waxes to the public...
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[26] The Represented Respondents called Angela Barnetson to give expert evidence about waxing services and the waxing industry. Ms. Barnetson has been a licenced aesthetician for 30 years. She teaches aesthetics at the Blanche Macdonald Centre in Vancouver, a college which provides training for various professions in the beauty industry. She has been teaching for 13 years. In addition, she owns and operates a spa, which provides waxing and other services for men only.
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[28] I find that Ms. Barnetson is qualified to give expert evidence about waxing techniques on different genitalia, and the waxing industry in general. She has “acquired special or peculiar knowledge” through 30 years of study and experience: R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. She is a recognized leader in her profession, as both a teacher and business owner. She gave her evidence in a fair, objective, and non-partisan manner, in accordance with the duty of an expert: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. I have found her evidence helpful in resolving the issue before me.
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[31] In the result, I have relied on Ms. Barnetson’s expert evidence to define a “brazilian wax”. That evidence was supported by the testimony of the Represented Respondents about the scope of services they are trained to provide and intended to offer.
[32] There are differences between waxing the genitals of a person with a vulva and a person with a penis and scrotum. To remove hair from a scrotum, the practitioner is required to handle both the scrotum and penis for a prolonged period of time, from 20 minutes up to an hour depending on the amount of hair. The scrotum must be held and positioned in a particular way. The skin on the scrotum is very thin and the practitioner must exercise caution to ensure they do not rip it. If the procedure is not done properly, it can cause bleeding, torn skin, and bruising. In contrast, the waxing of a person with a vulva involves different body parts and different techniques for positioning, applying, and removing the wax. At the Blanche Macdonald College, students are only taught to remove hair from labia and not from a scrotum. Ms. Barnetson provides private training about the procedure of removing hair from a scrotum and says that proper training and practice is important to ensure it is done safely and properly.
[33] Ms. Barnetson testified that there are several reasons a person might not choose to wax the genitals of a person with a scrotum. The penis almost always become erect, at least for some portion of the treatment. In her experience, it is not uncommon for the client to then request or expect sexual services and to become abusive when they are denied. Some people – particularly women – are not comfortable working with the scrotum and penis. She says that it is common industry practice for certain businesses to restrict their services to “women” (meaning persons with a vulva) or “men” (meaning persons with a penis and scrotum).
[34] Critically for the purpose of this complaint, Ms. Barnetson testified that the service of removing the genital hair of a person with a scrotum is called a “brozilian” or “manzilian”. This is contrasted from a “brazilian”, which is an industry term understood to apply to the removal of genital hair from a person with a vulva.
[35] I understand Ms. Yaniv’s consternation at the terms “brozilian” and “manzilian”. As a transgender woman, it is hurtful to be required to request services labelled “bro” or “man”. Those terms undermine her identity as a woman and reinforce the pre-eminence that society gives to genitals as the ultimate determinant of gender. Notwithstanding this objection, however, these are the terms used in the industry to describe particular services offered by businesses. In seeking the removal of hair from her scrotum, most service providers would understand that Ms. Yaniv did not require a “brazilian wax”, but rather a “brozilian” or “manzilian”. Likewise, I accept that service providers advertising a “brazilian” wax are referring to the removal of genital hair from a person with a vulva. As I will explain, this is consistent with the testimony of the Represented Respondents, which was that they intended to only provide their services to “women” – a term they define to mean persons with a vulva.
[36] In the case of genital waxing, I find that the differences in procedures, as well as its intimate nature, are important to defining the service. First, a scrotum is different than a vulva – regardless of the gender of the person it is attached to. Given the difference in techniques, training, and physical body parts, it is not appropriate to lump both together under the broader rubric of “genital waxing”, or – as Ms. Yaniv argues – “genital waxing for women”. The job is different depending on the specific genitals involved. This distinguishes the service from arm and leg waxing, which I discuss below, or other personal care services such as hair cuts.
[37] Second, I accept that this is an intimate service that a person must actively and specifically consent to provide. It requires the service provider to handle a stranger’s genitals for a prolonged period of time, in a private setting. I do not accept that a person’s decision to touch a stranger’s vulva then requires them to also touch a stranger’s penis and scrotum.
[38] In her arguments, Ms. Yaniv attempted to draw parallels with other circumstances where LGBTQ+ persons have been denied services – for example, in connection with gay weddings. I do not find the circumstances analogous. There is no material difference in 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 you to have intimate contact with the client. Taking another example, there is no material difference in renting a room to a gay couple or to a straight couple, and renting out rooms does not require intimate contact with the client: see e.g. Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2), 2012 BCHRT 247 [Eadie].
[39] In contrast, in the case of genital waxing, I have found there is a material difference in waxing different types of genitals and that, because of its intimate nature, service providers must consent to provide service on a particular type of genitals. What the law requires is that, having chosen to provide a particular service, they must provide that service without discrimination. For example, a person who customarily waxes vulvas cannot discriminate amongst their clients with vulvas, and likewise for a person who customarily waxes scrotums. However, human rights legislation does not require a service provider to wax a type of genitals they are not trained for and have not consented to wax.
[40] In sum, I find that the term “brazilian wax” refers to the removal of genital hair from a person with a vulva. Removing hair from a scrotum does not fall within this service. This is largely dispositive of Ms. Yaniv’s genital waxing complaints because she has not persuaded me that waxing a scrotum was a service customarily provided by these Respondents.
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Confucius says:
With coarse rice to eat, with water to drink, and my bended arm for a pillow - I have still joy in the midst of these things. Riches and honors acquired by unrighteousness are to me as a floating cloud.
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) was going to greatly "gentrify" the building, it's kind of the obvious thing to do, I'm the only one who figured I'd continue to operate it as the most affordable housing in the city.
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