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Plaintiff as Activist for Human Rights (a special episode for PRIDE)

Hello, I am so excited to have you here on my show, The Experimental Leader Podcast. I’m Melanie Parish, and this is our pride show. So it is great to be here with you. And I have some very special guests today.

The first is actually my husband, Mel Rutherford. And I want to tell you a little bit about Mel. He’s a full professor in psychology, neuroscience and behavior. And he is the University’s first transgender department chair. The work in his lab is experimental psychology motivated by evolutionary theory. He has developed workshops and is written on the topics of radically inclusive leadership, formal consensus decision making and queer etiquette.

And I’ve invited him to be here with us today, because I wanted to talk with him about something that I’m really proud of as we enter this time, of queer pride, LGBTQIA+ pride…

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Mel, welcome to my show.

Happy to be here.

Oh, I’m happy to be here too. And I love that you’re flying the the rainbow flag over there. It’s great to have you. Well, um, do you want to? Do you want to talk a little bit about what we did together? 18 years ago? Well, we did a couple of things together.

18 years ago, we had babies. And we had we had some twins that and this week they’re graduating from high school. And in in line with the with our theme of being using being a plaintiff in order to get social justice done. We joined a lawsuit that’s now known as Rutherford versus Ontario. That was meant to get our names on our children’s birth certificates.

Yeah, and I think it’s so interesting. I’m noticing as you’re saying that out loud, like some people just have babies and then they like raise their kids. But sometimes, you know, when you’re queer, you get to see the government in order to, you know, when you have babies, and I think we knew we were going to do that. We so just, you could Google this, but we had really unique facts. So we used Mel’s eggs before he transitioned Mel’s transgender. And we used his eggs and I carried the baby. So we were both genetic parents of our kids. So we checked all the boxes. We are we were at the time Americans living in Canada. So we had two countries to try to get birth certificates from. And, and we actually knew when we decided on this method of getting pregnant, we did IVF. And when we did this, we knew we would probably sue the government in order to change the law. We were legally married, when our children were born. And so it felt like dirty pool that we would have to adopt our own child our own biological children at that point.

Yeah. So this was a class action case. And the the case had been put together before we joined it, it in the end, it was for couples. The other three couples were lesbians who had kids, and they had used artificial insemination. And they invited us to join the case, because we’d had a biologically stronger case we’d used to IVF. Both of us were biological parents. And it worked out the way they thought it would in that the government settled our case, our family’s case, before the whole class action case went to court. And so they used them, they could use our decision as a precedent when they went to court. And in the end, they all won. So all four of these families got put there, the parents got to put their names on their kids birth certificates, and it became a precedent setting case. So now in Ontario, when couples choose to use artificial sperm donor to make their families they get to put their names on the birth certificates.

Yeah, I think I think there’s a couple of like criteria like you have to be married. And it has to have to be an anonymous donor. No, no Not anymore.

Some of these couples weren’t married. Okay, that’s not a requirement, using an anonymous donor. If it was a known donor, they, they did have to go through an adoption.

And I think there may have been cases after hours, we aren’t legal experts, we’re just like, did our little piece of activism in the world. And I think it’s important, maybe just to talk about, I might just mentioned, so I was a biological parent, because I gave birth. And you were a biological parent because of gametes. And, and so either of those will establish biological parentage in both the US and Canada actually, and according to their own internal documents do want to talk about the US since this is, you know, my…

The way we make babies was confusing to both Ontario and the US and Ontario was going to say that you were a parent, and I was irrelevant. And then the US was gonna say, I was the parent, and you were not they were not going to include you in the paperwork. But either of those, you know, exclusions is ridiculous. So we had a very strong case going in. And in the United States, we did not become plaintiffs, we did not sue the US government, we just sat tight until the administration changed. And Hillary Clinton was the Secretary of State, and she gave us birth certificates with our names on. Yeah, that’s like this, that was much easier. But it wasn’t precedent setting and suing the government of Ontario was harder work, but it was precedent setting. So you kind of have to choose your battles, and the outcome will depend on whether or not you take it to court.

Well, it’s so interesting. I think that’s such an interesting point. And and I think, I’ve always said, this was like the easiest activism we ever did. Like we, you know, we joined an already existing class action suit, our lawyers worked pro bono, they actually got paid when the government lost their case. So they got paid by the government. This was like the easiest and most flashy sort of activism we ever done. We’ve done all sorts of activism over the years, but this one was, was easy, but it is something that I’m very proud of. And we’ve had friends who have benefited so many friends who have benefited from this case. And I also think that there’s something about our children, they just got through the process of writing their university applications and doing essays and things like that. And, and so we had a lot of conversations this year in our family about who they are about this case. So this case, they were plaintiffs, in this case, clearly, and yet, they had to really figure out like, who are they, in all of this? So they were like, well, that’s your story. But it’s a story.

They were they were suing the government of Ontario on the day they were born.

Yeah. And it’s really interesting. So we were having a conversation with one of our sons this morning, as we were driving him to school. And, and our boys don’t have any sort of fear of being perceived as gay. And they’re twins. They’re, they’re tall, they’re beautiful. They’re athletic, but they don’t have they’ve been a real lesson to me in what it looks like when kids grow up, and they’re not trying to prove to the world they’re not gay. So there’s, you know, they might paint their nails or my son today went off. It’s, it’s June 1, so it’s pride. And he went off in a crop top fried shirt. And both my boys at this moment, you know, are believe they’re 100%, heterosexual, but claim the title of queer spawn, but they could care less if someone thinks they’re gay, so they don’t have any behaviors, that that they’re trying to make sure no one thinks they’re gay, which makes them very interesting in the world. And I think I’m as proud of that as I am of anything else in this whole lawsuit.

Well, we have some very exciting guests to join us. I’ve invited some very interesting activists to join us in our conversation today. So I am going to introduce them and I can’t wait to extend this conversation. I am super excited to have our guests today. We have Lake James Paraguay who owns law works LLC in Portland, Oregon, and he focuses his legal work on civil rights, plaintiffs employment and injury claims constitutional law and family law. Lakes work includes cases in which families are litigating over custodial rights of trans children, where the party who is granted custody may decide about gender affirming medical care for the children, like a chant the first legal little recognition for a non binary person in the United States, which opened the doors to other states in the District of Columbia following suit, creating identity documentation and driving license regulations for non binary gender designation. Also, leg is one of my childhood friends, and I am so excited to have him here. Welcome Lake.

Hi, Melanie. It’s so great to see you. And I’m excited about our conversation.

I’m so excited about our conversation. And I also want to welcome Key Straughan who’s worked in education for over 25 years from teaching E-learners to kindergarteners and key is studying to become a psychotherapist with a specific to dot desire to help gender minorities deal with the minority stress and invalidation they face. He is an activist in the transgender community, organizing events and advocating publicly to advance trans rights. They blog about their experiences at www.keyhole.ca and perform under the drag name, their majesty the UK, we’re welcome to the show. Key. Thank you. I’m so excited to have this conversation, and Happy pride to everyone.

Yes, Happy Pride.

Well, I just wanted each of you. We’ve just talked about our story, and Rutherford V. Ontario. And I’d love to hear from you like the work about some of the work that you’ve been doing in the US to start with, could you tell us a little bit about the human rights work that you’ve been doing?

Yeah, so I represent sometimes prisoners who have had their constitutional rights violated by guards or by the prison system. I’ve advocated for transgender people who are in prison, who are seeking to change prisons to say, maybe from a male prison to a female prison, and to be housed with the prison population. consistent with their gender, I brought the legal case for marriage equality for the state of Oregon, when all of the states were kind of moving in that direction. I did that in our state. And then, as you mentioned, one of the bigger cases in my estimation is kind of opening the door legally for gender non binary people to have legal recognition. And that was, I think, four or five years ago now seems like a long time ago, because so many people are identifying as non binary. But at the time, there were very few people, no one had really ever heard of it. And there was no box on the legal forum at the court for gender change that included non binary. So that’s a sampling. Like you said, I also represent parents and sometimes kids, and custodial determinations in the courts, where the stakes are really high, because the parent who is granted legal custody, will be able to make medical decisions, or minors who are seeking gender affirming care.

Thank you, thank you so much for that sort of overview. And we’re gonna dive into those things a little more. And I key I’d love to know kind of a little bit of your journey as plaintiff as activist.

Um, you mean, specifically, the case that we’re going to be talking about today, or just in general,

Any, any of them big picture or what you’ve been up to? Or where, you know, I you and I know the reasons that I invited you on the show, but I’d love for us to share that with our audience.

Yeah, well, I’m i Gender transitioned around 2015. And in the beginning, I was going as a trans man using he him pronouns. And then as I moved along, in my experience, especially with the negative experiences that I was having with being a teacher in a female dominated environment, and the transphobia I encountered there, I went to a more non binary presentation just to be safe. Because I found there was a lot of hostility towards me. And in doing just coming along with transitioning, I had to involve myself with many institutions like changing my name, changing my legal status, and in so doing, I encountered a lot of cisgender norming like, these systems are made for cisgender people, so people whose identities match their assigned sex at birth. So I found that there was sort of an almost invisibility of trans and non binary into spirit and other gender minority people existing. So I ended up having to very rapidly find out how to fight for my rights. And usually I had to take it beyond whatever organization I was working with. I’m confronted. So that would usually be working with the I live in Ontario with the Ontario Human Rights Tribunal. And they have a pretty good system for challenging these systems. It’s very tedious. And very, it’s a lot of hard work. But I found myself doing that with many institutions like the Ontario College of Teachers, various hospitals. And finally, the Ministry of Transport and the police, which is probably what we’re going to talk about today.

Well, we can certainly talk about that now. So I found it so interesting, as we were sort of prepping for this call that lake had brought forth a case to have people be able to change their documentation to non binary. And I’d love for you to talk about that case. In Ontario for a minute.

Yeah, well, I actually, I wanted to change my license to non binary because I feel like it’s the states has no business, or the province has no business in my underpants, basically, and knowing my gender wasn’t that important. So I did want to change my license to an X, even before I was presenting more non binary with people, just in solidarity with other gender minorities. So I went as soon as Ontario allowed it, I think was in 2017, I changed my license to gender X. And it was quite a procedure. When I did it, a lot of I went, I had to go to an office and they had to call many people. And there was a whole group of people working there gathered around me, it was very othering. To do, but I did it. And I didn’t think any more of it. I thought this is great. We live in an inclusive system. Now I have a gender accent on my license. And I never, I didn’t really ever have any problems with it until I got a speeding ticket. And then that’s when the the problems began. I was driving to a doctor’s appointment in another city, because there’s no trans care in my city. And I was late. Excuse me, so I was speeding. And I got pulled over and, you know, normal everyday things, the police officer gave me a ticket. And then when he left, I saw that he had marked my gender or the computer that he ran it through and marked my gender as unknown. And I thought that was very strange, because I’ve gone through all this extra work of changing my gender marker. And I found it really insulting. So I actually call the the ticket office right away. And they informed me that gender unknown was for people who had driven through SOC, or traffic lights, and they taken a photo and because they wouldn’t know their gender, they just put gender unknown. And I explained well, but I was pulled over, the police officer saw my license, and he knew my gender, and why is it marked gender unknown, and they couldn’t tell me why. And I couldn’t get them to change it. So it really bothered me, because the next step would be going to court and speaking with the prosecutor trying to get a deal. And I would have to openly discuss my gender and out myself as a trans person in court. So it became very scary very soon for me. And I think that if I’m glad I didn’t have anything else going on, when the police pulled me over, because I’m not sure what would have happened if they had arrested me, for example, if I had something illegal in my car, like what would they have done? I would have probably been outed, maybe I would have been put into the wrong area. Because you know, gender is important to the police because of housing there at the jail. So I was very concerned. And I didn’t want to get it changed, because I thought, well, how come I’m invisible in this system, this is a problem. So what happened? Oh, my goodness, well, this happened. This started in May 2019. And I only resolved it in 2022. So the police managed to misgendering me for almost three years, I did an official complaint to the office of the police Review Board. And I had to go in and talk to them and talk to them about my gender and being trans and why it was important. And they refused to change the gender. And they insisted on letting the ticket stand because they felt that a ticket was more important and speeding was more important than my gender identity as a human being. And then so I had to go to the Human Rights Tribunal and sue the Ministry of Transport and the police. And before you get to court, they can they have a mediation and the Ministry of Transport admitted wrongdoing. Um, so I was able to settle with them. However, the police said, you know, this is the fault of the Ministry of Transport. And it’s not our fault, and we’re not going to remove the ticket and we’re not going to do anything. So even though the Ministry of Transport admitted it was a problem, and it was their fault and they settled with me. The police continued to insist that I show up in court and argue this ticket saying that I’m gender unknown. And I’ve even gone to visit the prosecutor. His name is Shawn Ramage. And he said you can quote me like sex is irrelevant to getting traffic tickets. And I was thinking, Well, why did I have to go through all that work to change my gender identity, my gender indication on the license, and why is it even on tickets if it’s around All events. So that statement was just a statement of privilege. It’s like people who say, I don’t see gender, I don’t see race, when you’re a white person, like they just have so much privilege, they have no idea that it is irrelevant. They just don’t notice because their privilege and they their gender, their assigned gender at birth matches who they are, and so it doesn’t stand out to them. So what ended up happening in the end was my lawyer, David shell, and I worked pro bono. And he said that I’m not going into court and arguing my gender, he would do it for me. And he contacted the prosecutor. And the prosecutor wanted to continue and had no idea why this was a problem, or that it was causing me mental dysphoria or upset, I’m being misgendered for three years. And then when the day came to, for him to be in court, the police officer didn’t show up. So the ticket was not able to be argued. So that’s how the police handled it. They they maintained and double down on the misgendering, right up to the very end. And so I didn’t, I didn’t actually have to argue the ticket. And it was quashed, simply because they refused to show up and argue it.

And, I mean, they’re wiping listeners who aren’t super savvy about issues like this. And this is a question for everyone, because I think everybody will have their own answers for this. But I mean, this wasn’t an expensive ticket. I mean, and you had a way to pay it. Yes. What was what’s important about not backing down? Like what taking the path of least resistance? Why didn’t you take the path of least resistance on this?

Um, well, one thing I’ve noticed, particularly about being a transgender person is that society is built to render gender minority people are invisible. So when trans person or two spirit person or non binary person shows up, it’s usually some sort of social emergency, they’re not included on forums, they’re not included in government documentation. You know, there’s no washroom for them, like, often. And so there’s a sense of invisibility. And I really see that rendering minorities invisible as part of transphobia. But also, I know what happens to other minority people too. So I feel like it’s important for my voice to be heard, because I’m aware of, there’s a long history of erasing gender, non binary people who’ve always historically existed. And I feel like it shouldn’t happen to other non binary people who, you know, everybody gets tickets for something or other and they should, if they’re paying taxes, and they’re getting tickets, and they’re participating in society, and being required to have the obligations of living in our society, they should also be recognized as equals.
And, like, I’d love to invite you to weigh in on like, why you’ve done some cases that not not the path of least resistance. And congratulations, by the way on the same sex marriage, and, you know, the the changing of documentation, these are powerful human rights changes, but why why put yourself out there?

And, like, I’d love to invite you to weigh in on like, why you’ve done some cases that not not the path of least resistance. And congratulations, by the way on the same sex marriage, and, you know, the the changing of documentation, these are powerful human rights changes, but why why put yourself out there?

Well, I’ve put myself out there. But so do the plaintiffs, you know, they these are oftentimes activists who want to change something for themselves, but many of them and most of the people that I’ve represented, really have a compassion for other people. And they see that the structures of government or even individuals who have harmed them in some way, we’ll continue to do that. So if unchecked, but, you know, the fact is that without a lawyer, they’re not really going to get any, anywhere. So in my case, I’m privileged, very privileged, I’m white, male, healthy, educated, with no debt, so no children, so I have the capacity to play in this lane, you know, it’s exciting. Um, they’re, they’re high stakes, and I can really make some change. And also, I actually can get paid in some of these. But it’s a deferred kind of payment, because oftentimes plaintiffs as activists, if they’re rich and powerful, if it’s Peter Thiel, he’s not going to get screwed around with he’s a billionaire gay, right. But a lot of people who are sexual minorities or other minorities, they get picked on or they get undermined, either intentionally or structurally. And they oftentimes don’t have the power to hire a lawyer at four or $500 an hour to litigate a case that’s going to take a year or longer. So I got to be in a position where I can defer payment or maybe not even get payment to help push society along, you know, and it’s just fun. It’s kind of fun for me sometimes. Other times I don’t want to look at the computer or look at paperwork or I don’t care about The plight of other people, but more often than not, I do so.

Mel, do you want to weigh in here?

Um, yeah. So we were talking about being being a plaintiff and the role of the plaintiff in social justice. And I’ve, you know, you we’ve talked about the Rutherford versus Ontario case. And recently, I’ve become a plaintiff. Again, I’ve experienced some pretty significant transphobia in the workplace. And for a variety of reasons, some of which I don’t understand the leadership in my institution hasn’t been able to create a supportive workplace for me. So I’ve, again, become a plaintiff, a plaintiff? And, you know, we were we were thinking about why some of the reasons that somebody might have to become a plaintiff, why is that the the right decision at that particular moment. And one of the things that I’ve noticed is that it sometimes is necessary when there’s a power imbalance. And that’s kind of the situation I’m in in my workplace. You and I have been listening to Loretta Ross and long Tran talking about calling in culture, creating a calling and culture where, instead of, instead of calling somebody out, you have a more gentle and more constructive conversation, that sort of correct someone’s behavior and maybe educates and creates understanding without shaming somebody or calling somebody out, which I think you and I both hold as an ideal and a value. But, but it’s really difficult to bring to a power imbalance, when you’re dealing with somebody who’s got power over you, it’s you, I’ve found that you sometimes don’t have the opportunity to have that constructive, calling in conversation. And with that, I found actually a feeling of disappointment in myself a feeling of like, I wasn’t able to harness my skills to create a constructive relationship. Two years ago, when I came into my came into the position I hold now, I’ve really felt confident that I knew how to create constructive relationships, you just you find the common values and goals, and then you build from there. And I’ve utterly failed to create a constructive relationship, I found my approach completely fruitless in this situation across a power balance. And, you know, that’s, I found that to be disappointing, but that’s where I am. And so I’m using the position as plaintiff to redirect the conversation or focus on awareness.

Well, and and I want to just mention something, and that is you may have been able, unable to build that relationship up. But you’ve very effectively built it down. You know, I think that there, you actually have 100% approval rating within the people that you supervise, which is highly unusual, and for any leader. And I’ve always said, you know, we’ve been together for a very long time now. And I’ve always said that I sort of know it’s transphobia. When it is weird, and it doesn’t make sense. It’s like, you’re going along doing life. And then something just bizarre happens, and you logically try to figure it out. And then you’re like, what just happened? I remember years ago, we had a bed and breakfast. And we had these guests, and they were like, gushing over how excited they were to be here and how beautiful the room was. And they loved it so much. And they were so excited. And then they saw our family pictures. And at that time, Mel presented fairly gender ambiguous. And all of a sudden, they had headaches and had to leave. And, um, and so it was, and I was like, and I kept saying, like, why do they have headaches? Really? They got sick in our house? Do we have a problem? Like, do we need to get somebody to clean our ducts? Like, what’s going on? And I think you were like, Melanie, they saw our family pictures. So it’s often the weirdest things that are happening that are the signal for it to be something because nobody comes to you and goes, Hey, dude, I hate you. Because you’re trans although I think you had somebody say something like that to you in college. But But I but nobody says that. So it’s always some weird thing that you’ve gotten wrong is the way that it appears you are wrong because of blah, blah, blah. Which is it’s so hard to get your feet so I think I just think it’s I think it’s really interesting to look for how it plays out. And it sounds like you you were treated that way. In your case, like what is wrong with you? Why won’t you just pay the ticket, are you and they treat you like you’re trying to get out of I don’t know how much was that ticket?

It was like a $200 are taken.

So are you so ridiculous that you won’t just pay $200, you’ll go through years of fighting to have your gender recognized? Like, what are you trying to get away with? So then you become almost criminal, while all you’re trying to do is get them to recognize the thing you put on your driver’s license?

Yeah, I think I think it’s interesting that the police still have managed to uphold the misgendering of me as well, like they were so determined, if they actually had changed the ticket, which they’re allowed to do, I would have had to pay the ticket. And they so they would have had the best of both worlds, which would be that they corrected something. And if they, you know, did the law as well, like they did their job. I find that when I first transitioned, I thought transphobia looked a certain way, too. And then I started realizing about microaggressions. And I called it inside thoughts, I could always tell the inside thoughts that people were having a really highly unusual way they were acting with me and the strange things they would say to me, like they made it really weird. I actually think cisgender people can be really weird, in a way that transgender people never could be, because we’re quite upfront about what we’re doing and who we are. Usually, and I think a lot of it has the importance of having the Ontario Human Rights Tribunal. And I know, I don’t know how it is in the States for like, but every province has some sort of tribunal to challenge systems because of privilege. And people have so much gender privilege, they’re not even aware of how different it is when you don’t fit in. And they know that pointing out someone’s gender is actually a weird thing to do. Because normally you just accept someone for who they are. So anytime you’re pointing out something about someone that’s usually unspoken, that that gets uncomfortable and weird for everyone. And I’ve also noticed that there’s a lot of focus on Well, my intentions were good, I had such good intentions. And the good thing about the Human Rights Tribunal and human rights in general is it’s the impact it looks at the impact on the person who is happening to so you can have wonderful intentions and be super positive towards trans people, for example, but you keep talking about it with them, and you won’t let it go. And, and you keep making mistakes and talking about why you made those mistakes and apologizing. Well, that becomes harassing to a trans person very quickly, and othering. So I mean, the focus is on the impact. And I find that that was very, very helpful for me accessing those courts. But I’m like, you mentioned your privilege, I’m privileged to like, I have a level of education, I’m a white person. And I live in a province where it’s free for me to take these people to court, and I get free legal support, which is amazing, but it’s also a huge pain to have to do it. It’s very invalidating. And I think that what a lot of people don’t understand is, it’s a traumatic invalidation. Like, if maybe a cisgender person was misgendered, they will be annoyed or upset, but it doesn’t happen to them, like every day for almost all their life, and it doesn’t cause them to have dysphoria and mental health issues. Like it would a trans person.
I’m curious for everyone to sort of weigh in, on when do you know it’s time to become a plaintiff or to file a lawsuit in your case, like, and how, what’s what’s what do you what, what’s the thing you bump up against? Or how do you query yourself? How do you? How do you think about that?

I’m curious for everyone to sort of weigh in, on when do you know it’s time to become a plaintiff or to file a lawsuit in your case, like, and how, what’s what’s what do you what, what’s the thing you bump up against? Or how do you query yourself? How do you? How do you think about that?

Well, when it came to the gay marriage case, that one was, I’ve been thinking about that my kind of my entire life, you know, and saw that as a obvious development in the laws and sloughing versus Virginia and separate but equal and all of these cases in the United States anyway, it just seems so obvious even in law school. And so I, I was, you know, there was some false starts, and I wasn’t part of that group of lawyers that were working on those and, and then, in that particular case, the Supreme Court had decided that Canadian Well, a prior case in the US called Windsor, the Windsor decision, and that involved a woman who had been married to a Canadian woman under New York law, and the question there was whether her estate was going to be taxed by the federal government, because her wife had died. And normally under American law, when your spouse dies, you’re not taxed. Everything goes to you. And it’s a tax free situation. So you had lesbians which everybody loves, and taxes, which everybody hates. And so it’s a great case, and that was Roberta Kaplan handled that case, and she’s the one who just won the big verdict against Trump in the United States. In any event, the one for sexual assault and defamation. In any event, in that case, it just like that was something I had worked on. I’ve been arrested, protesting the Texas sodomy laws that were later overturned by the US Supreme Court, in the Lawrence v. Texas case. So I was, you know, had my body on the line in the Texas State Legislature for that law, which later was at the Supreme Court. And then before the Windsor decision, I was actually in the Supreme Court the week before. So I was really writing that Zeitgeist in a particular way. And then I just knew that it was the right time, but I didn’t have a plaintiff. And it took conversations actually, with the Attorney General in Oregon. For me to meet up with a plaintiff, one of the Attorney General employees actually lived across the hall from a couple who later became my plaintiffs. So there, I kind of put that together, it was really my vision that was kind of pushing it. In other cases, someone will come to me and I have to make a determination do I want to take this case, I can easily file a case in a day, but then I’m stuck with it, you know, they’re very sticky. Oftentimes, people don’t have money. So I’m funding this, dreaming about it, thinking about it, doing all the work, and the plaintiffs are just back. They’re like, Oh, my lawyer called, and I’ve got this great case, and it’s all a cocktail party chat for them. And it’s also like, their lives, and very real, but I’m doing all the work, you know, really. So I have to decide, do I want to take on this work? Or do I want to pass and maybe somebody else will do it. But there is an urgency sometimes, because there are a lot of people who are doing this kind of work. And they’ve talked to 20 other lawyers, and no one wants to do it. And people are in law firms, and they don’t want to support this for whatever reason. So it’s, it’s a complex determination. Oftentimes, I just do I feel lazy today or, you know, angry and empowered. And and I say, as I get older, I’m less like, oh, no, and more. Ah, so. But I have a lot of young people that I that I tutor and promote encouraged to get into the fight.

Anybody else want to weigh in on when it’s time to become a plaintiff?

Um, yeah, I think that I was really good going on Mel, in some instances in his life, but um, I know to become a plaintiff, usually I tried to. So a lot of I have religious belief too. So I have, like, there’s a system in my religion where you have to like confront person, and then you go to the personnel above them, and then you know, it, you try to resolve it in steps. So I always try to progress. So there’s, whenever I sue someone, it’s never going to be a surprise to them. Because I will mention it very quickly. Like, I’ll say, You’re, this is not in, right, this is not in tune with the Ontario Human Rights Code. And here’s what I need to see happen. More training, or you need to correct these documents to include me, um, or, you know, this person did this, and they need training. And usually what happens is, I find nobody ever thanked me for pointing out their privilege or pointing out problems in their system. And usually what happens is, they say that they’re going to take action, and then they don’t, or they don’t take it very seriously. So then I have to escalate it. So if I have to escalate, and I don’t get results, that’s when I know I have to look at taking them to the Human Rights Tribunal. Because, um, you know, I feel like if I mentioned it once, it’s so clearly a human rights violation, they should just fix it immediately. And it’s good for whatever business or company or organization I’m dealing with, it’s actually quite good for them to have that progressive, like spirit about them, you know, it’s going to be welcoming to more people, a lot of people who have LGBTQ and Two Spirit people in their lives, see these little hands and signs that it’s welcoming as positive, it’s actually really has a good effect on the younger population. I’m always surprised that the institutions who fight me back though, it’s really shocking. Do you say like, we’re doing a great job, why are you so ungrateful? There’s a whole thing like you shouldn’t be grateful that we’re even tolerating you as a trans person right now. You know?

And, well, you talked about power imbalance. Is there anything else you want to add here?

I mean, for me, like in In both examples that we’ve talked about today, there was really a feeling of urgency, and it was different in the two cases. So in the most recent cases, I, you know, I felt I felt that I wasn’t safe, and wasn’t safe at work. And I it felt urgent that I do something about that. I didn’t feel like anybody else was going to fix that problem and create safety for me. So I felt urgent that I do that. And then the Rutherford versus Ontario case, the idea that I wouldn’t be related to my own children was absolutely unacceptable. So it was Something had to be done. So both so very different situations, but in both cases a feeling of urgency.

Well, and I think, yeah, with Rutherford, we Ontario. I mean, we didn’t have a different path, it was clear that in order to parent our children we, we knew before we got pregnant that we would sue the government in order to change the law.

Yeah, I have to say that lakes comments were really resonating with me with respect to the mother versus Ontario case, because we were like, mostly lying in bed during the whole time. We were suing the governor.

That was like the easiest when we joined a class action and…

Yeah, go lawyers. We’re working hard. And we’re like, oh, yeah, lawyers are calling. Let’s talk to them. Again.

We’re raising Baby Twins. So I think that was interesting. I also think about like times, that we get these sort of weird things that happen that are completely either homophobic or transphobic. And like, like, when we were trying to get pregnant, we actually were given documents where we would have both signed away our parental rights. So they gave me the gestational carrier documents, and Mel the egg donor documents. And we would have literally, and what I said to them was, who will raise the children. And whoever the, you know, like $15, an hour person who was handing us the forms was like, Well, I don’t know if we could do the procedure then. And if you know anything about IVF, this was like, hugely expensive procedure. And I was like, Maybe you should go talk to somebody else. I didn’t sue anybody over that. I was annoyed. And it’s a great cocktail story. And it exemplifies what it’s like to be queer, but I didn’t that didn’t meet that criteria for me. to sue someone, we were such an anomaly in their system, I didn’t feel like it would protect that many people, for us to sue them over that. So for me, that one wasn’t one that made me a plaintiff. But to actually, yeah, go ahead. Like I was just gonna…

I like this notion of calling in. Because sometimes, I mean, with variety of different cases, sometimes I’ll just file the lawsuit, you know, but other times, I’ll send a letter and, and be really not conciliatory, but just say, this is what’s happening to my client, or this is what’s happening in this situation? And are you open to communicating about it? I think, calling in. Yeah, it’s great. And I mean, people don’t get defensive. There’s not a lawsuit there. Sometimes, maybe I’ll draft the lawsuit and just say, Hey, can we call this in otherwise, here’s your name and the caption, right? I have one story just about that. Just anecdotally, there was a person who came to me and they had gotten all of their identity documents changed, and they had legally changed their gender, from male to female. But the one thing that was left was their life insurance policy. And so I just called someone at New York Life about it and got someone on the phone. And and the issue, though, there was that the mortality tables for women, or you know, women at birth are different than men at birth. And so it’s women actually have a longer lifespan, so they pay less per month for the same life insurance. And so that’s a permissible discriminatory pricing scheme based on the actual burial tables of people’s lives. But I asked him, what are what is the life expectancy of a trans person? And he’s like, Oh, well, actually, I don’t know. And so I’m just like, you don’t know. And there isn’t any data there. And you’re not basing it on that at all. And so you know, a trans woman is different, maybe has a different actuarial lifespan. So they just agreed to change it without litigation. And they gave my client a refund, because they had charged her under the male rate for so long. And so they got a big refund. And then they just agreed to change it. And they didn’t agree at that point to change it company wide, because it had never even come to them. But in that instance, we called it in, and they were happy happening to have a board meeting that week. And we’re really interested in this topic. And that was a positive, simple, and the non binary case to it was very simple. I didn’t have to do a big litigation. It was before all the culture wars in America were happening. So nobody had ever heard of a non binary person. And you know, that was great. But then after that, you know, then everybody so many other states started it and so calling in is great. I like it.

So I have a question for you all to sort of finish this, you know, off, and that is, what is something and it doesn’t have to be the most proud of, but what are you proud of? That you’ve done, as well? around, you know, these legal issues around activist plaintiff as activists, what’s something you’re proud of?

Well, like I can say, Rutherford versus Ontario, because it was precedent setting. And now, you know, families have been able to use it. In fact, some families who are in our friendship group have used this and their kids, they’re now related to their kids, because they use the precedent that we set when in Weatherford versus Ontario.

I guess I’m a lot of the battles that I’ve had, we’ve we’ve ended up mediating and settling, so they haven’t actually made it to court, which is a little problematic, because there’s not a lot of precedent or legal precedent, Ontario around trans issues. But I think what I’m most proud of, is just that my other trans friends see me doing this, and I can help them now, if they need to go to the Human Rights Tribunal. It’s a very tedious process, and I hate doing it. I’m most proud that I continue to do it, because people have the idea that you get a lot of money and you actually don’t, they’re very low awards. And, but I’m most proud because I usually ask for a public remedy, which is forcing a company to train their employees, forcing them to change policy. So I know that I’ve silently influenced a lot of the education sector, the Ontario College of Teachers, and a lot of hospitals. And now the Ministry of Transport. So I know that I have sort of a backdoor way of changing things, but not a lot of people know, I’ve actually done this and how many cases I’ve, I’ve done. And I have a lot more coming up. But part of me is like I should start blogging, I should probably just this is all public record. So I should put these things on public record so people can see. Right, so a lot of personal details about me are in there as well. But I think in the future, I’m going to start sharing some of my cases so that people can see that, what crazy level of problems that are for non binary and trans and Two Spirit people.

I guess I would say I’m most proud that I still and have been consistently willing and interested in this kind of work, because it doesn’t. I mean, it’s it’s not I’m not that interested in money and getting power. But I am interested in changing the world for the better a little bit. I mean, it really is it’s maybe sounds a little hokey. But that’s kind of how I’m motivated. So giving back, as my mom told me, who Melanie met when we were young. Yeah, and I think you were assessed spins together.

Nobody knew that you were testing. Yeah.

They really did, actually.

Oh, they did. Everyone knew we were Yeah, best gains together. Um, I think that a huge part of what happens is traumatic invalidation when you’re in systems that render you invisible. And I think that I’m also just most proud of the fact that I, I refuse to let people render me invisible, and render my community invisible. Because I know that a lot of my friends are tolerating it, and it happens to them. And I actually consistently fight that. And I think it’s important that my voice as a non binary trans person is heard.

And I think if I weigh in here, like, I’m kind of proud of brother for biancheria, like, I’m happy we did it. But I think some of the things I’m most proud of is like people with trans kids will, you know, bring their kids to swim in our pool. And like, we had one instance where they were like, oh, you know, our kids changing their name this week, and you’re the first ones to, you know, try it. Our kids will be like, okay, and they call that kid that name and that pronoun on that day. And then the same people came back on, you know, three days later, but they came with another family on they’re like, Oops, we gotta go back to the old name, because we haven’t told them and my kids are like, okay, just keep us in the loop. Tell us. So, I’m just like, the thing I’m most proud of, I think is the, the comfort my family has around. Transitions and also, like, they have deep compassion, because they’ve grown up around this. They have like, there’s been a lot of hugs in our house this year. And, and they are aware that things are happening, and they claim a queer spawn identity, which I think is really cool. And, and I think they deserve that identity. They they are very comfortable with all this. And I think by by, you know, by being willing to take on a lawsuit by talking about it by having friends talk about it by having friends in our lives that are out and have safe places to come out. We’ve created space, and I think I’m most proud of that space. And I’m also I’m proud that I’m still thinking about calling in even though Mel’s filed a lawsuit, like we’re still having that dialogue, we’re not just one thing. We’re all the things. So I guess that’s what I’m proud of. I have one more question. 

Before you,  I just wanted to say though you about creating a safe space when I started transitioning, so I actually taught Melly Mel’s kids in kindergarten before transitioning, and and they were a huge support to me when I like, even when I was teaching them I didn’t, I wasn’t aware I was a trans person. So when I finally did figure that out, they were a huge support to me as well. In Val, invaluable Actually, we met a lot at that time, and I received a lot of support from them. So I can definitely chime in on that that is something you should be proud of. And it’s something that I’m very grateful for. Thanks,
that you’ll make me cry. Okay, I have one more question, which is like, because we we did like, I still want us to end on like an activist, like fiery note, just like not a kumbaya, ya know, but like a fiery note. So confidentiality agreements, like, what do you think?

That you’ll make me cry. Okay, I have one more question, which is like, because we we did like, I still want us to end on like an activist, like fiery note, just like not a kumbaya, ya know, but like a fiery note. So confidentiality agreements, like, what do you think?

Say first, that they have a significant value. And I find that a lot of defense counsel, whether it be in the employment discrimination context, they say, Oh, well, these are standard. You know, we’re not talking about big civil rights cases against the state in my particular state. If the money if the money that’s being given is being given by the public trust, and it’s tax money, there’s a prohibition on confidentiality. So that’s not maybe the same in every province or state or country. But so my, my point is they have value. And so if somebody wants you, if they’re if they harm you in the first place, and then they want to wire your mouth shut after that, that is very expensive. So don’t don’t give away confidentiality agreements, freely, make them pay, they’re often taxable in a way that other settlements are not. And in the US anyway, confidentiality agreements are being legislated out of existence, little by little by little, so I don’t like them. I mean, if you want it, keep it private, then maybe you want to encourage that, but…

And I’ll say, I’m not just a trans man, I’m also a scientist. So I don’t I don’t like hiding the data. I like I want these stories to be told so that we can all look at them and analyze them and understand what’s happening here.

Exactly, yes. Learn to preside.

Yeah, I think that confidentiality agreements, usually silence the voice of the people who don’t have a voice normally, and then the loudest person spoke up, and then you know, you’re going to silence them by paying them off a huge amount of money. So I don’t like them either. But they do still exist here in Ontario and most settlements and our damages, which are tax free here. I don’t think public institutions should be able to do confidentiality agreements, especially if they’re using public money. And I think we’re starting to see that with the Canada hockey organization like they, they had a whole bunch of confidentiality agreements against the sexual abuse cases that came in sexual assault cases. I hope in the future, it’s going to go away because I think unions hide their failure to protect their employees. And I think that a lot of public places with public employees also hide their treatment, and how they’re spending the money of the taxpayers. That’s all I can really say about that. But yeah, I don’t like him.

It has been such a joy to be with all of you. Thank you so much for giving me your time. I’ve been fascinated by so many of the things that we’ve talked about. It’s just been so lovely to dive into this topic and to think about this whole idea of plaintiff as activist and just thank you from the bottom of my heart.

It’s been fun. Thanks.

Thank you.

—

Mel Rutherford

He is a Full Professor in Psychology, Neuroscience & Behaviour and the university’s first Transgender department chair. In his professional life and  personal life, he work towards Social Justice, and he take an evidence-based approach to issues of equity, diversity and inclusion. They share the goal of creating a workplace where each person can bring their whole selves to work, but what are the best practices for creating this safe workplace? As psychologists, and as scientists, they have some tools at their disposal to discern which approaches work, and which lead them astray. The work in his lab is experimental psychology motivated by evolutionary theory. They work on the questions of Social Perception and Social Perceptual Development. They study the perception of social categories, using both face-perception paradigms and essentialist paradigms. They use these approaches to explore evidence-based approaches to equity, diversity and inclusion. They are exploring developing psychological machinery underlying prosocial and moral behavior, and exploring whether they can expand the definition of the ingroup to extend their moral concern to a bigger circle . They study animacy perception, as the first developmental step in social cognition. Using eye-tracking technology, they study the development of autistic characteristics and of the broader autism phenotype.
He developed workshops and writings on the topics of Radically Inclusive Leadership, Formal Consensus Decision Making, and Queer Etiquette

Key Straughan

Key Straughan (they/them) has worked in education for over 25 years, from teaching ELL learners to kindergarteners. Key is currently studying to become a psychotherapist with a specific desire to help gender minorities deal with the minority stress and invalidation they face. Key is an activist in the transgender community, organizing events and advocating publically to advance trans rights. They blog about their experiences at www.thekeyhole.ca and perform under the drag name Their Majesty the Queer.

Lake James Perriguey

Lake James H. Perriguey owns Law Works LLC in Portland, Oregon where he focuses his legal work on civil rights, plaintiff’s employment and injury claims, constitutional law, and family law. Lake’s work includes cases in which families are litigating over custodial rights of trans children, where the party who is granted custody may decides about gender affirming medical care for the children. Lake obtained the first legal recognition for a non-binary person in the United States, which opened the doors to other states and the District of Columbia following suit, creating identity documentation and driving license regulations for non-binary gender designations. In addition, Lake handles prisoner rights cases and intellectual property matters in the United States District Courts.

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