By Eva Kurilova
How one lawyer has successfully used the law to push gender ideology into our institutions.
Barbara Findlay is a Vancouver-based lawyer who describes herself as fat, old, white, cisgender, queer, and disabled. She also describes herself as an activist, and she has indeed been a key figure in advancing rights for same-sex attracted people and same-sex couples in Canada. However, she has also been a pioneer in “trans rights,” helping to push forward the sex self-identification policies that now conflict with the rights of women, children, same-sex attracted people, and anyone who knows that sex is binary and can’t be changed.
Barbara Findlay / Facebook
Findlay is currently serving as counsel for the British Columbia College of Nurses and Midwives (BCCNM) against New Westminster nurse Amy Hamm, who is the subject of a disciplinary hearing for her own activism. Hamm is an advocate for women and children against what she sees as the harms of gender ideology, such as the destruction of women’s sports and spaces and the transitioning of children. The BCCNM and Findlay in particular have tried to argue that she is not allowed to express these positions while at the same time being a nurse.
Amy Hamm
But Findlay is an avowed activist herself, and she uses her position as a lawyer to advance her social justice causes. In 2002, she even wrote a booklet on the topic titled “Acting Queerly: Ruminations of an Activist Lawyer.” According to the abstract, “findlay situates herself as a lesbian, a feminist, and an equality rights activist.”
(Findlay spells her name with no capital letters. As names are proper nouns, I am choosing to follow conventional practice for capitalization.)
Barbara Findlay Vs. Vancouver Rape Relief
The “Acting Queerly” booklet also describes Findlay’s legal representation of Kimberly Nixon, a trans-identified man who filed a human rights complaint against Vancouver Rape Relief (VRR), a women’s rape shelter, for not allowing him to volunteer as a peer rape counsellor. Findlay often referred to Nixon as “the Rosa Parks of trans women.”
Nixon filed the initial complaint in 1995, the very day after he was asked to leave training. In 2001, the British Columbia Human Rights Tribunal ruled in favour of Nixon and awarded him $7,500 in compensation—a provincial record.
But VRR sought a judicial review of the decision and it went before the Supreme Court of British Columbia. In 2003, the Supreme Court ruled that the tribunal had made an error in judgment: VRR was not guilty of discrimination and was in fact allowed to maintain a female-only space.
Source: Digital Transgender Archive
The judge likened VRR’s policies to a religious conviction, but Findlay reportedly remarked, “They’re not a religion—more of a cult.”
Nixon and Findlay were not done, and they filed an appeal with the British Columbia Court of Appeal. This court also held that Vancouver Rape Relief, as a non-profit organization, could maintain its female-only policy. In 2007, the case ended up at the Supreme Court of Canada, which dismissed the appeal and put a final end to 12 years of legal battles.
Nevertheless, Findlay was optimistic. “Ultimately, what is accessible to all women will be accessible to trans-women too,” she told The Tyee.
“It was absolutely worth it because of the impact this case [has had] on feminism and women’s groups in Canada,” she also told Xtra Magazine. “We have been able to serve as a catalyst for the women’s movement. Almost all of the women’s centres in Canada are now trans-inclusive. So Kimberly has changed the world for trans women.”
Writer and feminist activist Lee Lakeman, who worked at VRR for over 40 years beginning in 1978, sees the situation quite differently, telling me:
Ms. Findlay publicly disapproved of VRRWS [Vancouver Rape Relief & Women's Shelter] grassroots discipline and effectiveness as far back as the 1980s. We understood then in 1995 that Ms. Findlay knew that according to BC Human Rights Law, VRRWS, the oldest rape crisis center in the country, was entitled to organize as “women only” against sexist violence against women and toward women’s equality. Sadly, single-minded self righteousness can overtake any loyalty to legal ethics, and in this case, Nixon and other men were misinformed of their entitlements, the BC Human Rights Tribunal was economically burdened and misled, the legal process was repeatedly stalled and distorted while the unfounded case lumbered step by unnecessary step through the courts over the course of a decade. But each stall and step facilitated trying the case in the commercial press with unrelenting attempts to demean the character of the Collective of women of VRRWS and to bludgeon the public with junk law and junk science until our eventual victory.
Lakeman is currently working on a thorough history of the years that VRR had to spend fighting against Findlay and Nixon.
Barbara Findlay (left) and Kimberly Nixon (right) / Xtra Magazine.
Barbara Findlay Vs. Correctional Service Canada
During the time that Findlay was defending Nixon, she also had another high-profile trans-identified male client. Synthia Kavanagh, born Richard Chaperon, was incarcerated in 1989 and placed in a male institution. In 1993, he filed three human rights complaints arguing that Correctional Service Canada (CSC) had acted in a discriminatory manner by discontinuing his estrogen, not allowing him to receive sex-reassignment surgery, and placing him in a male institution.
Findlay wrote about Kavanagh in a 1999 booklet titled “Transsexuals in Canadian prisons: An equality analysis.” She dedicated the text to Kavanagh, “for her [sic] courage and her perseverance and her wicked sense of humour.”
What she didn’t mention was that Kavanagh was serving life in prison with no chance of parole for 15 years for the second-degree murder of his roommate, another trans-identified male born Leo Black, who went by Lisa Black. Kavanagh confessed to police that he had murdered Black with a hammer and a knife.
Findlay saw no problem with such a man being transferred to a women’s prison. In fact, in the 1999 booklet, she was already arguing that “The assumption that there exist two and only two genders in humankind is deeply entrenched in the Canadian legal system, as it is in Canadian society.”
This raises the question of why Findlay wasn’t arguing to end sex-segregated prisons altogether rather than to move her client to his preferred facility.
Undated photo of Kavanagh / Facebook
At any rate, the Canadian Human Rights Tribunal ruled in Kavanagh’s favour in 2001, and the resulting findings fundamentally changed how CSC dealt with trans-identified prisoners going forward. The Health Services policy was updated to ensure such inmates would be provided with hormone therapy. They would also be provided with sex-reassignment surgery, paid for by CSC (and therefore, by taxpayers), if they had completed the surgery qualifying period before they were incarcerated.
The Kavanagh case likewise set the precedent for placing trans-identified male inmates according to their surgery status, with post-operative inmates being placed in female institutions. This continued until Canada brought in Bill C-16 and began transfers based on self-ID instead.
Kavanagh himself was provided with the surgery and won his transfer to a women’s institution.
Barbara Findlay and “Trans Kids”
In more recent times, Findlay has been focused on children. In 2014, she posted an excited blog to her website with the title “World first for Trans* kids in Catholic schools!” In the blog, Findlay explains how she represented an “11 year old trans girl” (so, a boy) and helped to implement a policy which ensured that “the next child in Tracey's situation will be able to request different pronouns, uniforms, and privacy in changing; and the school board will reduce gender-segregated activities. It also means that gender-variant children - for whom neither or both M and F fit - will have their gender presentation accommodated.”
Findlay also presented at a January 2017 information session held to help clarify the rights and responsibilities of educators in the wake of changes in both the British Columbia and Canadian human rights codes which added the protected grounds of “gender identity” and “gender expression.” As I have written before, the British Columbia Ministry of Education had directed schools to bring their codes of conduct in line with these policies. It partnered with the ARC Foundation and its SOGI 1 2 3 program to “support” schools in developing their policies.
In a video posted on the YouTube channel of the Teacher Education program at the University of British Columbia, Findlay discusses the importance of making sure that minors are able to socially transition at school without their parents' knowledge. Her presentation at UBC was hosted by TEFA, which stands for “Teacher Education for All!”, a social justice initiative funded by Robert A. Quartermain, the founder of the ARC Foundation.
In the video, Findlay says that teachers have a duty to keep gender identity issues from children’s parents if that’s what the child wants. She also stresses the importance of having policies regarding washrooms and pronouns, and she discusses two clients of hers, both trans-identified girls, who “transitioned” at ten and eleven years old, respectively.
“It’s the cistem,” writes Findlay on the board during the SOGI discussion at UBC.
This video made up part of a complaint to The Law Society of British Columbia against Findlay filed by concerned BC resident Karin Litzcke in July 2020. Litzcke described how the political discussion in the video regarding the instruction given by teachers in BC schools circumvented “the democratic process of school governance, subverting the ability of elected officials to govern schools according to their mandate and for their constituencies.”
Indeed, the discussion near the end of the video becomes highly political, with Findlay explaining how teachers can be “allies and activists” in bringing about the desired changes. Findlay and then-British Columbia Teachers' Federation president Glen Hansman also nod along as a meeting participant talks about how education students with the right “practices and politics” might need to keep their heads down and their “good politics” under wraps during practicum so that they aren’t “shut out of the system” and can go on to change it from the inside.
Hansman explains that he took this strategy during his own practicum at McGill. He kept his head down and complied in order to “get those papers signed” so that he could make the changes he wanted once hired as a teacher protected by a collective agreement.
Litzcke also highlighted the conflict of interest inherent in Findlay pushing school policies that would encourage transition and then taking those children on as clients. Despite these and other serious issues raised in the complaint, it was dismissed by The Law Society of BC. An appeal to the BC Ombudsman's office was likewise dismissed.
After taking part in the UBC presentation, Findlay continued her work of ensuring that children could be socially, legally, and medically transitioned.
Later in 2017, she represented a British Columbia couple who didn’t want their baby’s sex marker on their health card. The parents reportedly wanted the baby to develop their own “gender identity,” (what happened to “sex and gender are different”?) and refused to tell people whether they had a baby boy or a baby girl. The baby became the first in the province and possibly the first in the world to receive a health card with a “U” for “unknown” placed in the “sex” field.
Findlay told Global News:
The assignment of sex in this culture is done when a medical person lifts up the legs and looks at the baby’s genitals. But we know that the baby’s own gender identity will not develop for some years until after they’re born.
Guided by her belief that sex is an arbitrary assignment but that very young children develop a gender identity just a few years after they are born, Findlay took up the case of a troubled 14-year-old British Columbia girl whose father did not want her to transition.
The girl had been experiencing gender confusion since she was 11 years old and had been referred for treatment for her “gender dysphoria” by BC psychologist Wallace Wong. Wong has previously stirred up controversy for admitting that, out of the over 1,000 children he saw at his gender clinic, more than 500 of them were kids in government care.
In 2019, the girl’s father, Robert Hoogland, was restricted by the court from talking about the case. Findlay agreed with the decision, stating that, “for a transgender person, having the world refuse to accept the gender identity that you say you are is the most profound harm because it’s a denial of your human identity. (The) dad’s expression rights end at the point where they harm (the child).”
In 2021, Hoogland was jailed after being found in contempt of court for referring to his daughter as his daughter and with female pronouns.
Who is Barbara Findlay?
It’s hard to imagine that people like Barbara Findlay believe it is good and right for children to transition, that schools should hide the social transition of children from their parents, that parents should not have legal recourse to stop the medical transitioning of their children, and, furthermore, that parents should go to jail for not going along with it.
As I was learning about Findlay’s life and career, I became intensely interested in how she could have ended up defending these positions and working to engrain them in society through law. I came to understand that she genuinely sees trans rights as the natural successor of gay rights. And as hard as she fought for gay rights, she is fighting for whatever it is that “trans rights” is today.
Findlay was born in 1949 and started University in 1967, when same-sex sexual activity was still illegal. As a first-year student, she went to see a psychiatrist who institutionalized her against her will because she was a lesbian. Homosexuality was only taken off the list of mental illnesses in the DSM in 1973, the same year she started law school. But, before she could be accepted, she had to provide a letter from a psychiatrist attesting to her mental health because she had spent that time in the psychiatric ward.
Findlay never went back in the closet, not even when she began practicing law. She knew of other lawyers in the closet, but she figured that unless somebody was willing to be open about it, gay and lesbian people would not achieve equality in the legal profession. Not only did she help make headway for gay and lesbian people in the profession but—credit where it is due—she was instrumental in fighting for rights for gay and lesbian people in Canada more broadly. She did fight for and help secure rights that I enjoy today.
As a 2016 article in The Advocate explained:
Early in her career, lesbians and gay men did not expect justice or access to it; they were “just trying to stay out of the way of the arm of the law.” They could, for example, be fired from their jobs or evicted from their homes with no recourse. Family relationships when there were children involved were simply not recognized. Lesbians who came out routinely risked losing the children born to them while they were married.
Findlay has also been involved in the lesbian community her whole life. In the 1990s, Girlfriend magazine ran an award-winning series of articles about the higher rates of breast cancer among lesbians. Findlay contributed her own story of being diagnosed with the disease and opting for mastectomies, which was turned into the article “Belinda’s Battle: A dyke follows the loss of her breasts” by Nina K. Tryggvason and Lisa Smedman.
In the article, Findlay discusses not only how she came to terms with the loss of her breasts but also how formal support groups at the time did not always recognize lesbians, adding extra difficulty to the process.
Findlay also discussed her breast cancer journey in volume 19, issue 3 of Room of One's Own, a Canadian quarterly literary journal. Formerly a feminist publication, it is now called Room and proclaims to be a showcase of “writing and art by people of all marginalized genders.”
Photograph from Room of One's Own 19:3
Barbara Findlay was a pioneer at a time when gay people were lacking basic rights and dealing with real discrimination, exclusion, and hatred. She was out and had a high-profile career when many gay and lesbian people were in the closet. She is smart, and she is attuned to the state of the gender debate. She could see the current tensions around hate speech and free speech and the conversation around parental rights coming before many others did.
While I appreciate what Findlay has done and what she has gone through in her life that led her to the views she has today, it is impossible to support the reality-denying orientation of her activism. In this, she even presents a challenge to those trying to claim gay rights weren’t a slippery slope to absurdity. But I will always argue that gay rights didn’t have to lead here.
We are here because Findlay and too many others accepted the lie that people can change sex or the absurd notion that sex doesn’t matter and that gender identity should take precedence. Findlay believes that the trans project will be complete when we no longer record sex on any documents, and she’s not alone. There is a concerted effort to erase sex in law by many trans activists, including the UN Independent Expert on sexual orientation and gender identity Victor Madrigal-Borloz.
Findlay’s activism is also authoritarian in nature. The rift that she is forcing between parents and children—by arguing that parents who “misgender” their children should face legal consequences—is highly concerning, especially for anyone who is aware of the breakdown of familial bonds in totalitarian states.
The authoritarianism has been on full display during Amy Hamm’s hearing. At one point, Findlay claimed that there is no debate in Canada. “Here,” she said, “the debate is settled.” Later on, she asked the panel to rule that Hamm stop saying “trans-identified male” and use the term “trans woman” instead, claiming that it was partly for the sake of clarity.
Nina K. Tryggvason, the co-author of the Girlfriend piece described above, pointed out the glaring irony that, earlier, Findlay had asked Dr. James Cantor, a witness for Hamm, when someone “assigned male at birth” would begin menstruating. While she may have misspoke, this is a good example of the fact that ideologically loaded and medically incorrect terms like “sex assigned at birth” do not help to make these conversations any clearer.
Tryggvason also informed me that she has filed a complaint about Findlay’s conduct at Hamm’s hearing with both the BC Law Society and the BC Minister of Justice. She has likewise reached out to the BC Ministry of Health, Health Canada, and the Federal Ministry of Justice to highlight not only the medically incorrect information presented by the BCCNM’s lawyers and witnesses but also the broader rights clash caused by trans activism. She encourages others to do the same.
The Hamm hearing has highlighted another constant in Findlay’s career: the betrayal of her own sex class. Every step of the way, from fighting for men to access women’s rape shelters and prisons to helping the BCCNM persecute Hamm for her views, Findlay has been working to dismantle women’s rights to our own spaces and services. Throughout the hearing, Hamm has repeatedly expressed that she advocates for the sex-based rights of women and girls. Findlay has framed this advocacy as discriminatory because she believes those rights also belong to trans-identified men and boys—effectively destroying the entire notion of women’s rights.
A final sticking point for me, and it is a personal one, is I do not understand Findlay’s lack of concern about the growing wave of young girls identifying as trans. Many of these girls are highly gender non-conforming and will likely grow up to be lesbians, just like Findlay and me. How is it possible to look at such girls and not be horrified that they are being ushered down a path to lifetime medicalization—a path that will very likely see them lose their breasts for no medical reason, diminish their sexual function, hinder their ability to form romantic relationships, and steal their fertility?
Activism should never cloud us to these human realities.
Eva Kurilova is a writer based in Calgary, Alberta. Please consider a donation to help fund her continued writing and research!
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