Canadian Human Rights Tribunal May Foster Sexual Harassment

Ellie McFarland | @El_FarAwayLand

Earlier this week, pre-surgery trans woman Jessica Yaniv was the cause of a Canadian Human Rights Tribunal hearing. A home-based beauty salon in Vancouver turned her away from a Brazilian wax. Yaniv says that allowing this could set a “dangerous precedent”, allowing discrimination against trans people. However, the proprietor of the salon, Marcia Da Silva, says that she has “no problem with LGBT”. Silva instead explains that she not only was uneasy about performing a Brazilian wax on someone with male genitalia but that she also had not trained for it. This issue is not the first instance of alleged transphobia Yaniv has complained about; it will doubtfully be the last. But this calling of a tribunal will focus on one core question relating to this case: should a business be able to deny services on the basis of gender identity?

The Human Rights Tribunal: A Right to Refuse?

In Canadian law, it’s very easy to predict who’s favor this case will fall to. Although Da Silva’s lawyer claims a ruling in Yaniv’s favor would be ordering “intimate services” of his client, it’s likely Da Silva will be compelled to serve the complaint regardless of her disturbance regarding male genitalia. The Canadian Human Rights Tribunal law extends protections based on an immutable characteristic to the entire private sector. This is divergent from American law in that American law only extends to the public sector and privately owned businesses “of public accommodation”. This refers to restaurants, hotels, and most other businesses which do not serve private members.   

There are two contentions in Yaniv’s case that may or may not impact the ruling. Firstly, Da Silva’s service, waxing, especially of the genital area, is undeniably an intimate service. Secondly, the beauty salon is home-based, which means that the business is technically part of Da Silva’s personal living space. Both of these are important for the tribunal to consider, but what is more important is how a ruling in Yaniv’s favor is excusing a type of sexual harassment. 

Sexually Harassing Da Silva

To remain consistent in the law, LGBT people deserve the same protections of other marginalized groups. This is also similar to the debunked “flopping genital” argument that people sometimes use to argue against allowing transgender people in bathrooms. Genitals of any kind are not typically on display in bathrooms, locker rooms, or other such locations. But in a beauty salon, a place which deals very closely with all parts of the human body, it’s a different story. The salon which is run by a woman and presumably caters to women almost only. Given this information, Da Silva and her employees operate under the assumption that their job will not require them to view or work on male genitals. 

Unlike many larger salons, Da Silva likely knows her clients personally and has a much closer relationship with her employees. Implicitly or explicitly, a salon that is owned by a woman, hires only women, and caters exclusively to women implies that the workers will be dealing with female genitals. Forcing them to deal with male genitals without their consent is undoubtedly a form of sexual harassment on behalf of the government.

Health and Consent Issues

The workers or the owner at this home-based salon did not give their explicit or implied consent to see or work with male genitalia. If the Canadian Human Rights Council rules in Yavin’s favor, they would require in the job description of salon workers, regardless of establishment, to work with male genitals; this would presumably disallow a significant amount of practitioners from operating. Cosmetology is not a profession like being a doctor or an esthetician. 

There is far less regulation because it’s less concerned with health and more with aesthetics. The owner and presumably none of her employees are actually trained in waxing male genitalia. This is a solvable problem, but for the time being, their inexperience could potentially cause serious health risks to Yavin. So this is not just the risk of opening up salon employees to the visual of unwanted genitals. It’s also an issue of safety that Da Silva needs to take into consideration for liability purposes. 

A Political Stunt

Vancouver is a city of around 600,000. It is not a small town, strip mall, hamlet, or village. There is surely no shortage of chain or mainstream beauty salons or waxing studios that Ms. Yavin could have patronized after this one turned her away.

It sounds cruel, but when we look at Yavin and her history as an “LGBT Activist”, it is clear that this is a stunt. Her entire claim to fame is raising hell on Twitter pulling similar stunts of character assassination. Her cry of neo-nazism shows that she cares more about theatrics than either waxing or activism. Jessica Yavin’s complaints are a frivolous farce upon the human rights council. Though denial service can make a person feel nervous or otherwise upset, that is no reason to employ legislation.

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